Edwin Nolan and Joel Loehman v. William Henry Hunter, Jr. and Rhonda Hunter ( 2013 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-13-00072-CV
Edwin NOLAN and Joel Loehman,
Appellants
v.
William Henry Hunter, Jr. and Rhonda
William Henry HUNTER, Jr. and Rhonda Hunter,
Appellees
From the 433rd District Court, Comal County, Texas
Trial Court No. C2011-715D
Honorable Dib Waldrup, Judge Presiding
Opinion by: Karen Angelini, Justice
Sitting: Catherine Stone, Chief Justice
Karen Angelini, Justice
Rebeca C. Martinez, Justice
Delivered and Filed: September 25, 2013
AFFIRMED
This appeal arises from a dispute over the enforcement of restrictive covenants. The
appellees, Bill and Rhonda Hunter, bought a lot in the Emerald Valley Subdivision in Comal
County, Texas in February 2011. Shortly thereafter, the Hunters built a fence on their lot. The
appellants, Edwin Nolan and Joel Loehman, claimed the Hunters’ fence violated the subdivision’s
restrictive covenants, which required fences to be approved by an architectural control committee
and to be located at least fifty feet from the roadway. Nolan and Loehman are members of the
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subdivision’s architectural control committee, referred to as “the ACC.” Nolan also owns property
in the subdivision.
The Hunters sued the ACC, Nolan, and Loehman, seeking a declaration that the ACC was
no longer viable. The Hunters also sought a declaration that, even if the ACC was still viable, the
ACC and its members could not enforce the fifty-foot setback restriction as to the Hunters’ fence
because either (1) the location of the fence was deemed approved by the ACC’s failure to timely
respond to the Hunters’ proposal, or (2) the restriction was waived because the ACC allowed other
property owners to have fences that violated the fifty-foot setback restriction.
A jury found in favor of the Hunters, and the trial court rendered judgment on the jury’s
verdict. In this appeal, Nolan and Loehman argue (1) the trial court erred in rendering judgment
against the ACC, (2) the evidence was legally and factually insufficient to support the jury’s
finding that Nolan, as an individual property owner, waived his right to enforce the restrictive
covenants, and (3) the trial court erred in rendering a money judgment against Loehman
individually. We affirm.
BACKGROUND
The restrictive covenants at issue in this case were recorded in the Comal County deed
records on March 17, 1994. 1 These restrictive covenants provide that fences built on any lot in the
subdivision must be approved by the ACC and must set back at least fifty feet from the roadway. 2
1
The restrictive covenants in question are titled: “Second Amended Restrictive Covenants for Emerald Valley
Subdivision.” There is some indication that the original restrictive covenants were created in 1979; however, the
original restrictive covenants are not included in the record.
2
The restriction stated in relevant part,
No building, mobile home, fence or structure of any type shall be erected, placed or altered
on any lot until the design and construction plans and specifications and a plat showing the location
of the structure on said lot have been approved by the Architectural Control Committee as to the
quality of workmanship and materials, harmony of external design with respect to topography and
finish grade elevation. Under ordinary topographical circumstances, all residences, mobile homes
and fences will be required to be set back 50 feet from roadways bordering the lot… .
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The Hunters purchased their lot in the Emerald Valley Subdivision in February 2011. In
April 2011, the Hunters hired a contractor to build a fence along the front of their lot. While the
fence was under construction, Nolan approached the contractor and told him that the fence violated
the subdivision’s restrictive covenants, and that it needed to be removed by the following Monday
or Nolan would file a lawsuit and obtain a temporary restraining order. Nolan also talked to the
Hunters, advising them that he “[was] the [Architectural Control] Committee.” Nolan gave the
Hunters a business card, and told them they could submit a plan for their fence to the ACC at the
address listed on the card. The Hunters stopped construction on the fence, and on May 11, 2011,
submitted a plan in writing to the ACC. In the plan, the Hunters sought approval of a six-foot-high
wood fence to be constructed along the front of their property. The fence was located 27.7 feet
from the roadway bordering the Hunters’ lot.
On May 21, 2011, Nolan, individually and on behalf of the ACC, sent a letter to the Hunters
advising them that “the committee would be pleased to approve an attractive fence, such as a picket
or wrought iron fence, up to four and one-half feet in height.” The letter further stated, “A six foot
high privacy fence is out of the question and will not be approved.”
In June 2011, the Hunters filed the underlying lawsuit against the ACC and its three
individual members, Nolan, Loehman, and Sharon Gallagher. The Hunters eventually nonsuited
their claims against Gallagher. In the suit, the Hunters sought declaratory and injunctive relief.
Nolan, Loehman, and the ACC answered the suit. 3
In August 2012, the case was tried to a jury. The jury found that (1) the ACC had abandoned
its function; (2) the ACC failed to timely disapprove of the Hunters’ plan such that the Hunters’
3
According to their fourth amended original answer, Nolan and Loehman answered the suit “individually and as
representatives of the Emerald Valley Architectural Control Committee.”
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fence was deemed approved as to the location of the fence; (3) the ACC failed to appropriately
take up, deliberate, and consider the Hunters’ plan; (4) the ACC’s response to the Hunters’ plan
was arbitrary, capricious, or discriminatory; and (5) the ACC, Nolan, and Loehman waived any
right to enforce the restrictions as to the requirement that any fence must be at least fifty feet from
the roadway. The trial court denied Nolan’s and Loehman’s motion for judgment notwithstanding
the verdict, and rendered judgment on the jury’s findings. This appeal ensued.
THE JUDGMENT AND THE ACC
In issue two, Nolan and Loehman present multiple complaints about the judgment and the
ACC. As a preliminary matter, the Hunters argue the ACC is not a party to this appeal because it
failed to file a notice of appeal. The Hunters further argue that because the ACC did not appeal,
we may not address Nolan’s and Loehman’s complaints about the judgment and the ACC. In
response, Nolan and Loehman maintain that the ACC is a party to this appeal. They assert they
appealed the judgment both in their individual capacities and in their representative capacities as
members of the ACC.
“A party who seeks to alter the trial court’s judgment or other appealable order must file a
notice of appeal.” TEX. R. APP. P. 25.1(c). Furthermore, “[p]arties whose interests are aligned may
file a joint notice of appeal.” Id.
The record shows that Nolan and Loehman answered the Hunters’ suit “individually and
as representatives of the Emerald Valley Architectural Control Committee.” Nothing in the record
indicates that the Hunters challenged Nolan’s and Loehman’s authority to act as representatives of
the ACC, or that the trial court found that Nolan and Loehman were unauthorized to act as
representatives of the ACC. A single notice of appeal was filed. This notice of appeal states that
Nolan and Loehman are appealing the trial court’s judgment. When viewed as a whole, the record
supports the conclusion that Nolan and Loehman are appealing the judgment in their individual
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and representative capacities. We, therefore, address Nolan’s and Loehman’s issues regarding the
ACC.
1. Election of Remedies Doctrine
Nolan and Loehman first argue the judgment against the ACC violates the election of
remedies doctrine. “An election of remedies is the act of choosing between two or more
inconsistent but coexistent modes of procedure and relief allowed by law on the same state of
facts.” Custom Leasing, Inc., v. Tex. Bank & Trust Co., 491 S.W.2d 869, 871 (Tex. 1973). “When
a party thus chooses to exercise one of them he abandons his right to exercise his other remedy
and is precluded from resorting to it.” Id. “The doctrine is designed to prevent a party who has
obtained a specific form of remedy from obtaining a different and inconsistent remedy for the same
wrong.” Fina Supply, Inc. v. Abilene Nat’l Bank, 726 S.W.2d 537, 541 (Tex. 1987).
Here, Nolan and Loehman assert the judgment violates the election of remedies doctrine
because it states both that the ACC abandoned its function and that the ACC acted in an arbitrary,
capricious, and discriminatory manner. The Hunters presented alternative theories in this case, and
the jury made findings based on these alternative theories. All of the jury’s findings were
incorporated into the judgment; however, the judgment does not provide the Hunters different and
inconsistent remedies for the same wrong. Therefore, the judgment does not violate the election of
remedies doctrine. See id.
2. Failure to Join Other Property Owners
Next, Nolan and Loehman complain of the Hunters’ failure to join other Emerald Valley
Subdivision property owners in their lawsuit. This issue, however, was never raised in the trial
court. Because the issue was not raised in the trial court, it is not preserved for appellate review.
See Brooks v. Northglen Ass’n, 141 S.W.3d 158, 162-63 (Tex. 2004) (concluding a complaint
about the absence of other property owners in a declaratory judgment action was waived when it
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was not raised in the trial court); TEX. R. APP. P. 33.1 (providing that as a prerequisite to presenting
a complaint for appellate review, the record must show that the complaint was made to the trial
court).
3. Sufficiency of the Evidence to Support the Jury’s Findings
The jury made four specific findings with respect to the ACC. Nolan and Loehman
challenge the sufficiency of the evidence to support two of these findings. First, Nolan and
Loehman challenge the legal sufficiency of the evidence supporting the finding that the ACC failed
to act timely in response to the Hunters’ proposal. Second, Nolan and Loehman challenge the legal
and factual sufficiency of the evidence to support the jury’s finding that the ACC acted in an
arbitrary, capricious, or discriminatory manner as it related to requiring “an attractive fence, such
as a picket or wrought iron fence, up to four and a half feet in height.”
When reviewing a jury finding to determine the legal sufficiency evidence, we credit
favorable evidence if a reasonable juror could and disregard contrary evidence unless a reasonable
juror could not. Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. Nat’l Dev. & Research Corp., 299
S.W.3d 106, 115 (Tex. 2009); City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). Evidence
is legally sufficient if it rises to a level that would enable reasonable and fair-minded people to
differ in their conclusions. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004). We
sustain a legal sufficiency or no-evidence challenge only if: (1) the record reveals a complete
absence of evidence of a vital fact; (2) the court is barred by rules of law or of evidence from
giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove
a vital fact is no more than a mere scintilla; or (4) the evidence establishes conclusively the
opposite of the vital fact. Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997).
If there is more than a scintilla of evidence to support the finding, the no-evidence challenge fails.
BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002).
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When reviewing a jury finding to determine the factual sufficiency of the evidence, we
examine the entire record and consider and weigh all the evidence, both in support of and contrary
to the challenged finding. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996). When, as here, a party
attacks the factual sufficiency of an adverse finding on which it did not have the burden of proof,
we set aside the finding only if the evidence is so weak as to make the finding clearly wrong and
manifestly unjust. See Star Enter. v. Marze, 61 S.W.3d 449, 462 (Tex. App.—San Antonio 2001,
pet. denied) (citing Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986)).
First, Nolan and Loehman argue the evidence was legally insufficient to establish that the
ACC failed to timely disapprove of the plans such that the Hunters’ fence was deemed approved.
The jury was asked: “As it relates to the location of the Hunters’ fence as set forth in the Hunters’
plans, do you find that the ACC failed to timely disapprove of those plans in writing such that the
location of the Hunters’ fence was ‘deemed’ approved pursuant to the last sentence of Paragraph
2 of the Restrictions?” The jury answered: “Yes.”
The last sentence of Paragraph 2 of the Restrictions provided:
The Committee’s approval or disapproval as required in these covenants shall be
set out in writing and in the event the committee or its designated representative[]
fails to approve or disapprove the plan within thirty (30) days after said plans and
specifications have been submitted to it, approval will not be required and the
related covenants shall be deemed to be fully complied with.
The evidence showed that on May 11, 2011, the Hunters submitted a plan for their fence
to the ACC. In the plan, the Hunters proposed a six-foot high wood fence, located 27.7 feet from
the roadway. On May 21, 2011, Nolan sent a letter to the Hunters advising them that “the
committee would be pleased to approve an attractive fence, such as a picket or wrought iron fence,
up to four and one-half feet in height.” The letter further stated, “A six foot high privacy fence is
out of the question and will not be approved.” The letter, however, was silent as to the proposed
location of the fence. Viewing the evidence in the light most favorable to the jury’s finding, we
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conclude the evidence was legally sufficient to support the jury’s finding that the location of the
Hunters’ fence was deemed approved.
Second, Nolan and Loehman argue the evidence was legally and factually insufficient to
establish that the ACC’s response to the Hunters’ plan was arbitrary, capricious, or discriminatory.
The jury was asked: “Was the response to the Hunters’ plans arbitrary, capricious, or
discriminatory as it relates to requiring ‘an attractive fence, such as a picket or wrought iron fence,
up to four and [a] half feet in height?’” Again, the jury answered: “Yes.” 4
There was ample evidence from which the jury could conclude that the ACC’s response to
the Hunters’ plan was arbitrary, capricious, or discriminatory. The evidence showed that the ACC
consisted of three members: Nolan, Loehman, and Gallagher. Gallagher testified she never
executed any kind of proxy, nor did she otherwise authorize Nolan to act on her behalf, with regard
to her position on the ACC. According to Gallagher, she did not receive a copy of the plan
submitted by the Hunters, nor did Nolan consult with her before he wrote the May 21, 2011 letter
responding to the Hunters’ plan. Nevertheless, the letter was printed on letterhead containing the
names of all three ACC members. The letter stated, “I have reviewed the contents of your letter
with other members of the committee, and we all agree that…the committee would be pleased to
approve an attractive fence, such as a picket or wrought iron fence, up to four and one-half feet in
height. A six foot high privacy fence is out of the question and will not be approved.” The letter
was signed by Nolan in his capacity as a member of the ACC. In addition, the letter expressly
4
Section 202.004(a) of the Texas Property Code provides:
An exercise of discretionary authority by a property owners’ association or other representative
designated by an owner of real property concerning a restrictive covenant is presumed reasonable
unless the court determines by a preponderance of the evidence that the exercise of discretionary
authority was arbitrary, capricious, or discriminatory.
TEX. PROP. CODE ANN. § 202.004(a) (West 2007).
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rejected a “six foot high privacy fence,” even though there were other fences in the subdivision
measuring six feet or more in height. There was also evidence that at the time the letter was written,
there were other wood, “privacy” fences similar to the fence proposed by the Hunters. We conclude
the evidence was legally and factually sufficient to support the jury’s finding that the ACC’s
response to the Hunters’ plan was arbitrary, capricious, or discriminatory.
4. Improper Question for the Jury
Finally, Nolan and Loehman argue the jury’s finding that the ACC failed to appropriately
take up, deliberate, and consider the plans submitted by the Hunters was not a fact question for the
jury but a legal question for the trial court. However, Nolan and Loehman cite no authority to
support this argument in their brief. This argument is inadequately briefed and is therefore waived.
See TEX. R. APP. P. 38.1(i)(stating an appellant’s brief must contain appropriate citations to
authorities); see also Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284 (Tex.
1994) (discussing the “long-standing rule” that a point may be waived due to inadequate briefing).
NOLAN AND THE JURY’S WAIVER FINDING
In issue one, Nolan argues that, even if the ACC abandoned its function, he had a separate
right to enforce the restrictive covenants because he was a property owner in the subdivision. Nolan
argues the evidence was legally and factually insufficient to support the jury’s finding that Nolan,
as an individual property owner, waived his right to enforce the restriction requiring fences to be
at least fifty feet from the roadway, hereinafter referred to as “the restriction.”
To establish waiver in a restrictive covenant case, the nonconforming property owner must
prove that the then-existing violations are so great as to lead the mind of the average person to
reasonably conclude that the restriction in question has been abandoned and its enforcement
waived. Uptegraph v. Sandalwood Civic Club, 312 S.W.3d 918, 935 (Tex. App.—Houston [1st
Dist.] 2010, no pet.); Jim Rutherford Inv., Inc., 25 S.W.3d 845, 851 (Tex. App.—Houston [14th
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Dist.] 2000, pet. denied). Among the factors to be considered by the average person are the number,
nature, and severity of the then-existing violations, any prior acts of enforcement of the restriction,
and whether it is still possible to realize to a substantial degree the benefits intended through the
covenant. Uptegraph, 312 S.W.3d at 935; Rutherford, 25 S.W.3d at 851. Waiver is ordinarily a
question of fact. Tenneco Inc. v. Enter. Prods. Co., 925 S.W.2d 640, 643 (Tex. 1996).
Here, the jury was asked whether Nolan, Loehman, and the ACC waived any right to
enforce the restriction requiring fences to be at least fifty feet from the roadway. The jury’s answer
to this question was “Yes.” At trial, the jury heard testimony from numerous witnesses including
Bill Hunter, Nolan, and several other subdivision property owners.
In his testimony, Bill Hunter listed twenty-one lots in the subdivision with fences located
less than fifty feet from the roadway. Hunter further indicated this list was not comprehensive.
Hunter took photographs of the noncomplying fences and measured the distances between the
fences and the roadway. These photographs were admitted into evidence. Most of the
noncomplying fences identified by Hunter were closer to the roadway than the Hunters’ fence. In
addition, some of the properties that had noncomplying fences were owned by Nolan or a company
owned by Nolan. The lot next to the Hunters’ lot was owned by King Lake Aviation, a company
owned by Nolan. When the Hunters built their fence, this lot had a fence that was located less than
twenty-five feet from the road. Nolan and another man removed the fence in December 2011, after
the underlying lawsuit was filed. Another subdivision lot, occupied by Joe Pope, had a wood
privacy fence located ten feet from the road. The evening before trial, Hunter watched Nolan and
a couple of other men take down the noncomplying fence.
Donald Dwayne Moser testified that he had bought two lots in the subdivision two and a
half years ago. Moser was in the process of building a house on one of these lots. When he started
building his house, Moser was unaware of the restrictive covenants or the ACC. On October 28,
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2011, Moser received a letter from the ACC, stating that his house violated the restrictive
covenants. Moser talked to Nolan about the allegations in the letter and about the Hunters’ lawsuit.
During this conversation, Nolan admitted to Moser that there were “a bunch of violations” of the
restrictive covenants in the neighborhood. Nolan told Moser he was “going to start taking people
to court and getting everything straightened out.”
Another subdivision property owner, Dottie Litchfield, testified her husband built a fence
on her lot in 1999. Litchfield never sought approval of her fence from the ACC. Litchfield’s fence
was located less than fifty feet from the roadway. In 2002, Nolan was living on the lot across the
street from Litchfield’s lot. Litchfield recalled that she and Nolan had had a conversation while
standing near the front of her lot. Nolan could clearly see Litchfield’s noncomplying fence. But
Nolan never mentioned to Litchfield that her fence violated the restriction, and Nolan never took
any action regarding Litchfield’s fence. In 2009, Litchfield removed the fence and replaced it with
another fence. The new fence was in the same location. Again, Litchfield did not submit a plan to
the ACC. It was not until December 2011, about six months after the Hunters filed the underlying
lawsuit, that Litchfield received a letter from Nolan complaining about the location of her fence.
Charles Patty, who also lived in the subdivision, testified that he had built a fence on his
property in 2008. Part of Patty’s fence was located along the front of his lot about twenty feet from
the road. No one had formally complained about the fence. However, an unidentified person had
once driven by in a car and told Patty’s father-in-law to move the fence because it was too close
to the road. Patty was not exactly sure when this happened, but he thought it was some time in
2011 or 2012.
Robert Johannessen testified that in 2004 he had bought a lot from Nolan in the subdivision.
Shortly after buying the property, he built a fence in the back yard. He did not submit a plan to the
ACC prior to building the fence. After the fence was built, Nolan visited Johannessen’s house.
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According to Johannessen, Nolan had to have noticed the newly-constructed fence. However,
Nolan never said anything to Johannessen about his failure to obtain the ACC’s approval of the
fence.
Finally, Nolan testified that he is a lawyer and he knows “quite a bit about developments.”
In fact, Nolan was the lawyer who drafted the Second Amended Restrictive Covenants for the
Emerald Valley Subdivision. At the time of trial, Nolan owned “several [rental] properties” in the
subdivision. Nolan admitted that his corporation, Canyon Lake Aviation, Inc., owned twenty lots
in the subdivision in early 2012. By the time of trial, several of these lots had been sold. Nolan
also acknowledged he was providing seller-financing on thirteen lots in the subdivision. Nolan
said he retained an interest in these thirteen lots and it was possible that the lots would revert back
to him in the future. Nolan estimated that over the last ten years he had had an interest in about
seventy lots in the subdivision. Nolan admitted that he had never filed a lawsuit to enforce any of
the restrictive covenants.
1. Violation Rate
In challenging the jury’s finding, Nolan argues the evidence was insufficient to support the
jury’s finding as a matter of law based on the violation rate. The violation rate shows the number
of properties subject to the restriction relative to the number of violations. Nolan maintains that
the evidence showed a 6.8% violation rate in the subdivision. According to Nolan, a 6.8% violation
rate is insufficient as a matter of law to support a finding of waiver under Texas law. We reject
Nolan’s argument for two reasons.
First, waiver is a fact-intensive inquiry involving multiple factors. See Uptegraph, 312
S.W.3d at 935; Rutherford, 25 S.W.3d at 851. “While the violation rate is an important and often
compelling consideration, it is not the only factor in the analysis.” City of Houston v. Revels, 2001
WL 699546, at *2 (Tex. App.—Houston [14th Dist.] 2001, pet. denied) (mem. op.) (not designated
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for publication) (recognizing its prior decisions finding that violation rates ranging from 1.9% to
8.9% were insufficient to support a waiver of restrictions). Even the cases cited by Nolan in support
of his argument show that courts analyze multiple factors when determining whether or not a party
has waived the right to enforce a restrictive covenant. See, e.g., Uptegraph, 312 S.W.3d at 935-36;
Stephenson v. Perlitz, 537 S.W.2d 287, 289-90 (Tex. Civ. App.—Beaumont 1976, writ ref’d
n.r.e.).
Second, the evidence in this case did not establish a violation rate. Nolan relies on his own
testimony to establish the total number of lots in the subdivision, and the Hunters’ evidence to
establish the total number of lots violating the restriction. Nolan testified there were “pretty close
to 424 lots in the subdivision.” According to Nolan, the Hunters’ evidence established twenty-nine
violations of the restriction. But Nolan mischaracterizes the evidence presented by the Hunters.
The Hunters did not present evidence of the total number of lots in the subdivision violating the
restriction. Rather, the Hunters presented evidence identifying some of the lots violating the
restriction.
2. Knowing and Voluntary Relinquishment of Right to Enforce/Material and
Substantial Effect
Next, Nolan argues there was “no evidence” that the other violations of the restriction
materially affected him, or that he knowingly and voluntarily relinquished his right to enforce the
restrictive covenants.
Generally, waiver can be asserted against a party who intentionally relinquishes a known
right or engages in conduct inconsistent with claiming that right. Tenneco Inc., 925 S.W.2d at 643.
Waiver can be established by a party’s express renunciation of a known right, or by his silence or
inaction for so long a period as to show an intention to yield the known right. Id.
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A property owner may waive his right to complain of a violation of a restriction by failing
to object to other violations. See Stewart v. Welsh, 178 S.W.2d 506, 508 (Tex. 1944); Garlington
v. Boudreaux, 921 S.W.2d 550, 553 (Tex. App.—Beaumont 1996, no writ). However, a property
owner is not required to complain of a violation of a restriction if the violation is merely trivial or
does not materially affect him. Stewart, 178 S.W.2d at 508; Garlington, 921 S.W.2d at 552-53.
“‘[A] violation of a restrictive covenant at a point on a tract distant from the lot of an individual
lot owner may be of no interest whatever to such an owner, and cannot appropriately call for
affirmative action on his part.’” Spencer v. Maverick, 146 S.W.2d 819, 824 (Tex. Civ. App.—San
Antonio 1941, no writ) (quoting Ward v. Prospect Manor Corp., 206 N.W. 856, 859 (Wis. 1926)).
In evaluating waiver, courts distinguish between the rights of an individual property owner and
the rights of a proprietor, such as a subdivider. Garlington, 921 S.W.2d at 553; Spencer, 146
S.W.2d at 824. This distinction arises from the fact that a “‘proprietor is or may be directly
interested in violations of such covenants upon any part of the entire tract, and acquiescence on
his part may appropriately deny him the equitable right to enforce the covenants.’” Spencer, 146
S.W.2d at 824 (quoting Ward, 206 N.W. at 859).
Here, the evidence showed Nolan had ownership interests in many lots in the subdivision.
Thus, Nolan was not a mere individual property owner. The evidence also showed that Nolan had
owned lots in close proximity to lots that had fences violating the restriction. For example,
Litchfield’s fence violated the restriction for more than a decade. Nolan occupied a lot across the
street from Litchfield. But Nolan never complained about Litchfield’s fence. Litchfield then built
a second fence that violated the restriction. Nolan did not complain about Litchfield’s second fence
until after the underlying lawsuit was filed. In addition, the evidence showed that Nolan’s company
owned two lots with fences that violated the restriction. One lot, a rental property, was next to the
Hunters’ lot. The fence on this property was not removed until December 2011, approximately six
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months after the underlying lawsuit was filed. Furthermore, the evidence showed that Nolan
admitted to another property owner, Moser, that there were “a bunch of violations of the restrictive
covenants” in the subdivision. Nolan also indicated to Moser that he was going to have to start
enforcing the restrictive covenants.
Based on this evidence, the jury could have reasonably concluded that Nolan was
materially affected by other violations of the restriction, and that Nolan intentionally relinquished
his right to enforce the restriction or engaged in conduct inconsistent with claiming that right.
3. Non-Waiver Provision
Nolan finally argues the evidence was insufficient to support the jury’s waiver finding
because of a purported nonwaiver provision in the restrictive covenants. Nolan does not expressly
identify the purported nonwaiver provision in his brief; however, the record indicates Nolan is
referring to Paragraph 12 in the restrictive covenants, which states: “An uncorrected violation of
one of these restrictions by one or more lot owners in the subdivision shall not invalidate the
restriction with respect to future violations of that restriction.”
To support his argument, Nolan cites Musgrove v. Westridge Street Partners I, LLC, No.
2-07-281-CV, 2009 WL 976010 (Tex. App.—Fort Worth 2009, pet. denied). In Musgrove, the
appellants argued the appellee’s abandonment/waiver defense was precluded as a matter of law
based on a nonwaiver provision in the restrictive covenants. Id. at *4. The Fort Worth Court of
Appeals rejected this argument, citing cases holding that nonwaiver provisions, like other
contractual provisions, can be waived. Id. (citing A.G.E., Inc. v. Buford, 105 S.W.3d 667, 676
(Tex. App.—Austin 2003, pet. denied); Winslow v. Dillard Dep’t Stores, Inc., 849 S.W.2d 862,
863-64 (Tex. App.—Texarkana 1993, writ denied)). The court recognized that at least one Texas
court had held that “the existence of [a] nonwaiver provision raised a fact issue on waiver.” Id.
(citing TX Far West, Ltd. v. Texas Inv. Mgmt., Inc., 127 S.W.3d 295, 306 (Tex. App.—Austin
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2004, no pet.)). The court then agreed with the holding of an Arizona court that a nonwaiver
provision would be ineffective if a complete abandonment of the restrictions had occurred. Id.
(citing Burke v. Voicestream Wireless Corp. II, 87 P.3d 81 (Ariz. Ct. App. 2004)). To resolve the
issue concerning the nonwaiver provision, the court reviewed the record for evidence of
abandonment of the restrictive covenants. Id.
In the present case, the jury was instructed:
To establish waiver, the Hunters must prove that the violations of others in the
Subdivision have been allowed and are so great as to lead the mind of the average
person to reasonably conclude that the restriction in question has been abandoned.
The time to consider waiver is when the party seeking to enforce the Restriction
against the Hunters first asserted the applicability of the Restrictions and urged its
removal in April, 2011. In determining whether a restrictive covenant has been
waived, the factors that may be considered include the number, nature, and severity
of the then-existing violation(s), any prior acts of enforcement of the restrictions,
and whether it is still possible to realize to a substantial degree the benefits intended
through the Restriction. The last sentence of Paragraph 12 of the Restrictions is not
determinative, as the focus of waiver is whether the Defendants allowed or
tolerated other violations, and a non-waiver provision can itself be waived if there
is evidence that violations of this Restriction are so pervasive that it subverts the
general scheme or plan contemplated in the Restrictions.
(emphasis added).
Here, the jury was instructed that the purported nonwaiver provision in this case was “not
determinative” in part because “the focus of waiver is whether the Defendants allowed or tolerated
other violations.” Nothing in the record shows that Nolan objected to, or otherwise complained
about, this jury instruction. As previously discussed, the jury’s finding that Nolan waived his right
to enforce the restriction was supported by sufficient evidence. Accordingly, we reject Nolan’s
argument that the evidence was somehow insufficient because of the purported nonwaiver
provision in the restrictive covenants.
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04-13-00072-CV
THE JUDGMENT AND LOEHMAN
The judgment provides that the Hunters “are entitled to recover of and from Defendants
Edwin Nolan, Joel Loehman, and Emerald Valley Architectural Committee (“ACC”), jointly and
severally, the sum of $30,000.00, which monetary judgment is for attorneys’ fees as found by the
jury.” In issue three, Loehman argues the trial court erred in rendering a money judgment against
him individually, in the absence of any “individualized, adverse” findings against him. However,
Loehman cites no authority in support of this argument. Loehman’s argument is inadequately
briefed and is therefore waived. See TEX. R. APP. P. 38.1(i) (stating an appellant’s brief must
contain appropriate citations to authorities); see also Fredonia, 881 S.W.2d at 284 (discussing the
“long-standing rule” that a point may be waived due to inadequate briefing).
CONCLUSION
We overrule all of the issues presented in this appeal, and affirm the trial court’s judgment.
Karen Angelini, Justice
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