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Oyoque v. Henning

Court of Appeals of Texas, Ninth District, Beaumont

March 29, 2018

JOSE OYOQUE, Appellant
v.
GARRETT HENNING, Appellee

          Submitted on July 11, 2017

          On Appeal from the 284th District Court Montgomery County, Texas Trial Cause No. 14-05-04855-CV

          Before Kreger, Horton, and Johnson, JJ.

          MEMORANDUM OPINION

          CHARLES KREGER Justice .

         On May 1, 2014, Garrett Henning sued Jose Oyoque's brother, Roberto Eulloque, for an alleged violation of a setback provision contained in the deed restrictions for the Lake Chateau Woods subdivision in Montgomery County, Texas. Oyoque substituted into the lawsuit as a party on September 14, 2016, following the death of his brother. On June 23, 2016, Henning filed his first amended original petition seeking to enforce the restrictive covenants, declaratory relief, a permanent mandatory injunction, monetary relief, and attorney's fees. The jury found in favor of Henning on the issue of encroachment, but also found Henning was not entitled to a permanent injunction, monetary damages, or attorney's fees.

         Jose Oyoque appeals the trial court's judgment. Oyoque argues in five issues on appeal that (1) the trial court erred by denying Oyoque's plea to the jurisdiction and motion to dismiss for lack of jurisdiction, (2) the trial court erred by striking Oyoque's experts, (3) the trial court erred by denying Oyoque's motion to exclude Henning's witnesses and limit trial testimony, (4) the trial court erred by denying Oyoque's motion to disregard jury findings, and (5) the trial court erred by denying Oyoque's motion for judgment notwithstanding the verdict.

         I. Background

         The property at issue is located on Glen Oaks Drive in the Lake Chateau Woods subdivision in Montgomery County, Texas. The original subdivision survey of the plat was conducted by Glezman Survey. Henning owns lot 15C, and Oyoque owns lot 13C.[1] Texas State Land Associates, Inc. filed the original deed restrictions in 1967. The 1967 deed restrictions provided "[n]o improvements shall be erected or constructed on any lot or tract in said Lake Chateau Woods subdivision nearer than . . . 5 feet to the side property lines. . . ." On April 23, 1994, a Petition to Create Restrictions was filed in Montgomery County for the "purpose of creation of restrictive covenants[.]" The 1994 restrictive covenants contained a similar provision which provides "[n]o building, structure or improvement shall be erected on any lot within . . . five feet of the side property line[.]" A municipal utility district (MUD) was granted an easement between the two properties, as allowed by the restrictive covenants burdening the lots at issue.

         In preparation to begin construction of a home on lot 13C, Oyoque's brother retained Cassurvey to conduct a survey in late 2012, which showed the slab would be situated five feet from the property line, in compliance with the set back lines. Once the slab was poured, Henning complained that it encroached on the five foot setback line. Accordingly, Eulloque asked Cassurvey to conduct a second survey, and they determined the slab met the set back restriction of five feet from the property line. In May 2014, Henning filed suit against Eulloque alleging the construction of the slab violated the deed restrictions. In January 2015, Henning filed a motion to appoint a neutral surveyor. In July 2015, the trial court appointed Survtech Surveying as a neutral surveyor to survey Eulloque's lot and provide a report to the court. Steve Laughlin, an employee of Survtech, testified during the trial. Survtech's survey conflicted with the surveys completed by Oyoque's first surveyor, Cassurvey. Henning asserted that Cassurvey was not legally qualified to render expert opinions and further disputed the accuracy of Cassurvey's survey. Oyoque also retained Barry Adkins of DaRam Engineers, Inc. to conduct another survey in July 2016. Oyoque represented to the trial court that he hired Adkins of DaRam to complete another survey, because of the conflicts in the prior surveys.

         Prior to trial, Henning filed a motion to strike Oyoque's experts, which included surveyors Silvio Prieto, owner of Cassurvey, and Barry Adkins of DaRam Engineers, Inc., asserting, among other things, their designations were untimely pursuant to the trial court's discovery control order.[2] The trial court granted Henning's motion, and neither witness was allowed to testify. The trial court also struck one of Henning's experts prior to trial.[3] The only surveyor the trial court allowed to testify at trial was Steve Laughlin of Survtech, its court-appointed surveyor.

         Adkins testified in an offer of proof at trial and indicated DaRam actually conducted two surveys in 2016, one in July and one in September. Adkins concluded the slab was five feet from the boundary line. In September, a neighbor called Adkins's office and claimed the monuments had been moved. At that point, Adkins went back out to the Oyoque property to see if the monuments had been moved, and determined that they had not been moved. Adkins recognized that Survtech's survey showed the slab violated the deed restrictions, he found his two surveys showed it did not. Further, Adkins was critical of the method Survtech used in conducting its survey, and he identified errors that affected the accuracy of Survtech's survey.

         In his first amended original petition, Henning sought to enforce the restrictive covenants, and requested declaratory relief, a permanent injunction, monetary relief, and attorney's fees. On September 5, 2016, Oyoque filed his plea to the jurisdiction, asserting Henning did not have standing to enforce the deed restrictions because they were not intended to benefit him, an argument that the trial court denied.

         At the conclusion of the trial, in answer to the jury charge submitted, the jury found (1) "the slab of Oyoque's home encroache[d] on the five foot set back line of his own property[;]" (2) "Oyoque [laid] the slab of his home with a good faith belief that the slab was not encroaching on the set back line on his property[;]" (3) "the encroachment, if any, [was] slight[;]" (4) "the cost of removing the encroachment, if any, [was] great[;]" (5) "the encroachment, if any, [had] not diminished the economic value of [Henning's] property[;]" (6) Henning established that "[Eulloque] or [Oyoque] breached [a] covenant owed to Henning as a neighbor by pouring the slab to Eulloque's house from six to eight inches into the [MUD's] easement on Eulloque's property[;]" (7) Henning did not "establish that, as a neighbor, he [was] the proper person to enforce the [MUD's] easement rights[;]" (8) "[Henning] should [not] be permitted to enforce the breach . . . by requiring [Oyoque] to tear down or move his house[;]" (9) Oyoque should not be required to pay Henning for his attorney's fees in bringing the suit; and (10) Henning should not be required to pay Oyoque's attorney's fees. The trial court's judgment states,

that on the claim of Breach of Restrictive Covenant, the Jury finds in favor of Plaintiff GARRETT HENNING and against Defendant JOSE OYOQUE; however, the Jury further finds that the encroachment of eight-tenths of a foot is slight and not substantial enough to require this Court to issue an injunction. Therefore, Plaintiff's request for injunctive relief is DENIED. It is, further,

ORDERED that each ...


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