H. Robert Rose and Gaynell Rose v. Nicholas & Doris Bonvino ( 2015 )

AFFIRM; and Opinion Filed August 11, 2015.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-14-00702-CV
H. ROBERT ROSE AND GAYNELL ROSE, Appellants
V.
NICHOLAS AND DORIS BONVINO, Appellees
On Appeal from the 199th Judicial District Court
Collin County, Texas
Trial Court Cause No. 199-2450-06
MEMORANDUM OPINION
Before Justices Bridges, Lang, and Schenck
Opinion by Justice Schenck
The trial court found that appellants H. Robert Rose and Gaynell Rose built a fence on
their property in violation of a permanent injunction, and granted the motion of appellees
Nicholas and Doris Bonvino to enforce the injunction. We affirm the trial court’s order.
Because the issues are settled in law, we issue this memorandum opinion. TEX. R. APP. P. 47.4.
BACKGROUND
The parties are owners of adjoining property whose homes overlook a golf course. The
Roses built a fence that blocked the view from the Bonvinos’ home. The ensuing legal dispute
has lasted almost a decade.
In 2007, the trial court rendered judgment against the Roses after a bench trial. The
judgment provides in relevant part that the court:
ORDERS that the Roses, within thirty (30) days of the date this Final
Judgment is signed, reduce the height of their fence along the golf course
(i.e., the approximately thirty three (33) linear feet of wood fencing along
the southerly boundary of 5418 Harbor Town and the northerly boundary of
the triangular protrusion from 5414 Harbor Town) to comply with the six
(6) foot maximum height limitation for fencing, walls, and hedges set forth
in paragraph 6 of the Covenants and Restrictions on and for Bent Tree
North—Phase One recorded in Volume 1146, Page 215 of the real property
records of Collin County, Texas, in the manner depicted in DIAGRAM 1
and PHOTOGRAPH 2 and PERMANENTLY ENJOINS the Roses, their
successors-in-interest, and all persons acting in concert with them, from
thereafter erecting, placing, or altering any fencing, wall, or hedge in excess
of six (6) feet in height without the approval of the architectural control
committee of the BTN—Phase One Subdivision pursuant to the deed
restrictions.
The judgment includes both a photograph and a diagram of the fence. The diagram includes an
instruction to “Reduce fence to no more than 6 feet in height, Measured from unimproved
grade.” The photograph depicts the fence, with arrows pointing to the “unaltered and
unimproved grade” and to the places where measurements should be taken. Footnote 1 of the
judgment states that “The height limitations shall be measured from the unimproved and
unaltered grade as it existed when the Roses initially erected the rear fence to the top of the
fence.”
After the trial court rendered its judgment, the Roses tore down the original fence. But in
2012, the Roses erected a new fence (the “2012 fence”). After a series of hearings, first on the
Bonvinos’ motion for contempt, and then on their motion to enforce the trial court’s judgment,
the trial court found that the 2012 fence “exceeded 6 feet in height measured from unaltered and
unimproved grade,” and that the Roses did not obtain approval from the architectural control
committee (ACC) before constructing the 2012 fence. Based on the testimony of a member of
the ACC, the trial court also found that when the Roses sought belated approval of their already-
constructed 2012 fence, the ACC denied the request because:
(a) The requested fence is outside of the [sight] line of the 5414 Harbor
Town [the Roses’ home], providing no benefit to the Roses;
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(b) Unlike wooden side-yard fences located elsewhere, the 2012 Fence, or
any wooden fence erected in that location, significantly burdens the owners
of 5418 Harbor Town [the Bonvinos’ home] by directly interfering with
their unique golf course views and denying the owners of 5418 Harbor
Town the enjoyment of their property;
(c) Such a fence constitutes “an annoyance or nuisance” prohibited by the
applicable deed restrictions the terms of which are incorporated into the
Final Judgment.
These findings are contained in the trial court’s May 9, 2014 order granting the Bonvinos’
motion to enforce the judgment, which also provides:
Based on these findings, the Court concludes that H. Robert Rose and
Gaynell Rose and the 2012 Fence violates the decrees in the Final
Judgment, and the Court, therefore,
ORDERS that H. Robert Rose and Gaynell Rose, within 30 days after this
Order is signed, remove, or cause to be removed, the existing wooden fence
erected along the southerly boundary of 5418 Harbor Town and the
northerly boundary of the triangular protrusion from 5414 Harbor Town;
ORDERS that the permanent injunction in the Final Judgment shall continue
in full force and effect and that, in light of the finding by the ACC and this
Court that a fence in the location of the 2012 Fence constitutes a prohibited
annoyance or nuisance, orders that the Roses, their successors-in-interest,
and all persons acting in concert with them, are permanently enjoined from
erecting, placing, or altering any fencing, wall, or hedge without the prior
written approval of the architectural control committee or the Board of
Directors of the BTN—Phase One Subdivision, along the southerly
boundary of 5418 Harbor Town and the northerly boundary of the triangular
protrusion from 5414 Harbor Town.
This appeal followed. In two issues, the Roses contend the trial court (1) abused its
discretion in modifying the permanent injunction because there were no pleadings or evidence of
changed conditions or circumstances to support the trial court’s order requiring the Roses to
obtain approval from the ACC for any fence not over six feet in height; and (2) erred by ordering
removal of the 2012 fence because the issue was moot.
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STANDARD OF REVIEW
Trial courts have broad discretion in the enforcement of their judgments. Katz v. Bianchi,
848 S.W.2d 372, 375–76 (Tex. App.—Houston [14th Dist.] 1993, no writ). We review the trial
court’s order using an abuse of discretion standard. Greiner v. Jameson, 865 S.W.2d 493, 498
(Tex. App.—Dallas 1993, writ denied). The test for abuse of discretion is whether the court
acted without reference to guiding rules and principles. Id. (citing Downer v. Aquamarine
Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985)).
DISCUSSION
1. Scope of trial court’s order
The Roses’ first issue is premised on their contention that the trial court’s order modified
its permanent injunction without a showing of changed circumstances. The Roses do not
otherwise challenge the trial court’s enforcement of its judgment.
A. Enforcement of judgment
The trial court did not err by ordering the Roses to remove their “existing wooden fence.”
Even without a showing of changed circumstances, a trial court not only may, but must enforce
its own judgments. In re Crow-Billingsley Air Park, Ltd., 98 S.W.3d 178, 179 (Tex. 2003) (orig.
proceeding); see also TEX. R. CIV. P. 308 (trial court “shall cause its judgments and decrees to be
carried into execution”); TEX. GOV’T CODE ANN. § 21.001(a) (West 2004) (“A court has all
powers necessary for the exercise of its jurisdiction and the enforcement of its lawful orders
. . . .”). Indeed, the power to enforce judgments is inherent in every court with the authority to
render them, and functions as a vital assurance that judicial proceedings will achieve some
purpose in keeping with their aims. Arndt v. Farris, 633 S.W.2d 497, 499 (Tex. 1982). To that
end, “ʻ[a] trial court has the power to enforce its judgments even after its plenary power has
expired.’” Rapid Settlements, Ltd. v. Symetra Life Ins. Co., 234 S.W.3d 788, 795 (Tex. App.—
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Tyler 2007, no pet.) (quoting Wall St. Deli, Inc. v. Boston Old Colony Ins. Co., 110 S.W.3d 67,
69 (Tex. App.—Eastland 2003, no pet.)). Accordingly, the trial court here had the power to
punish the Roses for contempt, although it did not do so, and the authority to otherwise enforce
its original judgment by “suitable methods.” 1 Arndt, 633 S.W.2d at 499; TEX. GOV’T CODE ANN.
§ 21.002 (West 2004); TEX. R. CIV. P. 692 (disobedience of injunction may be punished by court
as a contempt); see also Ex parte Gorena, 595 S.W.2d 841, 843–44 (Tex. 1979) (power to
punish for contempt is inherent power of court and essential element of judicial independence
and authority). The trial court’s order enforces its original judgment permanently enjoining the
Roses from “erecting . . . any fencing . . . in excess of six (6) feet in height without the approval
of the [ACC] . . . pursuant to the deed restrictions.”
In their motion to enforce the judgment, the Bonvinos pleaded that the Roses erected
fencing in excess of six feet in height without the approval of the ACC. In the series of post-
judgment hearings, the Bonvinos offered evidence that the fence was in excess of six feet in
height, as measured from unimproved and unaltered grade, and had been erected without the
approval of the ACC. The trial court did not abuse its discretion by ordering that the fence
erected in violation of the judgment be removed. See Crow-Billingsley Air Park, Ltd., 98
S.W.3d at 179.
B. Modification of judgment
The Roses contend, however, that the trial court erred by ordering that they must obtain
permission of the ACC before erecting any fence, wall, or hedge, when the original injunction
required permission of the ACC only for a fence, wall, or hedge in excess of six feet in height.
The trial court’s ruling was based on its finding that “a fence in the location of the 2012 Fence
1
In the hearing on the Bonvinos’ motion for contempt, the trial court orally denied the motion because “I just didn’t get enough from you
guys to understand what’s going on,” and the hearing was adjourned with instructions that the parties measure the fence and reduce its height to
six feet. But the parties were unable to agree on the measurement and returned to the trial court for further hearings.
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constitutes a prohibited annoyance or nuisance,” supported by the evidence presented at the post-
judgment hearings regarding the ACC’s denial of the Roses’ request to approve the fence.
In keeping with its general power to enforce its judgment by suitable methods, a “[t]rial
court possess the inherent power to modify final injunctive orders to enforce a judgment or
accommodate changed conditions.” Schuring v. Fosters Mill Vill. Cmty. Ass’n, 396 S.W.3d 73,
75 (Tex. App.—Houston [14th Dist.] 2013, pet. denied); see also City of Seagoville v. Smith, 695
S.W.2d 288, 289 (Tex. App.—Dallas 1985, no writ) (as long as order concerns continuing
situation, trial court retains power to change, alter, or modify equitable relief it granted by
injunction upon showing of changed circumstances). In City of San Antonio v. Singleton, 858
S.W.2d 411, 412 (Tex. 1993) (per curiam), the supreme court explained:
A trial court generally retains jurisdiction to review, open, vacate or modify
a permanent injunction upon a showing of changed conditions. Smith v.
O’Neill, 813 S.W.2d 501, 502 (Tex. 1991). The authority to exercise that
jurisdiction, however, must be balanced against principles of res judicata.
See System Fed’n No. 91 v. Wright, 364 U.S. 642, 647–48, 81 S. Ct. 368,
371, 5 L. Ed. 2d 349 (1961). Whether right or wrong, an injunction “is not
subject to impeachment in its application to the conditions that existed at its
making.” United States v. Swift & Co., 286 U.S. 106, 119, 52 S. Ct. 460,
464, 76 L. Ed. 999 (1932).
In Singleton, because the allegedly “changed” conditions had existed at the time the injunction
was rendered, modification was not warranted, and the supreme court rendered judgment setting
aside the modified injunction. Id. And even if changed circumstances are established, a trial
court may in its discretion decline to modify an injunction, as was the case in Schuring. See
Schuring, 396 S.W.3d at 76.
As stated in Singleton, a trial court retains jurisdiction to modify or open an injunction.
Singleton, 858 S.W.2d at 412. The exercise of this jurisdiction includes the discretion to modify
an injunction to impose additional requirements on the party enjoined. See Smith, 695 S.W.2d at
289; see also United States v. United Shoe Machinery Corp., 391 U.S. 244, 251 (1968) (district
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court had both power and duty to modify injunction to impose additional restrictions on party
enjoined, upon proof that original injunction had not achieved adequate relief to which party
seeking modification was entitled under law). In view of finality and res judicata concerns, the
party seeking the modification must establish that the original purposes of the injunction are not
being fulfilled in a material respect that suggests modification is an appropriate method of
enforcing the original judgment. See Singleton, 858 S.W.2d at 412; Exxon Corp. v. Texas Motor
Exch. of Houston, Inc., 628 F.2d 500, 503 (5th Cir. 1980) (discussing standard of proof under
United Shoe). Here, the Bonvinos pleaded that the 2012 fence was built in violation of the
injunction and despite the original judgment. The Bonvinos also offered evidence that (1) the
Roses built a new fence; (2) the new fence exceeded six feet in height, contrary to the trial
court’s original injunction; (3) the ACC did not approve the new fence, as required by the
original injunction; and (4) the ACC determined that any fence in the location of both the
original fence and the 2012 fence was an “annoyance or nuisance” in violation of the applicable
deed restrictions because it caused a “significant burden to the Bonvinos” and provided “no
benefit that will inure to the Roses.” The Bonvinos established both that circumstances had
changed since the original injunction, and that the original purposes of the injunction were not
being fulfilled in a material respect. See Singleton, 858 S.W.2d at 412; Exxon Corp., 628 F.2d at
503. We reject the Roses’ argument that there is no pleading and evidence to support the trial
court’s order. 2
2
More specifically, in both their motion for contempt and their motion to enforce, the Bonvinos pleaded that the 2012 fence had been
erected in violation of the trial court’s permanent injunction. And in the post-judgment hearings, the trial court heard testimony from Nicholas
Bonvino that the fence was “[b]etween six-four to six-eight, depending on the slope.” In addition, the trial court ordered the parties to measure
the height of the fence, and the Bonvinos’ counsel reported back that “what we measured on the day” was “six-two to six-five,” although the
parties were still in disagreement about the grade from which they were to measure. Bonvino also testified that he had contacted the ACC to
inquire whether it had reviewed or approved a new fence on the Roses’ property. He received a response by e-mail, admitted into evidence, that
no such approval had been sought or given. The general counsel of the ACC testified that Rose did not seek permission to erect a fence until late
2013. The ACC considered the request; determined they had received no prior request from Rose; and determined not to grant Rose’s request for
the reasons set out in the ACC’s letter admitted into evidence.
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We conclude the trial court did not abuse its discretion in imposing the additional
requirement on the Roses that they must obtain the approval of the ACC for any fencing, wall, or
hedge, regardless of height. We overrule the Roses’ first issue.
2. Mootness
In their second issue, the Roses contend the trial court erred by granting the Bonvinos’
motion to enforce because the issue was moot. The Roses argue that the Bonvinos’ attorney
admitted in open court on November 14, 2013, that “the fence has been reduced to six feet in
height,” and therefore no issue remained to be determined. Citing Valley Baptist Medical Center
v. Gonzalez, 33 S.W.3d 821, 822 (Tex. 2000), the Roses contend that because there was no live
controversy between the parties at the time the trial court signed its order, the trial court lacked
jurisdiction to order the Roses to remove the second fence.
As the record reflects, however, the parties’ almost decade-long dispute over the Roses’
fence is anything but moot. 3 In the same hearing, for example, the Bonvinos’ attorney later
argued that Rose “changed the conditions in violation of the order” by “erect[ing] a fence in
excess of six feet.” And even though Rose testified he used boards less than six feet long to
construct the fence, the parties never agreed on the location of the “unaltered and unimproved
grade” from which the height of the fence was to be measured, and there was evidence that Rose
had altered the grade while constructing the fence. 4
3
Much of the argument at the November 14, 2013, hearing addressed the Bonvinos’ additional request, denied by the trial court, for
permission to enter the Roses’ property to build a retaining wall to prevent erosion on the Bonvinos’ property, and the attorney’s comment was
made in the context of those arguments. The Bonvinos alleged the erosion problem was caused by the removal of a “planter box” (according to
the Roses) or a “retaining wall” (according to the Bonvinos) removed when the new fence was erected in 2012. The trial court explicitly refused
to grant this relief, stating at more than one hearing that it believed that it lacked the authority to allow the Bonvinos to trespass on the Roses’
property.
4
The attorney’s statement, in any event, was not a formal declaration in open court that was sufficiently clear, deliberate, or unequivocal so
as to constitute a judicial admission. See Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 905 (Tex. 2000) (judicial admission must be “a
clear, deliberate, and unequivocal statement”); see also In re Bunzl USA, Inc., 155 S.W.3d 202, 207 n.3 (Tex. App.—El Paso 2004, orig.
proceeding) (judicial admission is “formal act, done in the course of judicial proceedings, which dispenses with the production of evidence and
takes the matter out of the domain of proof”).
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The Bonvinos never conceded that the 2012 fence was in conformity with the trial court’s
original judgment. There was at least some evidence that when measured from the “unaltered
and unimproved grade” as required by the trial court’s original judgment, the 2012 fence
exceeded six feet in height. The controversy was, therefore, not moot. We overrule the Roses’
second issue.
CONCLUSION
We affirm the trial court’s “Order Granting Motion to Enforce Final Judgment.”
/David J. Schenck/
DAVID J. SCHENCK
JUSTICE
140702F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
H. ROBERT ROSE AND GAYNELL On Appeal from the 199th Judicial District
ROSE, Appellants Court, Collin County, Texas
Trial Court Cause No. 199-2450-06.
No. 05-14-00702-CV V. Opinion delivered by Justice Schenck,
Justices Bridges and Lang participating.
NICHOLAS AND DORIS BONVINO,
Appellees
In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
It is ORDERED that appellees Nicholas and Doris Bonvino recover their costs of this
appeal and the full amount of the trial court’s judgment from appellants H. Robert Rose and
Gaynell Rose and from the cash deposit in lieu of cost bond. After all costs have been paid, the
clerk of the Collin County District Court is directed to release the balance, if any, of the cash
deposit to H. R. Rose.
Judgment entered this 11th day of August, 2015.
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