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Bolleter v. Grand Lake Estates Property Owners' Association, Inc.

Court of Appeals of Texas, Ninth District, Beaumont

June 13, 2019

MARK A. BOLLETER, EHREN C. BOLLETER, SWEN ERIC SPJUT, GWENDOLYN JULIA SPJUT, JUSTIN DANCER AND JENIFER A. DANCER, Appellants
v.
GRAND LAKE ESTATES PROPERTY OWNERS' ASSOCIATION, INC., Appellee

          Submitted on October 16, 2018

          On Appeal from the 284th District Court Montgomery County, Texas Trial Cause No. 16-10-12136-CV

          Before McKeithen, C.J., Kreger and Horton, JJ.

          MEMORANDUM OPINION

          HOLLIS HORTON JUSTICE

         In three appellate issues, Mark A. Bolleter, Ehren C. Bolleter, Swen Eric Spjut, Gwendolyn Julia Spjut, Justin Dancer, and Jenifer A. Dancer (collectively, the Homeowners) ask the Court to reverse the trial court's ruling granting the motion for summary judgment filed by Grand Lake Estates Property Owners' Association, Inc. (the POA) on their claims for trespass, conversion of their property, and for injunctive relief. In issue one, the Homeowners argue the covenants in their deeds did not authorize the POA to deepen and widen the drainage by digging ditches in the easements that exist on their lots. In issue two, they contend their response to the POA's motion raises issues of material fact on whether the POA could enforce the covenants, given their claim that the POA acted arbitrarily or capriciously when it decided to construct drainage ditches across and behind their lots. In their third issue, the Homeowners assert the trial court erred by concluding that a disclaimer of liability provision in the covenants, which applies to damages to fences, shrubbery, trees, lawns, or to any other property, allowed the POA to avoid the Homeowners' claims under the circumstances that were at issue in the suit.

         We conclude the trial court was authorized to reject the Homeowners' argument that the covenants did not authorize the POA, through its contractor, to enter the Homeowners' respective lots to construct improvements that were designed to improve drainage in Grand Lake Estates. Thus, we hold the summary-judgment evidence authorized the trial court to grant the POA's motion for summary judgment. We further conclude the Homeowners waived their right to raise the arguments they make to support their second issue. Finally, given our resolution of the Homeowners' first issue, we need not reach the Homeowners' third issue, which suggests the limitation of liability provision found in the covenants that favor the POA do not apply to the damages the Homeowners sought to recover in their suit. For the reasons explained fully in the following opinion, the trial court's judgment is affirmed.

         Background

         The Homeowners own lots located on the south side of Connie Lane in section six in a Montgomery County community known as Grand Lake Estates. In their pleadings, the Homeowners alleged the plat for their lots, which is on file in Montgomery County's property records for their subdivision, shows that a 30-foot-wide drainage easement exists between lot 11, which is owned by the Spjuts, and lot 10, which is owned by the Bolleters. The plat also shows that a 30-foot-wide utility easement exists at the back of the four lots owned by the Homeowners, and the four lots are all located on the south side of Connie Lane.[1] To address drainage problems in the subdivision, the POA hired a construction company to enlarge the existing drainage in the drainage easement between lots 10 and 11 and to enlarge an existing swale, located in the utility easement running behind the lots on the south side of Connie Lane. The construction company dug ditches in the easements, and the Homeowners then sued the Association for trespass, conversion, and asked the trial court to grant a mandatory injunction to require the POA to return the Homeowners' lots to the condition they were in before the contractor worked in the easements on the Homeowners' lots.[2]

         In October 2017, the POA filed a motion for summary judgment. In it, the POA argued the covenants that burdened the Homeowners' lots allowed it to enter the easements to dig the ditches at issue for the purpose of improving drainage without the Homeowners' consent.[3] The POA's motion states that under a written agreement between the POA and the developer signed in 2008, the developer transferred its rights to the POA to use the easements in the subdivision for the purpose of improving drainage.[4] According to the POA's motion, the covenants include a hold-harmless provision, which prevents the Homeowners from holding it liable for the work completed by the construction company it hired to perform the work in the easements burdening the Homeowners' lots.[5]

         In their response to the POA's motion, the Homeowners argued that construction in the drainage and utility easements is not authorized under the covenants that burden their lots. According to the Homeowners, the covenants allowed the POA to repair or maintain the existing drainage the developer installed in the subdivision but did not allow the POA to install more drainage. The response states that while the POA had the right to build swales or detention ponds in the utility easements, that right did not allow it to construct an eight-foot-deep ditch. As to the hold-harmless provision, the Homeowners argued it did not apply to an unauthorized entry.

         After the trial court considered the POA's motion by submission, it granted the POA's motion and rendered judgment that the Homeowners take nothing in the claims they filed against the POA.

         Standard of Review

         Appellate courts review a trial court's rulings on a traditional motion for summary judgment under a de novo standard.[6] Under that standard, the summary-judgment record is reviewed "in the light most favorable to the nonmovant, indulging every reasonable inference and resolving any doubts against the motion."[7]If the party moving for summary judgment proves that it is entitled to judgment as a matter of law, the burden then shifts to the party opposing the motion to produce evidence sufficient to raise a genuine issue of material fact on the claims the moving party has challenged in its motion.[8] We decide whether a genuine issue of material fact exists by examining the summary-judgment evidence to determine whether reasonable and fair-minded jurors could differ in the conclusions they could reach from the evidence the trial court considered when deciding the motion.[9]Nevertheless, "[i]ssues not expressly presented to the trial court by written motion, answer or other response [in a summary-judgment proceeding] shall not be considered on appeal as grounds for reversal."[10]

         Unambiguous covenants found in deeds are treated like the terms of a contract.[11] In construing written contracts, the court must examine the contract and consider all of it to harmonize and give effect to all the contract's provisions so that none are rendered meaningless.[12] We look to the objective intent of the party that drafted the deed to give the deed's covenants their intended effect.[13] We look to the terms in the deed as a whole and in light of the circumstances that existed when the deed was signed to give the words the meaning they commonly held when the deed was signed unless the terms are specifically defined.[14] Covenants in deeds cannot "'be enlarged, extended, stretched or changed by construction.'"[15] And we must avoid "any 'construction that nullifies a restrictive covenant provision.'"[16]

         Courts, not juries, are tasked with deciding whether a covenant is ambiguous.[17] Covenants are ambiguous if they "'are susceptible to more than one reasonable interpretation[.]'"[18] That said, "'covenants are unambiguous as a matter of law if [they] can be given a definite or certain legal meaning.'"[19] Thus, a "'[m]ere disagreement over the interpretation of a restrictive covenant does not render it ambiguous.'"[20]

         The Covenants In the motion for summary judgment and response, the parties relied on covenants in the Homeowners' lots to support their respective arguments over whether the POA had the right to dig ditches in the easements on the lots at issue. The motion for summary judgment and response that was before the trial court when it ruled relied on the following covenants:

DEFINITIONS . . .
Section 1.06. "Commons Area" shall mean all real property (including the improvements thereto) within the subdivision owned by the Developer and/or the Association for the common use and enjoyment of the owners and/or any real property and improvements, including, but not limited to, drainage and utility easements and other facilities and areas designated on the ...

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