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Vance v. Popkowski

Court of Appeals of Texas, First District

May 25, 2017


         On Appeal from the 334th District Court Harris County, Texas Trial Court Case No. 2014-70417

          Panel consists of Justices Massengale, Brown, and Huddle.



         This appeal arises from a dispute over the enforcement of deed restrictions. The purchasers of deed-restricted property in a residential subdivision began operating a business from a single-family residence located on the property. Appellants Benny Vance and Pierre Metzener, who also own property in the subdivision, claimed that the operation of the business violated the deed restrictions. Vance and Metzener brought suit seeking a permanent injunction prohibiting operation of the business. The appellees admitted that they were operating a business but asserted as an affirmative defense that the deed restrictions had been abandoned.

         A jury found that the restrictions had been abandoned, and the trial court rendered judgment in favor of the appellees. On appeal, Vance and Metzener argue that the appellees waived their affirmative defense of abandonment by failing to request or obtain a jury finding regarding whether a nonwaiver provision contained in the deed restrictions had been waived. Vance and Metzener also contend that the evidence in support of the appellees' abandonment defense was both legally and factually insufficient to support the trial court's judgment.

         Because the jury verdict was insufficient to support a finding of abandonment of particular deed restrictions absent findings regarding the nonwaiver provision, we reverse the judgment of the trial court. Further, because the appellees admitted that the operation of the business would violate the deed restrictions, if enforceable, we remand for entry of an injunction and for further proceedings as may be necessary to resolve claims to recover attorney's fees.


         Cypress Point Estates is a deed-restricted subdivision in Harris County, Texas. Cypress Point Estates does not have a homeowner's association, but the deed restrictions provide for enforcement "by any person owning any interest in any tract" in the subdivision as an "owner, mortgagee, seller or purchaser under a Contract of Sale."

         Four siblings, Mark C. Popkowski, Jody M. Popkowski, Tammy Evans, and Stephen Popkowski, bought a lot with a house on McCearley Drive in Cypress Point Estates, subject to the subdivision's deed restrictions, the 1980 "Modification of Restrictions of Cypress Point Estates Subdivision, An Unrecorded Addition in Harris County, Texas." At the time the siblings purchased the lot, Mark Popkowski co-owned, directed, and managed Modern System Concepts, Inc., which operated out of a commercial strip center in Katy, Texas. After the purchase of the lot, Modern System and its 18 to 20 employees began operating out of the house located in Cypress Point Estates.

         A few months after Modern System moved to Cypress Point Estates, Benny Vance and Pierre Metzener, two homeowners in the subdivision, brought suit against the four siblings and Modern System. Vance and Metzener argued that the operation of Modern System from the residential property violated deed restrictions. Among the numbered deed restrictions, Vance and Metzener contended that Restriction Nos. 1 and 15 were being violated. Restriction No. 1 stated that the "tracts" within the subdivision "shall be used only for single family residences." Restriction No. 15 stated that "no business, commercial or otherwise, shall be conducted in, on or from any tract, " within the subdivision. In addition, the restrictions contained a nonwaiver provision which provided:

No act or omission by any party hereto or any person hereafter acquiring any interest in any tract in said subdivision through or under same shall ever be constructed a waiver of the right to enforce any of these covenants, either against such person or against any other person.

         Vance and Metzener sought an injunction prohibiting the operation of the business within the subdivision. In response, the defendants entered a general denial and asserted various affirmative defenses, including abandonment and waiver.

         At a trial before a jury, Vance and Metzener testified that they owned property in Cypress Point Estates and that they purchased their property in reliance on the deed restrictions. Vance and Metzener also testified about the specific deed restrictions at issue, prior enforcement of the restrictions, and their desire to enforce the restrictions to stop businesses from operating within their residential subdivision.

         Mark Popkowski also testified. He admitted that Modern System was operating out of the residential property, but he said that it was not the only business operating in the subdivision. He then described ...

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