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Clark v. Litchenburg

Court of Appeals of Texas, Fifth District, Dallas

August 26, 2019


          On Appeal from the 199th Judicial District Court Collin County, Texas Trial Court Cause No. 199-00983-2016

          Before Justices Bridges, Brown, and Nowell



         This appeal involves a dispute between the owners of three homes in a gated community comprised solely of those three residences. A jury heard appellants' claims for trespass and promissory estoppel and returned a verdict in their favor. The trial court later held a bench trial on the parties' remaining claims. In three issues, appellants challenge that portion of the court's final order that enforces restrictive covenants in favor of appellees. Their primary complaint is that the trial court erred by denying their request for a jury trial on all claims. They also assert the court's final order is "legally and factually deficient" for various reasons. We affirm.


         The three properties are located in Fairview, Texas. They have a common, gated driveway off of Stacy Road. Appellee Paul Simon owns the property closest to the entrance, 831 Stacy, and his mother-in-law Larry Jean Linden lives there. Appellants Frank Ronald Clark and Jacqueline D. Martin own 833 Stacy, the middle property, and appellees Alfred and Kelli Litchenburg own 835 Stacy, which is the farthest from Stacy Road. The Litchenburgs have to pass both the Simon/Linden property and the Clark/Martin property on the common driveway to get to their house.

         The three lots were initially one 7.65 acre tract owned by a builder. In early 1995, that owner established restrictive covenants, binding on all future owners, to "enhance and protect the lifestyle, the atmosphere, and investment appreciation for all those who will invest in the addition." The covenants provided for certain common areas-the private driveway that serves as access to the lots, the landscaping and irrigation between the "Stacy Rd. wall and curb," and the entry area landscaping berm, irrigation, walls, lights, and security gate. The covenants also established an Architectural Control Committee (ACC) and require written approval from the ACC for "any and all construction and improvements made to the property." In addition, covenant 4(B) specifically requires ACC approval for all buildings, fences, wall, terraces or other structures, and covenant 5(F) provides, "In all cases, fences must have specific approval from the ACC prior to construction."

         Section 15 of the restrictive covenants is titled "Homeowner Association." Under that section, the ACC retained power until the last lot in the addition was sold. Upon the sale of the last lot, the ACC's duties automatically transferred to the purchasers and the ACC was to "be designated the Homeowners' Association." The Homeowners' Association (HOA) is empowered with the same duties and obligations as the ACC. Section 15 also requires the homeowners to make specific monetary contributions for beautification and maintenance of the front entry and common grounds.

         In addition, section 17 authorizes recovery of attorney's fees in an action to enforce the restrictive covenants:

If the owner, ACC, purchaser(s)/homeowner(s), or the Association hereinafter established, attempts to enforce any violation of these restrictive covenants by way of a legal action or any other type of enforcement procedure, then the purchaser/homeowner found in violation of any of these restrictive covenants shall pay to the party or parties enforcing these covenants all necessary and reasonable attorney's fees.

         Simon purchased 831 Stacy in 2001, Clark and Martin purchased 833 Stacy in 2002, and the Litchenburgs purchased 835 Stacy in 2011. It is undisputed that the covenants were specifically referenced in the parties' deeds.

         In March 2016, appellees-the Litchenburgs and Simon and Linden-sued Clark and Martin, owners of the property in between them. Their petition was titled "Plaintiffs' Original Petition for Tortious Interference with Use of Real Property." Appellees alleged Clark and Martin had interfered with their use of property in several ways. The most significant allegation was that Clark and Martin had attempted to put up a fence and gate across the access easement that provided the only access to the Litchenburgs' property. Appellees alleged that installation of any gate or fence on the property was in violation of the restrictive covenants. They sought damages from Clark and Martin for their tortious interference. In addition, they sought a temporary restraining order as well as a permanent injunction prohibiting Clark and Martin from installing any gates, fences, or any other structure that would be in violation of the restrictive covenants.

         Simon also alleged that when he purchased 831 Stacy, some of the septic system pipes were on the 833 Stacy property. He sought an easement along the property line shared with Clark and Martin for use of a septic line, as well as adjacent trees and landscaping. Alternatively, he sought title to that portion of the land through adverse possession.

         Clark and Martin answered with a general denial and several affirmative defenses, including waiver and ratification. They also asserted four counterclaims. First, they brought an action for quiet title in which they asserted Simon had alleged ownership in their property and had not acquired any right to possession. Second, they sought a declaratory judgment that: (1) the restrictive covenants were void and unenforceable; (2) they have a right to place a gate on their property across the "access easement such that the Litchenburgs will have ingress/egress access through the gate but no right to keep the gate open for longer than two consecutive minutes except in cases of emergency or with [Clark and Martin's] written permission"; and (3) Simon wrongly kept all proceeds paid as a result of a government taking on Stacy Road. Third, they pleaded a claim for promissory estoppel in which they alleged Simon and Linden owed them for expenses related to maintenance of the entry area and gate. Finally, Clark and Martin alleged the Litchenburgs had trespassed on their property by placing their trash can out for pick up on it.

         On May 31, 2016, appellees filed a separate application for temporary restraining order, temporary injunction, and permanent injunction. They alleged that despite their lawsuit, on May 28, Clark and Martin had begun installing a fence and gate between their property and the Litchenburgs'. Appellees attached pictures of the work being done. Appellees alleged the nature of their lawsuit was to enforce restrictive covenants and enjoin Clark and Martin from installing a fence and gate. The trial court granted a temporary restraining order prohibiting Clark and Martin from installing a gate and later a temporary injunction prohibiting them from violating any restrictive covenants, including erecting any gate or fence.

         A "1st Amended Plaintiffs' Original Petition for Tortious Interference with Use of Real Property" was filed on September 1, 2016. Simon and Linden were no longer named as plaintiffs, only the Litchenburgs were. Thus, there was no longer any claim by Simon for an easement or adverse possession. The Litchenburgs' claim for tortious interference was based only on Clark and Martin's attempt to put a fence and gate across the right of way to access their property. They also reiterated their request for a permanent injunction prohibiting Clark and Martin "from installing any gates, fences or any other structure on any of the property that would be in violation of the restrictive covenants."

         The case was eventually set for a January 20, 2017 jury trial. In December 2016, Clark and Martin requested a jury trial and paid the jury fee. On the day of trial, the Litchenburgs filed a motion in limine asking the trial court to instruct Clark and Martin not to mention the restrictive covenants to the jury. They argued the validity of the restrictive covenants was for the court to decide as a matter of law. Clark and Martin responded there were fact issues related to the restrictive covenants for the jury to decide, namely on the issue of waiver. They argued appellees had waived the right to enforce the restrictive covenants because they had acquiesced to other violations in the neighborhood. When the judge asked if there were any other fact issues, Clark and Martin mentioned the reasonableness of the proposed violation, the elements of tortious interference, and the issue of quiet title. Appellees told the judge they were not seeking economic damages, only the enforcement of the restrictive covenants. Their position was that there were no fact questions for the jury regarding their enforcement. They argued Clark and Martin's quiet title claim went away when they nonsuited a cause of action, apparently referring to Simon's claim for an easement.

         Clark and Martin also argued there was no HOA. The judge rejected that argument, referencing HOA bills. The judge stated, "[M]any of the things that you're saying the jury would have to determine, the Court is of the opinion that is a question of law, not a question of fact." The judge ruled the restrictive covenants could not be mentioned during voir dire and limited the jury trial to Clark and Martin's claims for promissory estoppel and trespass.

         The parties proceeded to jury trial with the understanding that all issues regarding the restrictive covenants would later be determined by the judge. The jury found in favor of Clark and Martin on their promissory estoppel claim and found that Clark and Martin's damages were $1133. The jury further found that Alfred Litchenburg "physically, intentionally, and voluntarily enter[ed] land solely owned by" Clark and Martin, but awarded zero damages for trespass.

         One month later, the parties appeared before the trial court for a bench trial. The judge heard testimony from several witnesses, including Clark, Martin, and Alfred Litchenburg. The judge ruled orally that the restrictive covenants had not been waived and that they prohibit Clark and Martin from erecting the gate. The court awarded attorney's fees to appellees pursuant to section 17 of the restrictive covenants.

         Almost a year later, the court signed a final order. The court awarded Clark and Martin $1378 against Linden and denied all other relief sought by Clark and Martin.[1] The court ordered that the restrictive covenants are valid and enforceable. It ordered that Clark and Martin are prohibited from erecting a gate across the common access drive that the Litchenburgs would have to pass through to access their property. The court further ordered that no gate may be erected by any of the owners on any lot or across the common access drive that another owner would have to pass through to access his property, with the exception of the common front security gate. Clark and Martin were ordered to remove, within 30 days, the fence, all concrete foundations, and every other structure they erected after the original petition was filed. The order also recites that when the last of the lots was sold the ACC was converted into an HOA and states, "The existence of the HOA and its legitimacy is further established by this Judgment and shall continue to exist until further order of this court." The judgment awards appellees attorney's fees in the amount of $28, 379 against Clark and Martin, plus conditional fees in the event of an appeal. The order does not mention the tortious interference cause of action.

         Complaints Regarding ...

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