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Forest Hills Improvement Association, Inc. v. Flaim

Court of Appeals of Texas, Ninth District, Beaumont

November 9, 2017

FOREST HILLS IMPROVEMENT ASSOCIATION, INC., Appellant
v.
RICHARD FLAIM, ET UX, Appellees

          Submitted on June 7, 2017

         On Appeal from the 1A District Court Jasper County, Texas Trial Cause No. 33266.

          Before Kreger, Horton, and Johnson, JJ.

          MEMORANDUM OPINION

          CHARLES KREGER Justice

         Appellant, Forest Hills Improvement Association, Inc. (the "Association"), appeals the trial court's denial of its petition for declaratory judgment against the Appellees (the "Flaims"). We vacate and remand to the trial court.

         I. Factual and Procedural Background

         The Association is a corporation of property owners in the Forest Hills Subdivision, Sections Two and Three, of Jasper County, Texas (the "subdivision"), organized under the deed restrictions governing the subdivision. The Flaims are property owners in the subdivision.

         In September of 1997, a majority of the owners of the lots in the subdivision voted on and approved the deed restrictions, which were then filed and recorded in the Deed Records of the County Clerk of Jasper County, Texas. The deed restrictions require the Improvements Committee-defined in the restrictions as the Board of Directors of the Association-to pre-approve all new construction: "No lot shall be used for other than single family residential purposes. Single family homes shall be permitted on any lot, provided that site planning and architectural design are approved in advance of construction by the Improvement Committee and that setbacks and easements are observed." The restrictions further specify the process for making improvements to property located within the subdivision by granting the Improvement Committee the power to:

[a]pprove or reject all plans and specifications for improvements to be constructed in said Subdivision. All plans and specifications for improvements must be submitted to the Committee for approval prior to the commencement of construction of any improvement. If the Committee fails to act within thirty (30) days after submission of plans and specifications, construction in accordance with these restrictions may begin.

         The restrictions also include explicit setback requirements, including that "no building shall be located . . . nearer than ten (10) feet to the rear lot line . . . ." The restrictions go on to provide that "the Improvement Committee may grant variances from compliance with the setback requirements . . . ." The restrictions do not further describe or mention "variances."

         In 1997, the Flaims built a home on their property within the subdivision, and in 2001, the Flaims obtained approval from the Association to pour a concrete slab on their property, located about two feet from the rear lot line, to serve as a place to park their boat.

         Some years after the concrete slab was poured, the Flaims sought permission from the Association to construct a carport over the slab. The Flaims first approached Eddie Bass-a general contractor as well as a member of the Association's board of directors-about constructing the carport on their property. Mr. Bass informed the Flaims that they could not build their desired carport because it would violate the setback restrictions.

         Subsequently, the Flaims submitted a series of four written requests to the Association dated: (i) August 20, 2011; (ii) April 28, 2012; (iii) February 20, 2013; and (iv) May 12, 2013. The Association concedes that it did not respond in writing to the Flaims' requests until May 28, 2013, when its attorney sent the Flaims written notice that the Association denied their request, but argues that it did verbally deny each of the Flaims requests. The Flaims admit that they received verbal denials from the Association to some, but not all, of their letters, and they argue that they did not receive the May 28th letter.

         In June of 2013, the Flaims built their carport. In July of 2013, the Association filed suit against the Flaims seeking declaratory judgment that the Flaims violated the setback requirement of the deed restrictions and asking the trial court to order the Flaims to remove their carport and grant a permanent injunction enjoining the Flaims from constructing any future structures in violation of the deed without a variance. Additionally, the Association requested that the trial court award it reasonable and necessary attorney's fees incurred in the matter.

         Following a bench trial, the trial court denied the Association's petition for declaratory judgment. The trial court later filed findings of fact ...


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