Court of Appeals of Texas, Ninth District, Beaumont
Submitted on June 7, 2017
Appeal from the 1A District Court Jasper County, Texas Trial
Cause No. 33266.
Kreger, Horton, and Johnson, JJ.
CHARLES KREGER Justice
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.
Factual and Procedural Background
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.
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.
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."
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.
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
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.
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.
a bench trial, the trial court denied the Association's
petition for declaratory judgment. The trial court later
filed findings of fact ...