Court of Appeals of Texas, Second District, Fort Worth
COUNTY COURT AT LAW NO. 3 OF TARRANT COUNTY TRIAL COURT NO.
SUDDERTH, C.J.; GABRIEL and PITTMAN, JJ.
Frank and Karen Reed appeal from the trial court's order
granting summary judgment in favor of appellee Lake Country
Property Owners Association, Inc. (LCPOA), permanently
enjoining the Reeds from parking or storing a recreational
camper on their property. As is common in summary- judgment
appeals, the established standard of review dictates our
conclusion. Accordingly, because the Reeds do not argue that
LCPOA failed to conclusively establish each essential element
of its claim and because the Reeds wholly failed to raise an
issue of fact on each element of their pleaded affirmative
defenses through competent summary-judgment evidence, we
affirm the trial court's summary judgment.
not the first time we have considered the fractious
relationship between the Reeds and their homeowners'
association-LCPOA. Previously, LCPOA sought to enforce deed
restrictions, which (1) were restrictive covenants running
with the properties in Lake Country Estates and (2)
prohibited property owners from parking "trailer[s],
house car[s] or other moveable structure[s]" on
"any lot" and from storing "boats, boat
trailers or recreational campers . . . on the premises"
in plain view of the streets fronting their residences.
Reed v. Lake Country Prop. Owners Assoc., Inc., No.
02-14-00282-CV, 2016 WL 3655589, at *1 (Tex. App.-Fort Worth
July 7, 2016, no pet.) (mem. op.) (Reed I); see
also Tex. Prop. Code Ann. § 202.001(4) (West 2014)
(defining restrictive covenant). In response to LCPOA's
efforts, the Reeds and other property owners in Lake Country
Estates filed suit against LCPOA, seeking a declaration that
LCPOA either was not authorized to enforce or was estopped
from enforcing the restrictive covenants. See Burkett v.
Lake Country Prop. Owners Ass'n, Inc., No.
02-13-00090-CV, 2014 WL 1510137, at *1 (Tex. App.-Fort Worth
Apr. 17, 2014, no pet.) (mem. op.). The trial court granted
summary judgment in favor of LCPOA, which we affirmed.
August 13, 2013, before we issued Burkett, LCPOA
filed suit against the Reeds to enforce the restrictive
covenant, seeking to permanently enjoin them from parking an
enclosed utility trailer on their property and from storing a
Sandpiper camper in view of the street fronting their home.
Reed I, 2016 WL 3655589, at *2. In June of 2014
shortly after we issued our Burkett opinion, the
Reeds stopped parking the Sandpiper camper on their property.
LCPOA sought summary judgment on their claims, which the
trial court granted on August 7, 2014, and enjoined the Reeds
from violating the deed restriction regarding parking or
storing trailers or campers. Id. On October 7, 2014,
the Reeds began to park a Cedar Crest recreational camper on
their property in view of the street. On July 7, 2016, we
affirmed the summary judgment and permanent injunction
regarding the trailer but we reversed regarding the Sandpiper
camper because the Reeds had raised a fact issue on their
pleaded affirmative defense of limitations in response to
LCPOA's summary-judgment motion. Id. at *8.
Specifically, we held that limitations as to the Sandpiper
camper began to run no later than January 5, 2005; thus, the
four-year limitations period to enforce the restrictive
covenant expired January 5, 2009, rendering LCPOA's
August 13, 2013 petition arguably time-barred absent tolling.
Id. at *5, *8.
December 12, 2016, after we issued mandate in Reed I
and remanded LCPOA's petition to the trial court, LCPOA
amended its petition to allege that the Reeds violated the
restrictive covenant by storing a recreational camper in view
of the street "since October 2014." LCPOA then
filed a second motion for summary judgment, arguing that it
conclusively established its claim for enforcement based on
the Reeds' failure to comply with the restrictive
covenants. In support, LCPOA relied on (1) the Reeds'
warranty deed under which they acquired the property; (2) the
Lake Country restrictive covenants that were filed in Tarrant
County and were incorporated into the warranty deed; (3)
Frank's deposition admissions that he and Karen violated
the restrictive covenants by parking a recreational camper on
their property; and (4) the affidavit of an LCPOA board
member who stated that the Reeds stored their Cedar Crest
camper in view of the street beginning on October 7, 2014,
and attached an October 7, 2014 photograph of the Reeds'
Cedar Crest camper parked on the Reeds' property in view
of the street as well as several date-stamped photographs of
the Reeds' property between June 9 and October 7, 2014,
showing no parked camper. In their summary-judgment motion,
LCPOA also addressed the Reeds' previously asserted
limitations defense, which resulted in this court reversing
the summary judgment regarding the Sandpiper camper in
Reed I, and argued that the absence of the Sandpiper
camper between June 2014 and October 2014 and the Reeds'
parking of the new Cedar Crest camper in view of the street
beginning in October 2014 resulted in limitations starting
anew in October 2014.
Reeds did not respond to LCPOA's second motion for
summary judgment and did not appear at the summary-judgment
hearing. On January 13, 2017, the trial court granted
LCPOA's second motion for summary judgment and
permanently enjoined the Reeds from parking "a trailer,
house car or other moveable structure" and from storing
"a boat, boat trailer or recreational camper"
within view of the street fronting the Reeds' house. The
trial court also awarded LCPOA its attorney's fees. The
Reeds filed a motion for new trial, arguing that LCPOA failed
to conclusively prove that its enforcement of the restrictive
covenants was not barred by laches. The motion was overruled
by operation of law. See Tex. R. Civ. P. 329b(c).
Reeds again appeal and argue that the trial court's
summary judgment was in error because (1) LCPOA did not
address laches in their second motion, (2) the Cedar Crest
camper did not restart the limitations period because the
Reeds had been engaged in litigation over the storage of a
camper, and (3) a material fact issue existed as to laches
and whether LCPOA's delay was reasonable after Frank
began building improvements in an attempt to comply with the
restrictive covenants. They also argue that the award of
attorney's fees was erroneous because LCPOA was not
entitled to such an award based on its delay in seeking to
enforce the restrictive covenants and because there was a
fact issue regarding reasonableness.
PROPRIETY OF SUMMARY JUDGMENT
Standard of Review
a permanent injunction normally is reviewed for an abuse of
discretion, we apply the summary-judgment standard of review
because the injunction was issued as the result of a
summary-judgment motion. See Jim Rutherford Invs., Inc.
v. Terramar Beach Cmty. Ass'n, 25 S.W.3d 845, 848
(Tex. App.-Houston [14th Dist.] 2000, pet. denied). In our de
novo review of the summary judgment, we consider the evidence
in the light most favorable to the Reeds, indulge every
reasonable inference in their favor, and resolve any doubts
in their favor. See Samson Expl., LLC v. T.S. Reed
Props., Inc., 521 S.W.3d 766, 774 (Tex. 2017);
Provident Life & Accident Ins. Co. v. Knott, 128
S.W.3d 211, 215-16 (Tex. 2003). LCPOA was entitled to summary
judgment on its cause of action if it conclusively
established all essential elements of its claim as a matter
of law. See Tex. R. Civ. P. 166a(a), (c); City
of Hous. v. Clear Creek Basin Auth., 589 S.W.2d 671, 678
(Tex. 1979); Nichols v. Smith, 507 S.W.2d 518, 520
(Tex. 1974). If LCPOA did so, it will not be prevented from
obtaining summary judgment merely because the Reeds pleaded
an affirmative defense. See Kirby Expl. Co. v. Mitchell
Energy Corp., 701 S.W.2d 922, 926 (Tex. App.- Houston
[1st Dist.] 1985, writ ref'd n.r.e.); Clark v.
Dedina, 658 S.W.2d 293, 296 (Tex. App.-Houston [1st
Dist.] 1983, writ dism'd). An affirmative defense
prevents the granting of summary judgment in favor of LCPOA
only if the Reeds raised an issue of fact on each element of
their defense through competent summary-judgment evidence.
See Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex.
1984); 'Moore' Burger, Inc. v. Phillips Petroleum
Co., 492 S.W.2d 934, 936-37 (Tex. 1972); Songer v.
Archer, 23 S.W.3d 139, 142 (Tex. App.- Texarkana 2000,