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Murray v. C.I.A. Hidden Forest, Inc.

Court of Appeals of Texas, Ninth District, Beaumont

January 9, 2020

CHARLES MURRAY, Appellant
v.
C.I.A. HIDDEN FOREST, INC. AND NANCY CRAMER, Appellees

          Submitted on December 3, 2019

          On Appeal from the 284th District Court Montgomery County, Texas Trial Cause No. 17-09-11342-CV

          Before Kreger, Horton and Johnson, JJ.

          MEMORANDUM OPINION

          LEANNE JOHNSON JUSTICE.

         Appellant Charles Murray ("Murray") appeals the trial court's judgment in favor of Appellees C.I.A. Hidden Forest, Inc. ("the Property Owners Association") and Nancy L. Cramer ("Cramer") (collectively "Appellees"), granting a permanent injunction and ordering Murray to remove a mobile home from certain property. We affirm.

         Procedural Background

         In September 2017, the Property Owners Association and Cramer filed an original petition seeking a permanent injunction against Murray. The petition explained that Cramer was a property owner in Section 5 of the Hidden Forest Estates Subdivision ("the subdivision"). According to the petition, in February 2014, Murray made an "Affidavit to the Public" regarding Lots 136 through 139 in Section 5 of the subdivision for an onsite wastewater treatment system to be installed. Murray also made an "Affidavit Acknowledging Need to Join Properties" seeking to join the four lots because the onsite sewage system was located on all four lots. Murray subsequently moved a double-wide mobile home onto the four lots, which were then owned by Lester Ruthstrom.

         According to the plaintiffs, Lots 136 through 139 were subject to (1) restrictions recorded in Volume 776, Page 484 through Page 487 of the Deed Records of Montgomery County, Texas; and (2) restrictions recorded in Volume 963, Page 95 of the Deed Records of Montgomery County, Texas.[1] Plaintiffs alleged that the relevant restrictions stated:

1. b. Only a residence, garage, or tool house may be built on residential lots, and they must conform in appearance and construction generally to other dwellings in the Hidden Forest Estates subdivision. No trailer houses, mobile homes, or kindred structures will be permitted.

         Plaintiffs alleged that a deed restriction letter was sent to Ruthstrom and to Heather Lininger[2] in March 2014. In April 2014, the Property Owners Association president spoke with Ruthstrom, and the next month, the president told the attorney for the Property Owners Association that Lininger was willing to have the mobile home moved out, however the mobile home was not removed. In September 2014, a second attorney (and the plaintiffs' attorney in this proceeding) sent another deed restriction letter to Ruthstrom, but neither Ruthstrom nor Murray removed the mobile home.

         In October 2014, Ruthstrom deeded all four lots to Murray and the Property Owners Association sent a "Notice of the Opportunity to Meet with the Board" letter to Ruthstrom, Murray, and Lininger. According to the petition, in the meeting, Murray told the Property Owners Association that "there was no way a court would enforce these restrictions because there were other mobile homes in the subdivision." The petition asserted that although there were some mobile homes in the subdivision, they were in sections where there are no specific restrictions against trailers and mobile homes. According to the plaintiffs, Murray had told the Property Owners Association Board and Board members that he had no intention of complying with the restrictions against mobile homes. Plaintiffs sought a court order requiring Murray to remove the mobile home from Lots 136 through 139 and sought a permanent injunction prohibiting Murray from moving a "trailer house, mobile home, or kindred structure" on any lot in Sections 4 or 5.[3]

         In October 2017, Murray filed an answer asserting a general denial. In July 2018, Murray filed an amended answer, asserting the affirmative defenses of waiver and estoppel and asserting that "Plaintiffs'[] attempt to enforce against him the covenants and regulations at issue violates Texas law as arbitrary, capricious, and discriminatory."

         Evidence at Trial

         Testimony of Doug Walker

         Doug Walker testified that he was on the Board of the Property Owners Association and described how the Board dealt with requests for variances:

Q. What process did the [Property Owners Association] file for approval of a variance to the deed restrictions?
A. We would ask people to follow the process of bringing in their plans, making sure they had all the permits in place, and then sit down and discuss a timeline, and we asked for updates as far as what they were doing.
Q. Okay. So would the [Property Owners Association] consider allowing somebody to bring in a trailer or a mobile home if they had plans, a timeline, and, of course, a septic ...

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