Cause No. 08-1299-A
J. FRANK CLARK AND
MICHELLE CLARK
Plaintiffs
V.
THE COMING KING FOUNDATION, a Texas Non-Profit Corporation
Defendant
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IN THE DISTRICT COURT
KERR COUNTY, TEXAS
WILLIAM J. LESLIE, JR. and JANET LESLIE §
RICHARD N. GUTHRIE and BARBARA §
GUTHRIE, JOHN R. CAUSEY and SYLVIA §
A. CAUSEY, JOHN A. THOMAS and JUDY
THOMAS, JUDITH A. BRANDT,
Intervenor
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§ 216 th
JUDICIAL DISTRICT
DEFENDANT’S RESPONSE TO INTERVENORS’
MOTION FOR SUMMARY JUDGMENT
TO THE HONORABLE JUDGE OF SAID COURT:
Comes now Defendant, The Coming King Foundation (TCKF), in the above-styled and numbered cause, and files this Response to Intervenors‘ Motion for Summary Judgment. TCKF respectfully shows the Court as follows:
I.
F
ACTUAL
B
ACKGROUND
Intervenors pursue this action to preclude TCKF‘s planned raising of a cross on what is designated as Lot 11 in the putative Mesa Vista Subdivision (―the subject property‖) by seeking to enforce what they tout to be valid and enforceable restrictive covenants which preclude such land use. In this action, Intervenors‘ seek declaratory judgment and permanent injunctive relief.
Intervenors move for summary judgment under Texas Rule of Civil Procedure 166a(c) on their request for judicial declaration that the restrictive covenants at issue are valid and

enforceable and that such restrictions prohibit the erection of any sculpture or work of art, regardless of size (in this case, a cross) on TCKF‘s property. Intervenors also request permanent injunctive relief enjoining TCKF ―from constructing any improvement or structure on Lot 11, other than a dwelling in accordance with the Restrictions.‖ Such a request is not supported by the facts or history of the property, it is not equitable, and it is simply inappropriate under Texas law. As TCKF will show, Intervenors are not entitled to judgment as a matter of law on any of these points, and numerous fact issues exist which preclude summary judgment.
II.
S UMMARY J UDGMENT S TANDARD
The standard of review for a traditional summary judgment is well established. The movant must demonstrate there are no genuine issues of material fact, and he is entitled to judgment as a matter of law. See Southwestern Elec. Power Co. v. Grant, 73 S.W.3d 211, 215
(Tex. 2002); Fletcher v. Edwards , 26 S.W.3d 66, 73 (Tex. App.—Waco 2000, writ denied). As movant, a party seeking declaratory relief by means of a motion for summary judgment must prove it is entitled to declaratory relief as a matter of law. Lidawi v. Progressive County Mut.
Ins. Co.
, 112 S.W.3d 725, 730 (Tex. App.—Houston [14th Dist.] 2003, no writ). The moving party must establish there is no genuine issue of material fact with respect to those elements it must prove to receive declaratory relief. Id .; Bowers v. Taylor , 263 S.W.3d 260, 263-264
(Tex.App.—Houston [1 st
Dist.] 2007, no writ). Thus, a plaintiff is entitled to summary judgment in a declaratory action only if it conclusively proves all essential elements necessary to the claims asserted and that it is entitled to affirmative findings on each element as a matter of law.
The Court must take as true all evidence favorable to the nonmovant and indulge every reasonable inference and resolve all doubts in the nonmovant's favor. Stanton v. Forum
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Arlington Props.
, 2009 Tex. App. LEXIS 2833 at *5 (Tex.App.—Fort Worth Apr. 23, 2009, no writ).
To succeed on summary judgment in an action requesting injunctive relief, a movant must show there is no genuine issue of material fact with respect to any facts which would normally be considered in determining whether an injunction should be granted. Voice of the
Cornerstone Church Corp. v. Pizza Prop. Partners , 160 S.W.3d 657, 667 (Tex.App.—Austin
2005, no writ). In a case seeking injunctive relief with regard to enforcement of valid restrictive covenants, if no factual issues exist, the court may then interpret and apply provisions of the restrictive covenant. Cornerstone Church, 160 S.W.2d at 667-668; Tex. Health Care Info.
Council v. Seton Health Plan, Inc.
, 94 S.W.3d 841, 853 (Tex.App.—Austin 2002, writ denied).
To begin, this Court must sort out what is at issue in this present motion for summary judgment. Intervenors seek summary judgment on their requested declaratory and injunctive relief as follows: (1) ―the Restrictions in the Mesa Vista Subdivision are valid and binding‖; (2)
TCKF ―is in violation of those Restrictions‖; and (3) Intervenors are entitled to attorneys‘ fees against TCKF. Thus, to obtain summary judgment on the requested declaratory relief,
Intervenors must show they are entitled to the requested declaratory relief as a matter of law, that is, they must show: (1) ―the Restrictions in the Mesa Vista Subdivision are valid and binding‖ as a matter of law; and (2) TCKF‘s plan to construct a cross would violate those restrictions as a matter of law. If any issues of fact exist which would guide determination of these two points,
Intervenors‘ Motion for Summary Judgment must fail.
III .
A
RGUMENT AND
A
UTHORITIES
In Texas, restrictive covenants may be created four ways: (1) by grant, as a covenant running with the land, (2) by mutual agreement, (3) by implication, as reciprocal negative
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easement, and (4) by a general plan of development, as an equitable servitude. See Selected
Lands Corp. v. Speich, 702 S.W.2d 197, 198 (Tex. App. Houston [1st Dist.] 1985, writ ref‘d n.r.e.); Cannon v. Ferguson , 190 S.W.2d 831 (Tex. Civ. App. - Fort Worth 1945, no writ).
The present case concerns disputes only with regard to the first and fourth means of creating restrictive covenants, i.e., with covenants that run with the land and with equitable servitudes.
A.
INTERVENORS’ ARGUMENT THAT RESTRICTIVE COVENANTS ARE
VALID BECAUSE THEY “RUN WITH THE LAND” MUST FAIL
In Texas, a covenant runs with the land when it: (1) touches and concerns the land; (2) relates to a thing in existence or specifically binds the parties and their assigns; (3) is intended by the original parties to run with the land; and (4) when the successor to the burden has notice of the covenant. Inwood North Homeowners' Ass'n v. Harris , 736 S.W.2d 632, 635 (Tex. 1987);
Westland Oil Devel. Corp. v. Gulf Oil Corp ., 637 S.W.2d 903, 910-11 (Tex. 1982); Selected
Lands Corp.
, 702 S.W.2d at 199. In the context of Intervenors‘ Motion for Summary Judgment, the parties‘ dispute focuses on the third and fourth prongs, that is, whether the original parties to the Warranty Deed at issue intended for the disputed restrictive covenants to run with the land and whether TCKF took the property with notice of the existence of any restrictive covenants.
As shown by TCKF, Intervenors‘ arguments for summary judgment all fail as a matter of law all fail, and numerous fact issues exist which preclude the requested summary judgment declaration that the restrictive covenants at issue were valid and enforceable because they run with the land.
1. The Covenant Restrictions Intervenors Seek to Enforce Are Not Valid or Enforceable Against TCKF, and Thus, Do Not Run With The Land
Because TCKF is A Bona Fide Purchaser with Protected Status
As shown by TCKF‘s summary judgment evidence, the bona fide purchaser doctrine negates both the intent and notice elements necessary to find the restrictive covenants at issue
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run with the land. Because they do not run with the land, the purported covenant restrictions
Intervenors seek to impose are not valid or enforceable against TCKF. The first purchaser of the subject property, John and Rose Willems, were bona fide purchasers from the original developer,
Richard Pitts and wife, Mildred Pitts, and as such, John and Rose Willems took title of the subject property free and clear and without the burden of the subject restrictions. Under the
―shelter rule‖, TCKF succeeded to the property rights of the Willems even if TCKF did have notice that others contended the restrictions applied at the time TCKF acquired title.
To qualify as a bona fide purchaser, a purchaser must acquire property in good faith, for value, and without notice of any third-party claim or, in this case, any restrictive covenant. See
Madison v. Gordon , 39 S.W.3d 604, 606 (Tex. 2001); Hicks v. Loveless , 714 S.W.2d 30, 32
(Tex. App. – Dallas 1986, writ ref‘d n.r.e.). Once a purchaser of property achieves bona fide purchaser status, the property of such purchaser is not burdened by any encumbrance (including restrictive covenants), nor is it subject to any adverse claims, of which such purchaser had no actual or constructive notice. Id . Subsequent purchasers from the bona fide purchaser are protected under the ―shelter rule‖, which allows subsequent purchasers to succeed to the property rights of the bona fide purchaser. This rule is well established in Texas law. Id
. The ―shelter rule‖ within the context of the original bona fide purchaser doctrine states: ―if a second purchaser who has notice acquired title to land from a former purchase who was without notice and in all respects a bona fide purchaser, the second purchaser succeeds to the rights of the former purchaser and is protected as he would have been.‖
Slaughter v. Qualls , 149 S.W.2d 651, 657
(Tex. App. – Amarillo 1941), aff’d
162 S.W.2d 671 (Tex.1942); see also First United Financial
Corp. v. Speciality Oil Co ., 5 F.3d 944, 946-947 (5 th
Cir. 1993)(discussion of bona fide purchaser and shelter rule under the U.C.C.); Strekal v. Espe , 114 P.3d 67, 74 (Ct. App. Col. 2004); Richart
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v. Jackson , 758 A.2d 319, 323 (Ver. 2000); Sun Valley and Minerals, Inc. v. Burt , 123 Idaho
862, 868 (Ct. App. Idaho 1993) (all discussing bona fide purchaser and shelter rule doctrine within context of conveyance of real property). Thus, within the context of restrictive covenants, under the bona fide purchaser/shelter rule doctrine, if a party (in this case, Willems) received property as a bona fide purchaser, without actual or constructive knowledge of the restrictive covenants, such bona fide purchaser‘s property is not burdened by the restrictive covenant, and any subsequent purchaser (in this case, TCKF) will succeed to the same property rights as the original bona fide purchaser, even if such subsequent purchaser did have notice of the restrictions. See Hicks , 714 S.W.2d at 32; see also Madison v. Gordon , 39 S.W.3d 604, 606
(Tex. 2001); Slaughter , 149 S.W.2d at 657. a.
This issue was settled over 20 years ago: Hick v Loveless, 714 S.W. 2d
30, 32 (Texas. App. – Dallas 1986, writ ref’d n.r.e.).
In Hicks v. Loveless , a case factually similar to this one, the Dallas Court of Appeals held the bona fide purchaser doctrine applies not just to title disputes, but also to the restrictive covenants. See id. In that case, a property owner, Hicks , brought suit seeking injunctive relief against an adjacent property owner, Loveless, alleging Loveless‘ use of the property violated a deed restriction prohibiting ―business or commercial pursuits.‖ Loveless received the property from Wallace who was the first purchaser from the developer of the subdivision. The deed from the original developer to Wallace did not specifically reference the restrictions and, in fact, the deed restrictions were recorded after the execution and delivery of the deed to Wallace. Loveless asserted that the restrictions were not enforceable against him because his predecessor in title,
Wallace, was a bona fide purchaser and he succeeded to Wallace‘s rights. The evidence indicated that the deed restrictions were recorded within minutes of the recording Wallace‘s deed, that the original developer verbally explained the restrictions to Wallace before conveying
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the property to him and the closing of the sale to Wallace and the recordation of the restrictive covenants was a ―simultaneous‖ closing and that the developer actually signed and executed the restrictive covenants in the presence of Wallace. See Hicks , 714 S.W.2d at 32.
The Dallas Court of Appeals reasoned the issue whether the deed restrictions bound
Loveless depended upon determination whether the restrictions burdened title to Loveless‘ predecessor, Wallace. The issue of whether the restrictive covenants bound Wallace‘s property was determined by whether Wallace was a bona fide purchaser. The Court held, pursuant to the bona fide purchaser doctrine, that ―[i]f Wallace purchased the lot without notice of the restrictions, then the restrictions would not burden his title, and Loveless, as a bona fide purchaser, would succeed to Wallace‘s property rights, even if Loveless did have notice of the restrictions. See Hicks , 714 S.W.2d at 32 (citing Slaughter , 149 S.W.2d at 657). Given the facts in that case, i.e. that the original developer explained the restrictive covenants to Wallace, and the restrictions were executed in front of him, his deed expressly stated it was subject to ―any and all restrictions‖, the Court in
Hicks held Wallace had ―actual‖ notice of the restrictive covenants, and accordingly, Wallace did not qualify as a bona fide purchaser. b.
The rule of law announced in the Hicks case is critical and directly on point and requires a finding that TCKF is a bona fide purchaser.
In this case, as set forth in Hicks , the purported restrictive covenants do not run with the land because the first and original purchaser of the subject property, John Willems, was a bona fide purchaser. See Exh. A. In this case the original purchaser, the Willems, took title of the subject property from the developer, Richard Pitts, on July 19, 1972. On the date the first purchaser, John Willems, was conveyed title to the subject property from the developer, Richard
Pitts, there was no plat recorded which would give actual or constructive notice, there were no restrictions recorded which would give constructive notice and there were no restrictions
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referenced in or created in Willems deed. Nothing existed in the Real Property Records of Kerr
County, Texas, to even, arguably, give Willems constructive notice of the restrictions at the time of executing and recording Willem‘s deed. There is no evidence Willems had actual notice and, as a matter of fact, the evidence shows the restrictions were not recorded until much later.
Therefore, no document even existed which could have possibly provided Willems actual notice.
Further, the date Willems acquired title from Pitts, the purported restrictive covenants had not yet been recorded, and the Warranty Deed conveyed the property to Willems without any restrictions nor were any restrictions imposed as a reservation or exception to conveyance and warranty. Id.
Thus, Johns and Rose Willems took the property that is the subject of this action from Richard Pitts as a bona fide purchaser, that is, in good faith, for value and without notice of any restrictive covenants. Further, in this case, unlike Hicks , however, the purportedly valid restrictive covenants were not recorded within minutes, but were recorded over two months after this transfer of property. See Exh B. Further, unlike Hicks
, there was no ―simultaneous‖ closing and no explanation by the developer of the existence of the restrictions and a recording of the restrictive covenants a full two months after the deed to Willems was recorded. There is no evidence whatsoever that Willems had actual or constructive notice of the restrictions.
As stated in Hicks , it is the original purchaser of the property in question, John Willems, who determines bona fide purchaser status, and once achieved all subsequent purchasers achieve the same protected status under the ―shelter rule‖. In this case, it is undisputed and the summary judgment evidence shows, the Willems were bona fide purchasers. Thus, TCKF, the Willems‘ successor in interest, is cloaked with the same status, rights and protection under the ―shelter rule‖ and takes the subject property free and clear without the burden of the restrictive covenants.
TCKF is protected by the bona fide purchaser status of John and Rose Willems even if it
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acquired the property with actual or constructive knowledge of any restrictive covenants that may be imposed on other properties. See Hicks, 714 S.W.2d at 32.
Intervenors present no evidence that John and Rose Willems or any subsequent grantee and/or grantor were not bona fide purchasers. Instead, TCKF presents summary judgment evidence that John and Rose Willems were the original purchasers of the property from Richard
Pitts and took the property without any restrictive covenants. See Exh. A. TCKF also presents affidavits and deeds from every predecessor grantee and grantor attesting that they intended and did, in fact, take the subject property without restrictive covenants. See Exhs. D,E,F,G,H,I,J. c.
All predecessor deeds show the Willems were bona fide purchasers, and TCKF succeeded to the protected rights.
TCKF presents summary judgment evidence of every predecessor deed. As discussed previously, the Warranty Deed from Richard and Mildred Pitts to John and Rose Willems shows this conveyance did not impose or reference any restrictive covenants. See Exh. A. The
Warranty Deed conveying the property from Rose Willems to Clifford Reeh also did not impose or reference any restrictive covenants. See Exh. C. The attached Correction Warranty Deeds conveying the subject property from Clifford Reeh to Hershel Reid to Greater Horizons, and finally to TCKF, show the property was conveyed without creation or imposition of any restrictive covenants exactly the same way and form that the original bona fide purchaser,
Willems, took title to the subject property. See Exhs. D,F,H. The affidavits of the grantors in each of these Correction Warranty Deeds support the intentions of the parties to convey the subject property without creation or imposition of any restrictive covenants, just as the original bona fide purchaser took the property. See Exhs. E,G,I,J. Under the Hicks case and the ―shelter rule‖, in sum, Willems, in good faith, purchased property from Pitts, for good and valuable consideration recited in his deed and without constructive or actual notice of the restrictive
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covenants in question. As such, Willems was a bona fide purchaser and TCKF as a predecessor to Willems , succeeded to the rights of Willems and takes free and clear of such restrictions, even if TCKF had actual or constructive notice of any restrictive covenants, all in accordance with the rationale and reasoning of Hicks .
Based upon TCKF‘s summary judgment evidence consisting of the affidavits and deeds showing every transfer of the subject property, there is at least a genuine issue of material fact whether TCKF is sheltered through bona fide purchaser status, and thus, protected from enforcement of any restrictive covenants on the subject property. At the very least, there are genuine issues of material fact which preclude summary judgment. Based upon this bona fide purchaser protection under the shelter rule, Intervenors cannot establish the third or fourth prongs of their burden to show the restrictive covenants at issue run with the land: that it was intended the restrictive covenants run with the land and TCKF had notice of the restrictive covenants. For this reason, it would be error to grant declaratory summary judgment that the restrictive covenants are valid and enforceable against TCKF.
2 . The Restrictions Intervenors Seek To Enforce Are Not Valid Or Enforceable
Against TCKF, And Thus, Do Not Run With The Land, Based Upon The
Statute Of Frauds.
While Intervenors contend the restrictive covenants at issue are valid and enforceable against TCKF because they run with the land, TCKF asserts the restrictive covenants are void as a matter of law because they violate the statute of frauds due to lack of a legally sufficient property description and the facial ambiguity of the document itself.
The document purporting to impose the restrictive covenants at issue states, ―MESA
VISTA SUB-DIVISION is intended as a residential subdivision….‖ Exh. B, par. I. The document contains no further description of the pertinent land to which the purported restrictive
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covenants apply, contains no reference to any recorded plat, contains no lot, block number or indication of the amount of land encumbered, nor does it give any description of the location of the subject property, such as the city, county or state. These are not technical deficiencies…they are fatal omissions. a.
The Restrictive-Covenant Document Does Not Contain A
Legally Sufficient Property Description
Interpretation of documents passing or imposing restrictive covenants are subject to the statute of frauds.
1
The statute of frauds is well established in Texas and requires that ―in all instruments for the conveyance of lands the description must be so definite and certain upon the face of the instrument itself, or in some other writing referred to, that the land can be identified with reasonable certainty; otherwise, the instrument is void under the Statute of Frauds.‖
Republic Nat'l Bank v. Stetson , 390 S.W.2d 257, 261 (Tex. 1965)(citing Greer v. Greer , 144 Tex.
528, 191 S.W.2d 848, 849-50 (1946)); Morrow v. Shotwell , 477 S.W.2d 538 (Tex 1972). Cases interpreting this established rule hold that to satisfy the statue of frauds, the document must contain a legal description of the property that ―must not only furnish enough information to locate the general areas as in identifying it by tract survey and county, it need contain information regarding the size, shape, and boundaries.‖ Reiland v. Patrick Thomas Properties ,
213 S.W.3d 431, 437 (Tex. App. Houston [1 st
Dist.] 2006); Morrow , 477 S.W.2d at 539. In very limited circumstances, ―if enough appears in the description so that a person familiar with the
1
― The Statute of Frauds requires that a contract for the sale of real estate be in writing and signed by the person to be charged with the promise or agreement or by someone lawfully authorized to sign for the person. TEX. BUS. &
COM. CODE ANN. § 26.01 (Vernon 2002). The Statute of Conveyances likewise dictates that a conveyance of real estate be in writing and subscribed to and delivered by the conveyor. TEX PROP. CODE ANN. § 5.021 (Vernon
2004). Because the test for sufficiency of a writing is essentially the same in both the Statute of Frauds and the
Statute of Conveyances, we refer generally to the Statute of Frauds.‖ Nicol v. Gonzales , 127 S.W.3d 390, 393 (Tex.
App. Dallas 2004) ( citing W. Beach Marina, Ltd. v. Erdeljac , 94 S.W.3d 248, 264 & n.10 (Tex. App.-Austin 2002, no pet.)).
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area can locate the premises with reasonable certainty, it is sufficient to satisfy the statute of frauds.‖ Reiland, 213 S.W.2d at 539. If a conveyance of an interest in real property does not sufficiently describe the land to be conveyed, or, in this case, the land to be burdened by restrictive covenant, it is void under the statute of frauds. Reiland , 213 S.W.3d at 437; Pick , 659
S.W.2d at 637.
Given the rule that a document contains sufficient description if ―a person familiar with the area can locate the premises with reasonable certainty‖, one must be careful in cases such as this one to avoid using judicial hind sight to determine legal sufficiency of a property description utilizing common knowledge or parol evidence. ―Even when ‗the record leaves little doubt that the parties knew and understood what property was intended to be conveyed…the knowledge and intent of the parties will not give validity to the contract, and neither will a plat made from extrinsic evidence.‘‖ Reiland , 213 S.W.3d at (quoting Morrow , 477 S.W.2d at 540). The rule relating to the admissibility of parol evidence to aid descriptions in contracts for the conveyance of land is as follows:
[t]he certainty of the contract may be aided by parol only with certain limitations.
The essential elements may never be supplied by parol.
The details which merely explain or clarify the essential terms appearing in the instrument my ordinarily be shown by parol. But the parol must not constitute the framework or skeleton of the agreement. That must be contained in the writing. Thus, resort to extrinsic evidence, where proper at all, is not for the purpose of supplying the location or description of the land, but only for the purpose of identifying it with reasonable certainty from the data in the memorandum. Emphasis added.
Morrow , 477 S.W.2d at 540 (quoting Wilson v. Fisher , 188 S.W.2d 150, 152 (Tex. 1945)).
Thus, parol evidence may only be used if the data within the document references an outside document or directs attention outside the document itself. See id.
Thus, in this case, the restrictive-covenant document, itself, must provide sufficient description to allow a person to identify the pertinent land with reasonable certainty. Any
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evidence of common knowledge or evidence the parties knew and understood what property was intended is improper for the purpose of supplying the location or description of the land identified as ―Mesa Vista Subdivision‖.
See id.
In this case, as in Reiland , the purported restrictive covenants Intervenors seek to enforce are void under the statute of frauds because the document does not contain any reference to a property that, even remotely, constitutes an adequate property description to satisfy the statute of frauds. See Exh. B. As in Reiland , the restrictive-covenant document does not furnish any identification information such as a tract number, survey, abstract or even the county of location, nor does it contain any information regarding the size, shape or boundaries of the referenced land. Exh. B; see Reiland , 213 S.W.2d at 437. As in Reiland
, ―there is nothing ‗indicating the shape of the block or the courses and lengths of its border lines or those of the … acres.‘‖ Exh.
B; see id . ( quoting Matney v. Odom , 210 S.W.2d 980, 982 (Tex.1948)). The document provides only a generic name of ―Mesa Vista Sub-division‖, which, at the time was not a platted subdivision filed of record. Thus, the data in the document itself, did not provide sufficient information to provide an adequate property description. Further, as in Reiland , admission of any extrinsic evidence (such as common knowledge, intent, knowledge of the parties or other filed documents such as a plat) are all inadmissible because the document provides no reference to any outside source to look to in determining the property location.
Frankly, this is not even a close call. It is long-standing, fundamental Texas property law. Without an adequate property description, from which one may identify the property at issue, the restrictive-covenant document is void under the statute of frauds. Because the restrictive-covenant document is void as a matter of law, the restrictions are not valid or enforceable against TCKF.
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b.
The Restrictive-Covenant Document Is Vague And Ambiguous
On Its Face
To be enforceable, restrictive covenants must be clear and unequivocal. Interpretation of restrictive covenants is governed by the same rules of contract construction. Pilarcik v. Emmons ,
966 S.W.2d 474, 478 (Tex. 1998);
Scoville v. Springpark Homeowner’s Ass’n
, 784 S.W.2d 498,
502 (Tex. App. – Dallas 1990, writ denied). Like a contract, interpretation of restrictive covenant becomes a fact issue to be resolved by extrinsic evidence when application of the rules of construction leaves genuine uncertainty as to which of two meanings is proper. Harris v.
Rowe , 593 S.W.2d 303, 306 (Tex.1979); Candlelight Hills Civic Ass'n v. Goodwin , 763 S.W.2d
474, 477 (Tex.App.--Houston [14th Dist.] 1988, writ denied). Further, like a contract, restrictive covenants are ―‘unambiguous as a matter of law if [they] can be given a definite or certain legal meaning.‘‖
Pilarcik , 966 S.W.2d at 478.
The restrictive covenants at issue are void under the statute of frauds because the statement that they apply to the ―Mesa Vista Sub-division‖ is vague and ambiguous. To begin,
Richard Pitts had not filed or recorded a plat of any ―Mesa Vista Sub-division‖ at the time he filed the restrictive covenants document. See Exh. K, affidavit of Lee Voelkel; see also Exhs.
B,P. Further, since that time, Pitts recorded a plat, but did not do so in accordance with Kerr
County Commissioner‘s Court Order No. 9144.
See Exh. K, affidavit of Lee Voelkel; see also
Exhs. B,P. The plat was never approved by the Kerr County Commissioner‘s Court as required to formally file and form a formal ―subdivision‖. See id. Thus, reference in the restrictive covenants document to ―the Mesa Vista Sub-division‖ is legally inadequate and vague because no such subdivision existed at the time, nor has any such official subdivision been properly approved by Commissioners‘ Court of Kerr County, Texas or recorded in the Plat Records of
Kerr County, Texas. Reference to a subdivision that does not exist constitutes ambiguity on the
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face of this document. Any interpretation of the property referred to by the description ―Mesa
Vista Sub-division‖ may only be accomplished by reference to extrinsic evidence. Therefore, interpretation becomes a question of fact and cannot be determined by summary judgment. The term ―Mesa Vista Sub-division‖ is not a definite or certain legal description of the subject property, and thus, cannot be unambiguous as a matter of law. Therefore, interpretation becomes a question of fact and cannot be determined by summary judgment.
3. The Restrictions Intervenors Seek To Enforce Are Not Valid Or
Enforceable Because The Correction Deeds Show Lack Of Intent Or
Notice Required For The Covenants To Run With The Land.
The Correction Deeds and supporting affidavits presented by TCKF as summary judgment evidence dispel both the third and fourth elements Intervenors must show to prove the restrictive covenants at issue run with the land. The rule in Texas is well settled that a subsequent grantee of land who takes with notice of a restrictive covenant, binding upon his grantors , is also bound thereby. Assuming the covenants are binding upon the grantors (which they are not in this case), such covenants run with the land and are binding upon any grantee, independently of any declaration or statement to that effect in the conveyance. Stephens v.
Coffeen , 207 S.W.2d 704, 706 (Tex. Civ. App. 1947); see also 12 Tex.Jur., pp. 156, 157, sec.
101. Intervenors rely heavily on this established rule in support of their summary judgment argument that the restrictive covenants at issue run with the land, arguing TCKF took the subject property with actual notice of the restrictive covenants at issue. Intervenors support this argument with deposition testimony from TCKF, Max Greiner, in which he states he knew the
Warranty Deed transferring the subject property to TCKF contained restrictive covenants.
However, Intervenors‘ strained interpretation that would seem to bind TCKF to the restrictive covenants does not apply under these facts, and thus, Intervenors‘ argument must fail.
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The rule of ―notice‖, as it applies in this context states a subsequent grantee must take property with notice of covenants that ―are binding upon his grantors‖. See Stephens , 207 S.W.2d at 706.
The covenants at issue in this case are not binding upon any of TCKF‘s grantors. As evidenced by the Correction Deeds and supporting affidavits from every one of TCKF‘s predecessor grantors, the subject property passed from the Pitts to the original property owners, the Willems, without restrictive covenants. See Exh. A.
As discussed previously and as shown by TCKF‘s summary judgment evidence, Richard
Pitts, the original landowner conveyed five lots without any restrictive covenants or use restrictions prior to his attempt to record restrictive covenants on the other seven lots.
Irrespective of any later imposed restrictive covenants (and without discussion of their lack of validity based upon incorrect recording), the five lots Pitts transferred were not burdened with any restrictive covenants. Further, as discussed previously and as shown by TCKF‘s summary judgment evidence, John Willems was the original grantee of the subject property from Richard
Pitts. The applicable Warranty Deed shows this transfer was made without any restrictive covenants or use restrictions. Thus Willems took the subject property from Pitts without the intent by either party (Pitts, as grantor, and Willems, as grantee) for it to be burdened with any use restrictions and without notice of any future restrictive covenants to be imposed on other lots.
See Exh. A. The property remained with Willems and unburdened by any alleged restrictions for approximately 12 years.
The next transfer of the subject property occurred on May 9, 1984, from Rose Willems to
Clifford Reeh. See Exh. C. The Warranty Deed shows this transfer was made without creating or acquiescing in any restrictions or intending to create any restrictive covenants on the subject property. Id.
In the first affidavit from Dorothy Reeh, she attests she is the Independent
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Executor of the Estate of Clifford Reeh. See Exh. E . Ms. Reeh attests her late husband received the subject property from Rose Willems, a feme sole, without any restrictive covenants, and the parties did not intend to impose any restrictive covenants upon the subject property. Ms. Reeh attests Clifford Reeh discussed the intentions and plans to erect a cross on the subject property with Hershel Reid and TCKF prior to transferring it to Hershel Reid. Id . Based upon his desire to assist TCKF and to be a part of the plans to erect a cross on the subject property, Mr. Reeh agreed to sell the property. Ms. Reeh attests it was Mr. Reeh‘s express intent to transfer the subject property so a cross could be erected. Ms. Reeh attests Mr. Reeh did not intend to create, pass on or impose any restrictive covenants or use restrictions on the subject property because he wanted the cross to be erected on that property. Ms. Reeh attests Mr. Reeh intended to pass the property to TCKF just as he received it, without any restrictive covenants or use restrictions. See id. While in the possession of Clifford Reeh, the property remained unburdened by any alleged restrictions for over 21 years.
Next, the summary judgment evidence shows, that in furtherance of his intent to assist in the erection of a cross on the subject property, Mr. Reeh conveyed it to Hershel Reid. See Exh.
D. At the time Clifford Reeh deeded the property to Hershel Reid, the property had been unburdened by any restrictions for almost 34 years. This Correction Warranty Deed shows the property was conveyed from Mr. Reeh to Mr. Reid on November 10, 2005, without any restrictive covenants or use restrictions and evidences the intent of the parties to pass the property without any restrictive covenants. Id.
Further, in his affidavit, Mr. Reid attests he did not have notice of any covenant restrictions that burdened the subject property. Exh. G. Further, it was his intent to take the property without any restrictive covenants for the express purpose to assist in TCKF‘s plans to erect a cross on the subject property.
See Exh. G. Based upon his
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desire to assist TCKF and to be a part of the plan to erect a cross on the subject property, Mr.
Reid agreed to buy the property and then transfer it to Greater Horizons, Inc. Mr. Reid attests it was his express intent to eventually transfer the subject property to TCKF so a cross could be erected, and thus, without any restrictive covenants. See Exh. G. Mr. Reid attests he did not intend to create, pass on or impose any restrictive covenants or use restrictions on the subject property because he wanted the cross to be erected on that property. Mr. Reid attests he intended to pass the property to Greater Horizons, and then to TCKF without any restrictive covenants or use restrictions. Id.
The summary judgment evidence shows, that in furtherance of his intent to assist in the erection of a cross on the subject property, Mr. Reid conveyed it to Greater Horizons. Exhs.
F,G,I. The Correction Warranty Deed conveying the subject property from Mr. Reid to Greater
Horizons shows the property passed without any restrictive covenants or use restrictions and evidences the intent of the parties to pass the property without any restrictive covenants. Id.
Finally, TCKF‘s summary judgment evidence shows that in furtherance of the intent to assist in the erection of a cross on the subject property, Greater Horizon transferred the subject property to TCKF. Exh. H,I. This Correction Warranty Deed shows the property passed from
Greater Horizon to TCKF without any restrictive covenants or use restrictions and evidences the intent of the parties to pass the property without any restrictive covenants. Exhs. H,I. Further, by affidavit, Laura McKnight as legal representative of Greater Horizon, attests Greater Horizon did not have notice of any restrictive covenants which burdened the subject property. Exh. I.
Instead, it was Greater Horizon‘s intent to take and to pass the property without any restrictive covenants for the express purpose to assist in TCKF‘s plans to erect a cross on that site. Id .
Based upon the desire to assist TCKF and to be a part of the plan to erect a cross on the subject
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property, Laura McKnight, as representative of Greater Horizon, attests it was Greater Horizon‘s express intent to transfer the subject property to TCKF, so a cross could be erected, and thus, without any restrictive covenants. Exh. I. Laura McKnight attests Greater Horizon did not intend to create, pass on or impose any restrictive covenants or use restrictions on the subject property because Greater Horizon wanted the cross to be erected on that property.
In these affidavits, each of the predecessor grantors attests to the express intent to convey the subject property with no restrictive covenants. See Exhs. E,G,I. This makes perfect sense, of course, because all were united in the single purpose of eventually deeding the property to TCKF for the purpose of erecting a cross. Each predecessor grantor of TCKF also took the property with no notice of the creation or imposition of any restrictive covenants. Id. Based upon this evidence, Intervenors cannot show the restrictive covenants were binding upon the grantors of
TCKF. Therefore it is improper to impose the rule that any subsequent grantee of land who takes with notice of a restrictive covenant, binding upon his grantors, is also bound thereby. Stephens v Coffeen, 207 S.W.2d 704, 706 (Tex. Civ. App. 1947); see also 12 Tex.Jur., pp. 156, 157, sec.
101. Because the restrictive covenants at issue were not binding upon TCKF‘s grantors, even if
TCKF took the property with notice, actual or constructive, of the restrictive covenants they still do not run with the land, and TCKF is not bound by them. See id.; see also See Hicks, 714
S.W.2d at 32 (citing Slaughter, 149 S.W.2d at 657).
Although the above analysis is important in clarifying the intent and conduct of the above-named grantors and grantees, the intent required in the ―running with the land‖ analysis is the intent of the original parties (Pitts and Willems) to impose the restrictive covenants.
Although Intervenors surely do not want to focus on this issue because it precludes their claims as a matter of law, it is critical for this court‘s analysis. Obviously, Pitts did not intend for the
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restrictive covenants to run with land because he would have either recorded them prior to the first conveyance to Willems or included them in the deed to Willems. However, he didn‘t either.
There is no mention whatsoever in the restrictive covenants themselves that they are to ―run with land‖ or that they are binding upon their successors and assigns. This is a very typical provision in deed restrictions and restrictive covenants and its omission in the restrictive covenants is, at the least, indicative that there was no intent that the restrictive covenants run with the land.
Further, the facts clearly show that Mr. Pitts did not intend for the restrictions to apply to all sales and all properties. As an example of his true intent, TCKF‘s Summary Judgment evidence shows that Mildred Pitts omitted the restrictive covenant from a deed she repurchased from an original purchaser and then subsequently re-conveyed to another purchaser in 1989. See
Exh. L. At the time of the re-conveyance by Pitts, the restrictive covenants were of record. If
Pitts intended that they run with the land he certainly would have included them in the second chance he got at conveying such lot. See id.
However, he did not. One can only speculate as to his reasons, but there certainly can be no conclusion as a matter of law that Pitts intended the restrictions to apply to every sale and every property.
Thus, this summary judgment evidence consisting of the Correction Warranty Deeds and the supporting affidavits dispels the third and fourth requirements, notice of the covenants and intent, required of Intervenors to show the restrictive covenants at issue run with the land.
Therefore, the restrictive covenants may not be enforced against TCKF. Without these required elements, Intervenors are not entitled to declarative summary judgment that the restrictive covenants run with the land and are, therefore, valid and enforceable. At the very least, this summary judgment evidence raises genuine issues of material fact whether the predecessor grantors and TCKF took the subject property with notice of any restrictive covenants and with
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intent to be burdened with restrictive covenants. For this reason, declarative summary judgment that the restrictive covenants run with the land and are, therefore, valid and enforceable is improper.
B. INTERVENORS’ ARGUMENT THAT RESTRICTIVE COVENANTS ARE
VALID AND ENFORCEABLE BASED UPON “EQUITABLE SERVITUDE”
MUST FAIL
If an otherwise valid restrictive covenant does not fulfill the technical requirements to be enforceable in equity, as a covenant running with the land, and Intervenors have failed to establish the requirements of an equitable servitude, it may still bind successors to the alleged burdened land as an equitable servitude. In this case, however, Intervenors‘ argument that the restrictive covenants at issue in this case are enforceable under the doctrine of equitable servitude is replete with genuine issues of material fact that preclude summary judgment on this point and
Intervenors have failed to establish the requirements of an equitable servitude.
Because it sets the legal context for the factual disputes, the doctrine of equitable servitude must, first, be briefly discussed. The doctrine of equitable servitude generally applies when an owner of real property subdivides it into lots and sells these lots with restrictive covenants specifically designed to further the owner‘s general plan or scheme of development.
Selected Lands Corp ., 702 S.W.2d at 198-200; Lehmann v. Wallace , 510 S.W.2d 675, 680
(Tex.App.-San Antonio 1974, writ ref‘d n.r.e). Thus, where parcels are sold with reference to such a general plan or scheme to persons having notice of the common scheme , the grantees may enforce against other grantees restrictions placed in each deed to ensure the common uniform plan. Lehmann, 510 S.W.2d at 681; Monk v. Danna, 110 S.W.2d 84, 86 (Tex.Civ.App. -- Dallas
1937, writ dism'd). If it is positively shown there is an intended, organized common scheme of development by the imposition of restrictive covenants in each of the deeds affected , a purchaser
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who takes possession of property with actual or constructive notice of this scheme of development is bound by any restrictive covenants put in place to carry out the scheme. As stated, discussed and followed in these seminal cases, the general rule with regard to the doctrine of equitable servitude is stated as follows:
It may be safely stated to be that where there is a general plan or scheme adopted by the owner of a tract, for the development and improvement of the property by which it is divided into streets and lots, and which contemplates a restriction as to the uses to which lots may be put, or the character and location of improvements thereon, to be secured by a covenant embodying the restriction to be inserted in the deeds to purchasers, and it appears from the language of the deed itself, construed in the light of the surrounding circumstances, that such covenants are intended for the benefit of all the lands, and that each purchaser is to be subject thereto, and to have the benefit thereof, and such covenants are inserted in all the deeds for lots sold in pursuance of the plan, a purchaser and his assigns may enforce the covenant against any other purchaser, and his assigns, if he has bought with actual or constructive knowledge of the scheme , and the covenant was part of the subject-matter of his purchase .
Nelson v. Jordan , 663 S.W.2d 82, 84-85 (Tex. App.-Austin 1983, writ ref‘d n.r.e.)(emphasis added)( quoting Curlee v. Walker , 244 S.W. 497, 498 (Tex. 1922 and Hooper v. Lottman , 171
S.W. 270 (Tex.Civ.App. – El Paso 1914, no writ)); see also Lehmann , 510 S.W.2d at 680;
Commissioners Court v. Albin , 992 S.W.2d 597, 605 (Tex. App. Texarkana 1999, writ denied).
In sum, based upon this long line of case law, the necessary elements a property owner must show to enforce restrictive covenants against another property owner under the doctrine of equitable servitude are: (1) there is a common plan or development scheme adopted by the original owner or developer of a tract of land; (2) the common plan of development contemplates restriction(s) as to the uses to which each of the lots may be put; (3) such covenant restrictions are inserted in all the deeds for lots sold in pursuance of the plan; and (4) the purchaser upon which the covenant restrictions are sought to be enforced bought the land with actual or constructive knowledge of the scheme of development and the covenant was part of the subject-
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matter of his purchase. Curlee, 244 S.W. at 498; Lehmann, 510 S.W.2d at 681; Monk, 110
S.W.2d at 86; Nelson , 663 S.W.2d at 84-85. By their very nature, these elements require determination of many fact issues. In any event, in determining whether the doctrine of equitable servitude may be used to enforce restrictive covenants, the central issues typically become whether the original developer imposed a common scheme of development and whether the purchaser had actual or constructive notice of a common scheme of development. The summary judgment evidence shows that neither issue should be resolved in Intervenors‘ favor, but at the very least, there are certainly fact issues in this regard. First, the summary judgment evidence shows Pitts did not have a common scheme of development. Second, the correction deeds cure any issue or doubt with regard to intent and notice of a common scheme of development and whether the subject restrictive covenants were placed in every deed affected.
Third, even if TCKF did purchase the subject property with notice of the restrictive covenants, for this notice to support enforcement of the restrictions as an equitable servitude, Intervenors must, first, show the general plan was maintained, understood, accepted, relied upon and acted upon. They cannot do so under the facts in this case. Therefore, based upon the summary judgment evidence presented, and the fact issues raised therein, the doctrine of equitable servitude does not apply under these facts. Each of these reasons for denial of Intervenors‘
Motion for Summary Judgment will be discussed in turn.
1. There Is No Common Scheme of Development
The doctrine of equitable servitude may not be imposed as a matter of law in this case because genuine issues of material fact exist whether Richard Pitts imposed any covenant restrictions under a common scheme of development. As stated previously, to invoke the doctrine of equitable servitude, the central issue typically becomes whether the original
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developer (Pitts) intended to impose a ―common scheme of development‖. Such a common scheme may be shown in two ways: (1) uniformity of restrictive covenants at issue; and (2) subjective elements to show intent. Obviously, determination whether a developer imposed a common scheme of development is a question of fact for the jury, and is, at the very least, certainly a fact issue in this case. a.
Uniformity
In some limited cases, a general plan may be established by the insertion of substantially uniform covenants in each deed affected by a common development. Evans , 796 S.W.2d at 466
( quoting Minner v. Lynchburg , 129 S.e2d 673, 679 (Va. 1963)); Lehmann, 510 S.W.2d at 681.
Uniformity in the restrictions imposed on each lot is one of the strongest proofs of a common scheme of development. Lehmann, 510 S.W.2d at 680; Ragland v. Overton , 44 S.W.2d 768, 772
(Tex.Civ.App.-Amarillo 1931, no writ). However, even without absolute uniformity, there may be departures from the restrictions without destroying the integrity of the scheme of development as a whole. However, these are rare exceptions. In the event some lots have restrictions imposed upon them and others do not, if the general plan has been maintained from its inception, without material departure therefrom, and if it has been understood and relied upon by those concerned, it is binding and enforceable upon grantees of property who took with notice of the common scheme. Keith v. Seymour , 335 S.W.2d 862, 868 (Tex. Civ. App. Houston 1960, writ refused n.r.e); Bethea v. Lockhart , 127 S.W.2d 1029, 1031-1032 (Tex.Civ.App.-San Antonio 1939, writ ref‘d n.r.e.). A general scheme or plan need not apply to the whole tract or subdivision; the general plan or scheme may be that the restrictions only apply to certain well-defined similarly situated lots. Evans v. Pollock , 796 S.W.2d 465, 470-472 (Tex. 1990).
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In this case, Intervenors failed to establish Richard Pitts implemented a common scheme of development through uniformity of restrictions at issue because the summary judgment evidence shows he haphazardly and inconsistently imposed the restrictive covenants at issue.
Initially, Richard and Mildred Pitts sold five random lots without any use restrictions or restrictive covenants, including the subject property already discussed. See Exhs. A,L,M,N. Not only did Richard Pitts convey the first five lots without restrictions, Mildred Pitts repurchased one lot (property designated as Lot 12) and then resold it without restrictions. See Exh. L.
Clearly this haphazard and random conveyance of lots prior to any imposition of restrictive covenants shows an intent to not impose a common scheme of development within the boundaries of the 12 subdivided lots because these five lot owners could make any use of their properties they desired and were not burdened with any restrictive covenants. Mildred Pitts, wife of Richard Pitts and co-developer and co-grantor of the original deeds, had an opportunity to reflect Richard Pitts‘ intent to impose a common scheme of development by inserting it into the deed upon the resale of Lot 12 even if she and Richard inadvertently failed to include them in the conveyance of the first five lots. Mildred Pitts, as an original developer, did not do this and, in fact, reconveyed Lot 12 without the restrictions. There is not any stronger evidence of Richard
Pitts‘ intent in failing to include the restrictive covenants in the reconveyance of Lot 12 in 1986 once they had been recorded.
The five lots sold without restrictive covenants were not in a specific common area, but were sparsely spread throughout the 12 lots. See Exh. P. More importantly, though, the seven lots sold with restrictive covenant were also sparsely scattered throughout the whole site comprised of the 12 lots. See id . Thus, it cannot be shown that the seven sold with restrictive covenants were well-defined, similarly situated lots. See Evans , 796 S.W.2d at 46. The fact that
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Richard Pitts might have changed his mind later, after selling the initial five lots and then imposed restrictive covenants to subsequent purchased lots does not change the fact that the first five were not burdened with any use restrictions. Unlike Evans , it cannot be shown that the intended general plan or scheme was that the restrictions only apply to certain well-defined similarly situated lots because the initial five lots sold without restrictive covenants are randomly and sparsely placed within the seven sold with restrictive covenants. See Evans , 796 S.W.2d at
470-472. Thus, the fact that five random lots were sold without use restrictions or restrictive covenants and seven random lots were sold with such restrictive covenants shows a lack of uniformity within the whole 12 lots.
Further, crucial evidence of a lack of a common scheme of development is the fact that after Pitts recorded the restrictive covenants, another tract (designated as Lot #1) was sold without reference to the restrictive covenants in the Warranty Deed. See Exhs. O,P. Because the site was conveyed from the common developer to a purchaser without the imposition of restrictive covenants on that site, and after the restrictive covenants were recorded, clearly there was no intent to create a common scheme of development. The most critical and compelling evidence that there was no common scheme of development is from once the developers themselves – the focus of the question of intent and the only person whose intent is relevant,
Mildred Pitts had an opportunity to reflect her husband‘s intent to impose a common scheme of development by inserting it into the deed upon the resale of Lot 12 in 1989, even if they inadvertently failed to include them in the other four lots already conveyed. Pitts, as one of the the original developers, did not do this and, in fact, re-conveyed Lot 12 without the restrictions seventeen years after the restrictions had been recorded. There is not any stronger evidence of a person‘s intent (in this case Richard Pitt) than that same person‘s acts and deeds. Richard Pitts,
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the original developer, conveyed tracts within the alleged Mesa Vista Subdivision not once or twice but five different times. If any common scheme of development had been intended and implemented, certainly the developer would have conveyed them with the restrictive covenants.
However, the random and haphazard imposition of restrictive covenants shows, clearly, there was never a common scheme of development.
This haphazard imposition of the restrictive covenants at issue is further evidenced by the fact that property designated as Lot 1, one of the original five sold without restrictive covenants, was later conveyed in 2007 without imposition of the restrictive covenants at issue. See Exh. O.
Thus, even after Pitts recorded the restrictive covenants at issue, Lot 1 was originally conveyed without imposition the restrictive covenants at issue and also continued to be conveyed without imposition of or reference to the restrictive covenants.
2
This subsequent conveyance of another lot without imposition of the restrictive covenants at issue shows a lack of uniformity and a lack of acceptance and reliance upon any common scheme of development. Further, after the first four conveyances by Pitts without restrictions and after the recordation of the restrictions, there are at least seven different occasions when tracts with Mesa Vista Subdivision were conveyed without reference to the restrictions. In fact, in this case, TCKF acquired the subject property in the same fashion as Intervenors acquired Lot 1, by conveyance from the original lot owner without imposition of the restrictive covenants at issue. And yet, the Lot 1 Intervenors (who do not currently own the property) argue the restrictive covenants burden TCKF‘s land, and they seek to impose the restrictive covenants on TCKF‘s land.
2
Curiously, one of the Intervenors in this action were the original purchasers of Lot #1 from Pitts and acquired the property without restrictive covenants, even after such were recorded. These Intervenors then conveyed the property to another without the restrictive covenants. Thus, these Intervenors, while they still occupy the property, are not currently owners, and thus, have no standing to bring this action.
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Richard Pitts‘ tardy imposition of restrictive covenants, at best, shows a uniformity within the context of those seven burdened lots, only; however, the subject property is not a part of that subset. As stated in Keith , this lack of absolute uniformity is not determinative of the lack of a scheme or plan for improvement, if the general plan has been maintained from its inception.
Keith , 335 S.W.2d at 868. However, as in Keith , in this case, Pitts did not impose a common scheme of development from the inception of the platting and selling of lots because he sold four lots without restrictive covenants before he even recorded the restrictive covenants at issue and one lot without restrictive covenants after the recording. Further, even after the recording of the restrictive covenants at issue, a common scheme has not been maintained because Lot 1 was subsequently conveyed without imposition of any restrictive covenants, as was the subject property.
Finally, Intervenors may only argue that lack of uniformity is not be determinative of a lack of scheme only if the general plan is understood and relied on by all parties concerned. See
Keith, 335 S.W.2d at 86; Evans , 796 S.W.2d at 46. In this case, the summary judgment evidence shows a common scheme was not understood and relied on by all parties concerned. Thus, lack of uniformity is determinative of lack of a common scheme of development. See id
. As TCKF‘s summary judgment evidence shows, its predecessors in interest did not rely upon a common scheme of development when they purchased the subject property because they specifically intended to acquire the property without restrictive covenants and intended to pass it on without restrictive covenants. See Exhs. E,G,I. The property surrounding the subject property does not show or bear indications of a common scheme of development. Further, the summary judgment evidence shows the current owners of property designated as Lot #1, and Intervenors in this action, did not rely or understand there was a common scheme of development because they
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acquired their property without the restrictive covenants at issue, even after the restrictive covenant were recorded. These Intervenors even conveyed Lot #1 without the imposition of the restrictive covenant at issue.
Based upon the summary judgment evidence provided, the haphazard imposition of restrictive covenant on random lots, the lack of uniformity of restrictive covenants in all lots concerned and the lack of understanding and reliance by all parties concerned shows a lack of common scheme of development as a matter of law. This lack of uniformity precludes
Intervenors‘ requested summary judgment declaration that any restrictive covenants should be enforced against TCKF as an equitable servitude. At the very least, numerous fact issues raise a genuine issue of material fact whether there is sufficient uniformity to make such a determination that a common scheme of development was imposed. b.
Subjective Elements Of A Common Scheme Of Development
In addition to a showing of uniformity, a common scheme may be implied through other evidence, such as a properly filed and recorded plat, parol representations of the initial developer or oral statements on which the purchaser of the property in question relied when making his purchase. Lehmann , 510 S.W.2d at 680.; Selected Lands , 702 S.W.2d at 199-200; Doll v. Hurst ,
2003 WL 21939711 (Tex.App.-Austin 2003, writ denied). However, none of these subjective elements are present in this case, and in fact, numerous subjective elements show a lack of common scheme of development. i) No Subjective Elements Showing A Common Scheme of
Development
In this case, there exists no evidence of a properly filed and recorded plat sufficient to establish notice, no evidence of parol representations of Richard Pitts of his intent to form a common scheme of development or to impose and enforce uniform restrictive covenants, nor is
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there any evidence with regard to reliance on any statements by Richard Pitts with regard to a common scheme of development or any maintenance or acceptance of a common scheme. Thus,
Intervenors present no evidence of subjective elements to support their position they are entitled to declarative summary judgment as a matter of law holding and restrictive covenants should be enforced against TCKF as an equitable servitude. To the contrary, the summary judgment evidence presented shows subjective elements to support a finding there was not a common scheme of development. ii) Subjective Elements Show No Common Scheme of
Development
Under these facts, review of all relevant subjective elements shows there is no common scheme of development. First, Richard Pitts did not sell the parcels of land under a common scheme of development because he sold four lots prior to even attempting to impose restrictive covenants on any other lots and prior to attempting to file and record a plat. See Exhs. A,
L,M,N. After the first lots were sold without restrictions and after the restrictive covenants were recorded, there were at least seven different conveyances and various lots were conveyed to other purchasers without reference or mention of the subject restrictive covenants. See Exh. O.
Finally, Pitts‘ lackluster and tardy effort to properly file and record the restrictive covenants after conveying some tracts shows a lack of intent to impose a common scheme of development.
Although all the information necessary to do so was readily available to Pitts, he also failed to properly insert a legally sufficient property description in the restrictive covenants even upon their recordation. Pitts obviously had a legal description of all the tracts since he used them on the first four conveyances. Nonetheless, Pitts did not bother to attach any metes and bounds description to the restrictive covenants further showing that he did not intend to create or impose a common scheme of development. If Mildred and Richard Pitts intended to create a common
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scheme of development Mildred would have had the chance to act upon that intent by including or referencing the deed restrictions in the conveyance of Lot 12, even after Richard failed to include them in the first four conveyances. Given the acts and omissions of Richard and Mildred
Pitts, the only reasonable inference as to their intent was to sell lots and realize profits therefrom as quickly as possible even it if meant doing so without restrictive covenants. Also, given the acts of Pitts, another reasonable inference is that the potential purchaser of the fifth lot (i.e., the first one in which restrictions were included) may have actually requested Pitts to do so as a condition of such purchase. In other words, Pitts did not reflect a general intent to impose a common scheme of development, but was simply reacting to the request of a particular purchaser in order to sell a lot.
To make this showing of subjective elements showing no common scheme of development, TCKF presents the affidavit of Lee Voelkel, a registered, professional Land
Surveyor in the State of Texas and Kerr County Surveyor. In his affidavit, Lee Voelkel attests
Richard Pitts did not follow proper procedure to file or record a plat of the Mesa Vista subdivision. See Exh. K. Specifically, pursuant to Kerr County Commissioner‘s Court Order
No. 9144, the plat of the Mesa Vista subdivision was not signed nor verified by Richard Pitts.
See id.
and exhibits attached thereto. The plat was never presented to nor approved by the Kerr
County Commissioners' Court. Id . Due to these deficiencies, this summary judgment evidence shows there was never a properly filed and recorded plat of a Mesa Vista subdivision, and for this reason, there could never have been any common scheme of development of any Mesa Vista subdivision.
3
The fact that Pitts did not get the proper approval for recordation of a plat of the subdivision shows he did not have true intent to impose a common scheme of development.
3
T o alleviate this confusion and fraud committed, today, it is now a Class C misdemeanor to impose a restriction on an unrecorded plat. See Tx. Prop. Code § 12.002.
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Finally, the fact that he did not sign and verify the proposed plat shows lack of intent and followthrough.
In his affidavit, Lee Voelkel also attests Richard Pitts failed to record legally sufficient restrictive covenants. Exh. K. The restrictive covenants document at issue filed by Pitts on
September 28, 1972 did not identify the affected property by metes and bounds or, otherwise by another form of identifying document, such as a recorded plat. See id . Because the restrictive covenants do not adequately describe the applicable burdened land, they cannot operate as a showing of a common scheme of development.
Additional subjective elements of lack of a common scheme of development include the fact that the landowners did not act or operate as if a subdivision existed with common restrictions, in that, there was never a Homeowner‘s Association or other typical enforcement agency; substantial violations of the restrictive covenants at issue showing a lack of intent to maintain the restrictions and common scheme and a lack of the acquiescence or acknowledgement in the restrictions existence or validity, and there were few, if any, actions to enforce the restrictive covenants. The original developer, Pitts, had an opportunity to insert them in a deed once they were recorded and did not and when of the Intervenors failed to include them in the deed once they were recorded.
These elements, alone, and in conjunction with the other facts stated, show there was no common scheme of development: (i) the failure to impress consistent restrictive covenants upon all 12 sites from the sale of the first site; (ii) the failure to file or record an official plat of the proposed subdivision of lots before attempting to convey any of them; (iii) the failure to properly file and record a plat of the proposed subdivision prior to having any restrictive covenants filed and recorded; (iv) the failure to properly file and record the restrictive covenants
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at issue before conveying the first four lots; (v) the failure to adequately and legally describe the property in the restrictive covenants themselves when Pitts had both the means and opportunity to do so (i.e., the property descriptions were readily available) and (vi) the failure to include any mention, reference, affidavit, representation or any other mention the first five deeds that restrictive covenants would be subsequently filed; and (vii) the failure of Mildred Pitts to include them herself in the conveyance of Lot 12 seventeen years after the restrictive covenants were recorded. At the very least, these elements, alone and in conjunction, raise a genuine issue of material fact on the issue whether Richard Pitts sought to impose a common scheme of development, or whether a common scheme of development was consistently maintained, accepted and relied upon, and thus, whether the restrictive covenants at issue may be enforced against TCKF under the doctrine of equitable servitude.
2.
Notice Of a Common Scheme of Development
As stated previously, to impose any restrictive covenant as an equitable servitude,
Intervenors must show TCKF bought the land without actual or constructive knowledge of the scheme of development and that the covenants were part of the subject matter of its purchase.
See Nelson , 663 S.W.2d at 84-85 (quoting Curlee v. Walker , 244 S.W. 497, 498 (Tex. 1922 and
Hooper v. Lottman , 171 S.W. 270 (Tex.Civ.App. – El Paso 1914, no writ)); see also Lehmann ,
510 S.W.2d at 680. As discussed below, Intervenors cannot make this showing, and in any event, numerous issues of fact exist that preclude summary judgment. a.
Distinguish “Notice” Within Context of Equitable Servitude From
“Notice” Within Context of “Runs With The Land”
To begin, Intervenors confuse the issue of ―notice‖ within the context of determination whether a restrictive covenant runs with the land and the issue of ―notice‖ within the context of determination whether the doctrine of equitable servitude applies to impose restrictive covenants.
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With regard to the ―runs with the land‖ determination, a landowner seeking to enforce a covenant must show another landowner took his property with notice of restrictive covenants in his chain of title. Smith v. Bowers , 463 S.W.2d 222, 225-226 (Tex.Civ.App. – Waco 1970, no writ). In such context, a landowner is charged with notice of the existence of covenants and the contents of all instruments contained in his chain of title. Id . On the other hand, within the context of determination whether the doctrine of equitable servitude applies, a landowner seeking to enforce a restrictive covenant must, first, show a common scheme was maintained, understood, accepted and relied upon by all the parties affected. Only if the enforcing landowner makes this prerequisite showing will the issue of notice arise. If such prerequisite is satisfied, the landowner may enforce a restrictive covenant if it shows the purchaser bought his land with notice of the common scheme of development and the restrictive covenants ―were part of the subject matter of his purchase.‖ See Nelson , 663 S.W.2d at 84-85; Lehmann , 510 S.W.2d at 680; Commissioners
Court v. Albin , 992 S.W.2d at 605; Evans v. Pollock , 796 S.W.2d at 466; see also Selected
Lands , 702 S.W.2d at 199. The intent relevant to create a common scheme of development is established at the inception of the alleged subdivision by the original developer and not the intent of subsequent grantees in the chain of title of any lot from that alleged subdivision. If that was not the case, then the substance, content, scope and validity of restrictive covenants would change every time a lot was sold in a proposed subdivision depending upon the specific subjective intent of the party selling such lot. Obviously this is not the requirements of the elements of equitable servitude to hold otherwise would create uncertainty in Texas land titles and would totally undermine the rationale and basis of both the bona fide purchaser doctrine and the Statue of Frauds, both of which are stalwarts of Texas law.
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In their Motion for Summary Judgment, Intervenors attempt to impose the notice requirement applicable to the ―runs with the land‖ determination to that required to show notice within the context of determination whether the doctrine of equitable servitude should apply.
This is evidenced by the cases cited within the Intervenors‘ brief and the arguments made.
Intervenors begin by quoting the case
Musgrave v. Brookhaven Lake Prop. Owners Ass’n
, 990
S.W.2d 386, 396 (Tex.App.-Texarkana 1999, writ denied), stating, ―A person who takes title to land with actual or constructive notice of a restriction will not be permitted to violate the restriction.‖
See Intervenors Motion for Summary Judgment, p. 8. Intervenors also cite the case
Smith v. Bowers as support for their argument that ―a purchaser may be charged with notice [of restrictive covenants] if it is contained in the chain of title. Smith , 463 S.W.2d at 225-226. Both
Musgrave and Smith are cases that address the issue whether restrictive covenants run with the land and, in that context, address the issue of whether the purchaser had actual or constructive notice of the restrictive covenants in their chain of title to determine if the covenants run with the land. In both of these cases the encumbrance or restrictive covenant was recorded somewhere in the purchaser‘s chain of title and involved the determination of whether or not a subsequent grantee had ―constructive notice‖ of a covenant that was intended to run with the land. Because these cases are ―run with the land‖ cases, the discussions of any notice element are inapposite to a discussion of the notice element within the context of the doctrine of equitable servitude. In this case, the deed to the original purchaser of TCKF‘s tract did not contain restrictions . and such original purchaser was a bona fide purchaser. Put another way, the restrictive covenants were not originally in TCKF‘s chain of title and are considered a ―stranger‖ to title. As further stated and argued, notice to TCKF is irrelevant since they succeeded to the bona fide purchaser rights of Willems, but for argument sake only, under the doctrine of equitable servitude, the
154562.1 v. 5 Page 35

proper question would be whether TCKF had notice of a common scheme of development and not solely notice of the restrictive covenants. The determination of that issue is irrelevant in this case because notice, actual or constructive, to TCKF is irrelevant under the bona fide purchaser/‖shelter rule‖ doctrine.
Intervenors assert the restrictive covenants at issue in this case are clearly within TCKF‘s chain of title, and therefore, TCKF had notice of them, and they should be enforced as an equitable servitude. However, Intervenors focus in on the wrong issue. As shown, to enforce the restrictive covenants at issue as an equitable servitude, Intervenors must show TCKF received title to the subject property with actual or constructive notice of a common scheme of development and not merely the restrictions themselves. As previously stated, there are no facts or circumstances which indicate a common scheme of development even existed for which they could be imputed notice. To the contrary, facts and circumstances that occurred prior to TCKF‘s taking title to the subject property could put a reasonable person on notice that there is no common scheme of development. Intervenors have failed to show TCKF took title to the subject property with actual or constructive notice of a common scheme of development, and thus, declaratory summary judgment that the restrictive covenants are valid and enforceable against
TCKF as an equitable servitude is improper without such a showing. b.
Intervenors Failed To Satisfy Prerequisite Showing Of
Maintenance, Acceptance and Reliance Upon A Common Scheme to Reach Issue Whether TCKF Had Notice of Common Scheme of
Development
As stated previously, within the context of determination whether the doctrine of equitable servitude applies, a landowner seeking to enforce a restrictive covenant must, first, show a common scheme was maintained, understood, accepted by all affected and relied upon.
Only if the enforcing landowner makes this prerequisite showing will the issue of notice arise. If
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such prerequisite is satisfied, the landowner may enforce a restrictive covenant if it, then, shows the purchaser bought his land with notice of the common scheme of development and the restrictive covenants were a subject matter of his purchase. See Selected Lands , 702 S.W.2d at
199; Nelson , 663 S.W.2d at 84-85; Lehmann , 510 S.W.2d at 680; Monk , 110 S.W.2d at 86.
Thus, even if, as Intervenors argue, TCKF did purchase the subject property with notice of the restrictive covenants, for this notice to support enforcement, Intervenors must, first, show the general plan was maintained, understood, accepted, relied upon and acted upon. They cannot do so under the facts in this case. Intervenors have failed to present any evidence to support this prerequisite showing, and therefore, the issue whether TCKF took the subject property with notice of a common scheme of development is not reached.
To make such a prerequisite showing, Intervenors must present evidence that a general plan is understood, accepted, relied upon and acted upon by all parties concerned. See Selected
Lands , 702 S.W.2d at 199; Keith, 335 S.W.2d at 86; Evans , 796 S.W.2d at 466. In this case, as discussed and shown previously, a common scheme was not understood and relied on by all parties concerned. As TCKF‘s summary judgment evidence shows, its predecessors in interest did not rely upon a common scheme of development when they purchased the subject property because they specifically intended to acquire the property without restrictive covenants and intended to pass it on without restrictive covenants. See Exhs. E,G,I,J. Further, the summary judgment evidence shows the current owners of property designated as Lot 1, and Intervenors in this action, did not rely or understand there was a common scheme of development because they acquired their property without the restrictive covenants at issue. See Exh. O. Further, the other landowners did not understand, accept, rely upon or act upon a common scheme of development
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because they also committed substantial violations of the restrictive covenants without objection or enforcement action by the other landowners. See Exh. K.
Based upon the summary judgment evidence provided, the lack of a showing of an understanding and reliance upon the restrictive covenants at issue by all parties concerned precludes inquiry into whether TCKF acquired its property with notice of a common scheme of development or of any binding restrictive covenants. This lack of such a prerequisite showing precludes Intervenors‘ requested summary judgment declaration that any restrictive covenants should be enforced against TCKF as an equitable servitude. At the very least numerous fact issues raise a genuine issue of material fact whether there is sufficient showing of a common scheme of development to make such a determination.
3.
Even if Intervenors Satisfied Prerequisites, TCKF Did Not Have
Notice of Common Scheme of Development
In any event, TCKF has presented undisputed summary judgment evidence sufficient to show it did not take the subject property with actual or constructive notice of a common scheme of development. In his affidavit, Max Greiner, President of the Board of Trustees of TCKF, attests he and TCKF was not aware of a common scheme of development within the lots surrounding the subject property. See Exh. J. In his affidavit, Max Greiner attests when he first found the property and when it was conveyed to TCKF, the surrounding area appeared to be a rural, secluded area, without indicators of any intent to be a residential neighborhood nor any indicators of a common scheme of development. Id . This affidavit is sufficient to raise a genuine issue of material fact on this issue whether TCKF acquired the subject property with notice of a common scheme of development. Thus, declaratory summary judgment that the restrictive covenants are valid and enforceable against TCKF as an equitable servitude is improper on this basis.
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4. To The Extent Intervenors Attempt To Assert The Doctrine Of
Implied Negative Easement Applies, This Doctrine Also Fails.
The doctrine of implied negative easement applies ―when an owner of real property subdivides it into lots and sells a substantial number of those lots with restrictive covenants designed to further the owner's general plan or scheme of development‖ for the benefit of himself and the purchasers of the lots. See Evans v. Pollock , 796 S.W.2d 465, 466 (Tex. 1990).
When a common developer inserts in the deeds of lots substantially uniform restrictions, conditions and covenants against the use of the property, the grantees acquire by implication an equitable right, commonly referred to as an implied negative reciprocal easement, ―to enforce similar restrictions against that part of the tract retained by the grantor or subsequently sold without the restrictions to a purchaser with actual or constructive notice of the restrictions and covenants.‖
Id .
As stated in the seminal case Evans v. Pollock , it is well established in Texas that, under the doctrine of implied negative easement, any grantees of property burdened with restrictive covenants may enforce, in equity, ―similar restrictions against that part of the tract retained by the grantor or subsequently sold without the restrictions to a purchaser with actual or constructive notice of the restrictions and covenants.‖
Evans , 796 S.W.2d at 466.
The doctrine cannot apply on its face because the common developer in this case sold the subject property to TCKF‘s predecessor before he ever filed, by invalid and voiding means, the restrictive covenants. In this case, it is undisputed that Richard Pitts, the common developer of the lots in question sold the subject property to TCKF‘s successor before he ever filed, recorded or imposed restrictive covenants on other lots in the development. Thus, TCKF‘s successor, the
Willems, initially took the subject property without any restrictive covenants and without any intention to impose restrictive covenants or even without any notice, actual or constructive, that
154562.1 v. 5 Page 39

the Pitts intended to impose restrictive covenants at a later date. In fact, prior to attempting to impose restrictive covenants, or around the same time as selling the subject property without any restrictive covenants, Pitts sold five lots without any restrictive covenants attached. Thus, five property owners in the development took possession without any restrictive covenants and can make any use of the property they desire.
Under these facts, the other property owners cannot enforce the restrictive covenants under the doctrine of implied negative reciprocal easement because the doctrine only allows enforcement of ―similar restrictions against that part of the tract retained by the grantor or subsequently sold without the restrictions to a purchaser with actual or constructive notice of the restrictions and covenants.‖ The subject property was not retained by Pitts, nor was it subsequently sold without restrictive covenants after the date Intervenors contends the covenant document was filed. The exact opposite occurs under these facts. The subject property was sold by Pitts prior to imposition or recording of any restrictive covenants. For this reason,
Intervenors cannot utilize the doctrine of implied negative reciprocal easement to enforce any restrictive covenants on the subject property.
C. INTERVENORS’ ARGUMENT THAT RESTRICTIVE COVENANTS ARE
VALID BASED UPON “ESTOPPEL BY DEED” MUST FAIL
Intervenors assert they are entitled to summary judgment as a matter of law based upon the doctrine of estoppel by deed, which they represent ―stands for the proposition that all parties in a deed are bound by the recitals in it, which operates as an estoppel, and binds the parties to the deed.‖ See Intervenors‘ 2 nd
Amended Petition, p.6. ―Estoppel by deed prevents a party from denying the truth of matters set forth in a deed the party has offered as grantor or has accepted as grantee.‖
Id
. at p. 9. Intervenors‘ arguments fail for several reasons: (1) First, application of the doctrine of estoppel by deed is inapposite under the facts in this case, and therefore, cannot be
154562.1 v. 5 Page 40

applied in support of Intervenors‘ Motion for Summary Judgment; (2) Second, even if applied, the Correction Deeds cure the intentions and conveyances of the predecessor grantors of the subject property, and thus, TCKF does not deny the truth of the matters set forth in the
Correction Deeds; and (3) Finally, as stated previously, the statute of frauds precludes any judgment as a matter of law.
1.
Doctrine Of Estoppel By Deed Does Not Apply Under These Facts
To begin, the doctrine of estoppel by deed has a long history in Texas, although the scope of its application has been inadvertently and improperly extended. Generally, the basic tenets of doctrine of estoppel by deed bar one party to a deed from asserting against the other party any right or title by derogation of the deed or from denying the truth of any material facts recited in it. See ; B
LACK
‘
S
L
AW
D
ICTIONARY
,
Abridged Sixth Edition, p. 287. ―Such estoppel precludes a party from denying a certain fact recited in deed executed or accepted by him in an action brought on the deed by party who would be detrimentally affected by such denial.‖ B LACK
‘
S
L
AW
D
ICTIONARY
, Abridged Sixth Edition, p. 287. Most importantly, the doctrine applies to and is limited to situations of transfer of title and specifically precludes one from disputing title. See
Houston First Am. Sav. v. Musick , 650 S.W.2d 764, 770 (Tex. 1983) (―[W]hen one conveys land by warranty of title, or in such a manner as to be estopped to dispute the title of his grantee, a title subsequently acquired to that land will pass eo instante to his warrantee, binding both the warrantor and his heirs and subsequent purchasers from either.‖); see also M. Benjamin Cowan ,
Venue for Offshore Environmental Crimes: The Seaward Limits of the Federal Judicial Districts,
49 Vand. L. Rev. 825, 856 n.165 (1996) ("Quitclaim deeds by definition contain no warranties of title, and as such are categorically excepted from the doctrine of estoppel by deed."); Lawrence
W. Waggoner, Reformulating the Structure of Estates: A Proposal for Legislative Action, 85
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Harv. L. Rev. 729, 745 n.52 (1972) ("[E]stoppel by deed is invoked in law when there is an attempted transfer by warranty deed."). As explained in Black‘s Law Dictionary, ―[a] grantor in a warranty deed who does not have title at the time of the conveyance but who subsequently acquires title is estopped from denying that he had title at the time of the transfer and such afteracquired title inures to the benefit of the grantee or his successors. B LACK
‘
S L AW D ICTIONARY ,
Abridged Sixth Edition, p. 383.
Thus, as shown, the doctrine of estoppel by deed does not apply under the facts in this case because the dispute in this case is not one of title. It is undisputed that the parties do not contest the validity of the Warranty Deed at issue nor any of the predecessor deeds. It is also undisputed that the parties do not contest TCKF‘s title to the subject property. Finally, the only dispute between the parties is whether the restrictive covenants in the Warranty Deed at issue are valid and enforceable against TCKF. However, the doctrine of estoppel by deed does not pertain to such disputes. Thus, the doctrine of estoppel by deed cannot support Intervenors‘ Motion for
Summary Judgment as a matter of law. a.
The Texas Supreme Court dispels Intervenors’ Interpretation of the Doctrine
In the most recent case to discuss the doctrine of estoppel by deed, Kerlin v. Sauceda ,
263 S.W.3d 920 (Tex. 2008), four justices wrote a concurring opinion specifically to, among other things, limit and reel in the dangerously expansive use of the doctrine of estoppel by deed, as Intervenors attempt to do in this case.
4
See Kerlin , 263 S.W.3d at 930-931. With regard to the doctrine of estoppel by deed, the concurring justices stated the underlying court of appeals erred
4
Specifically, the concurring justices stated, ―[b]ut the court of appeals' opinion also purports to say a lot about several other legal doctrines (there are 95 headnotes in the Southwestern Reporter), some of which we have not addressed in a very long time, and every one of which the court of appeals misapplied. If experienced judges can make such mistakes, others may follow and the jurisprudence of the state become disoriented. I would straighten a few of these out. Kerlin , 263 S.W.3d at 928-929.
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and misapplied the doctrine. The justices explained the limited circumstances under which the doctrine of estoppel by deed applies, stating,
[t]he courts below disregarded these facts based on an "estoppel by deed" -- that because Kerlin bought quitclaim deeds from the heirs and used them in the hope of gaining something thereby, he was estopped to claim that they conveyed him nothing. While we have not written much about estoppel by deed in a long time, the 2003 RESTATEMENT (THIRD) OF PROPERTY describes at least two reasons why estoppel by deed has nothing to do with this case:
Under the doctrine of estoppel by deed, a purported transfer of land that the transferor does not own becomes enforceable and takes place automatically if the land is later acquired, but only if the deed represents to the grantee that title of a specified quality is being conveyed, which most warranty deeds but few quitclaim deeds do.
This case does not involve after-acquired title, …. Even if [it did], the quitclaim deeds they gave Kerlin did not warrant title, so estoppel by deed could never apply.
Kerlin , 263 S.W.3d at 930. Thus, these justices cautioned that, though misinterpreted, the doctrine of estoppel by deed applies only between the grantor and grantee to a deed, and only as to after-acquired title disputes. Id. at 269.
In particular, the concurring justices cautioned against applying the doctrine of estoppel by deed as Intervenors propose under these facts, stating, that, in improper reliance ―on a court of civil appeals case from 1892, the court of appeals extended estoppel by deed to the much broader proposition that ‗all parties to a deed are bound by the recitals therein.‘‖ Kerlin , 263 S.W.3d at
931 (referencing and quoting Wallace v. Pruitt , 20 S.W. 728, 728-29 (Tex. Civ. App.--Corpus
Christi 1892, no writ)). In Intervenors‘ brief, they request this Court make this exact finding.
However, as cautioned and explained in Kerlin, this application and interpretation of the doctrine is improper and an unintended expansion of its parameters.
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Thus, as shown by leading caselaw, first, the doctrine of estoppel by deed does not apply under the facts in this case. Second, Intervenors‘ proposed understanding of the doctrine of estoppel by deed that ―all parties to a deed are bound by the recitals‖, is an improper and unintended extension of the doctrine. TCKF implores the Court follow the admonition of the concurring justices in Kerlin and avoid the error and misapplication of the doctrine of the underlying court in that case. See Kerlin , 263 S.W.3d at 928-929. As stated in Kerlin
, ―[i]f experienced judges can make such mistakes, others may follow and the jurisprudence of the state become disoriented.‖ Id.
Intervenors would like to lead this Court right into this improper extension and application of the doctrine of estoppel by deed that was dispelled and admonished in Kerlin . See Id. b.
Even if applied, Caselaw Limits Doctrine of Estoppel by Deed to the facts stated in the deed “recital”
Assuming without admitting the application of the doctrine of estoppel by deed to this case, Intervenors‘ proposed extension of the doctrine is improper for the additional reason that any estoppel by deed is limited to facts stated in a deed‘s ―recitals‖. Pursuant to case law referenced by Intervenors, other prevailing case law on the doctrine of estoppel by deed, and as stated by Intervenors in their Motion for Summary Judgment, ―‖[t]he doctrine of Estoppel by
Deed provides that all parties are bound by the recitals therein, which operates as an estoppel.‖
See Intervenors‘ Motion for Summary Judgment, p. 8 ( citing Freeman v. Stephens , 171 S.W.3d
651, 655 (Tex.App.-Corpus Christi 2005, writ denied). The Warranty Deed at issue in this case does not contain any such ―recital‖ for the doctrine of estoppel by deed to apply to or that TCKF could possibly be estopped from denying.
Application of the doctrine is specifically limited to the ―recital‖ of a deed. As explained in Angell , again, citing Freeman , the effect of the doctrine of estoppel by deed ―is to prevent a
154562.1 v. 5 Page 44

party to the deed from denying the truth of the recitals in a valid deed.‖
Angell v. Bailey, 225
S.W.3d 834, 842 (Tex. App.-El Paso 2007, no writ)(citing Freeman , 171 S.W.3d at 654). As it is used in a deed, the term ―recital‖ is a ―formal statement or setting forth of some matter of fact, in any deed or writing, in order to explain the reasons upon which the transaction is founded.
The recitals are situated in the premises of a deed, that is, in that part of a deed between the date and the habendum
, and they usually commence with the formal word ‗whereas‘‖. B
LACK
‘
S
L
AW
D
ICTIONARY
, Abridged Sixth Edition, p. 879. Utilizing this definition, Angell explains a
―recital‖ to be ―a formal statement in any deed or writing that is used to explain the reasons upon which the transaction is based. The recital of facts binds both the parties to the deed and their privies.‖
Angell , 225 S.W.3d at 842 (numerous supporting citations omitted); see also EMC
Mortg. Corp. v. Davis , 167 S.W.3d 406, 415 n.5 (Tex.App.-Austin 2005, writ denied); Patton
Children’s Trust v. Hamlin , 2008 Tex. App. Lexis 6396, at *13-*14 (Tex. App. –Amarillo 2008).
Because under the doctrine of estoppel by deed, ―the recital of facts binds the parties to the deed‖, to determine whether the doctrine should apply, the Court must ―ask whether the parties intended to bind themselves to the terms of the recital at issue.‖
Angell , 225 S.W.3d at 842;
Sauceda , 164 S.W.3d at 915.
Review of the Warranty Deed between Greater Horizons and TCKF in this case shows there is no ―recital‖ upon which to base application of the doctrine of estoppel by deed.
See Exh.
H. Even without a formal statement as described by Black‘s Law Dictionary, there is no formal or informal statement of facts which explains the reasons for the transaction. As an aside, if this
Warranty Deed did have a recital that stated the reasons upon which the transaction is based, it would state the transfer was made for the express purpose of the raising of this cross on the subject property. See affidavits, Exhs. E,G,I,J. As a matter of law, the restrictive covenants at
154562.1 v. 5 Page 45

issue are neither a statement of fact nor a recital explaining the reasons underlying the property‘s transfer. Patton Children’s Trust v. Hamlin , 2008 Tex. App. Lexis 6396, at *13-*14. Moreover, as in
Patton Children’s Trust
, given the affidavits of all the predecessor grantees attesting that the reasons for the property transfer was to facilitate the erection of the cross on the subject property, and that any creation of, imposition of, or reference to a restrictive covenant precluding this purpose was a mistake in drafting committed by a third party, the restrictive covenants are of questionable evidentiary value and certainly do not support summary judgment. Patton
Children’s Trust v. Hamlin
, 2008 Tex. App. Lexis 6396, at *13-*14.
Thus, because the doctrine of estoppel by deed binds only the parties to the statement of facts in the ―recitals‖ of a Warranty Deed, and this Warranty Deed does not contain such a recital, the doctrine of estoppel by deed cannot be applied as a matter of law. Thus, summary judgment based upon estoppel by deed is precluded because this doctrine does not apply under these facts. Further, given the presented affidavits of all predecessor grantees that the intent of the parties and the underlying facts and reasons for the transfer of property was for the express purpose of raising this cross on the subject property, there are sufficient genuine issues of material fact to preclude Intervenors‘ Motion for Summary Judgment.
Thus, in the context of Intervenors‘ Motion for Summary Judgment, Intervenors are not entitled to summary declaration that the restrictive covenants are valid and enforceable against
TCKF or that any restrictive covenants preclude the erection of a cross on the subject property, as a matter of law, pursuant to the doctrine of estoppel by deed. At the very least, issues of fact exist about its proper application and whether it was the intent of the parties to all predecessor deeds to erect a cross on the subject property. Thus sufficient genuine issues of material fact exist to preclude summary judgment under the estoppel by deed doctrine.
154562.1 v. 5 Page 46

2.
Correction Deeds Cure
Even if applied to these facts, the correction deeds and affidavits of predecessor grantors provide the only competent evidence of the intent of the grantors and grantees in their conveyances of the subject property.
The commanding force of the Correction Deeds and affidavits showing intent of the parties to the applicable deeds is set forth in a similar case in which third-party landowners sought declaration that a deed to the trust, purporting to transfer property adjoining the landowner‘s property, was invalid.
Patton Children's Trust v. Hamlin , 2008 Tex. App. LEXIS
6396, *2-*6 (Tex. App. Amarillo Aug. 20, 2008, no writ). As stated in
Patton Children’s Trust
,
―[t]he general rule in Texas is that recitals in a deed are binding only when the parties or their privies thereto claim under such deed.‖
Patton Children’s Trust
, 2008 Tex. App. Lexis, at *12
(citing Lambe v. Glasscock , 360 S.W.2d 169, 172-73 (Tex.Civ.App.-San Antonio 1962, writ ref'd n.r.e.)).
Patton Children’s Trust
relied upon the case Angell v. Bailey , a case cited by
Intervenors in support of their position, in its holding that ―[s]trangers to a deed, like the
Landowners here, have no right to establish title by recitals in such deed.‖
Patton Children’s
Trust , 2008 Tex. App. Lexis, at *12 (citing Angell , 225 S.W.3d at 840). More importantly,
Patton Children’s Trust held that, while a deed may provide evidence of the recited fact at issue, it is not ―competent evidence of the recited fact as between a party to the deed and a stranger‖.
Patton Children’s Trust
, 2008 Tex. App. Lexis, at *12; see also 30 Tex.Jur.3d Deeds § 135
(1998). ―In making a determination whether estoppel [by deed] should apply, the court must
‗focus on the intention of the parties to the instrument and ask whether the parties intended to bind themselves to the terms of the recital at issue.‘‖ Patton Children’s Trust , 2008 Tex. App.
Lexis, at *12 (quoting Angell , 225 S.W.3d at 842).
154562.1 v. 5 Page 47

Applying these rules of law, the Court in
Patton Children’s Trust
, held the third-party landowners ―were neither parties nor privies to the deed‖, and therefore, could not utilize the deed itself as evidence of the intent of the parties to the deed.
Patton Children’s Trust
, 2008
Tex. App. Lexis, at *12-*13, n.4. The only evidence of the intent of the parties to the deed was an affidavit of one the parties, stating the parties did not intend to be bound by the reference in the deed at issue . Based upon the directive in Angell that it must ―focus on the intention of the parties to the instrument and ask whether the parties intended to bind themselves to the terms of the recital at issue‖ and upon the affidavit of a party to the deed, the Court found the parties did not intend to be bound to the reference in dispute.
Patton Children’s Trust
, 2008 Tex. App.
Lexis, at *12-*13, n.4.
Patton Children’s Trust
speaks directly to the facts in this case and supplies solid guidance for this Court‘s determination of the intent of the parties to the predecessor deeds and the deed at issue in this case under the doctrine of estoppel by deed. As in
Patton Children’s
Trust , third party landowners seek to utilize language appearing in the deed at issue as proof of the intent of the parties and as evidence of their rights under the deed. However, as in Patton
Children’s Trust
, these third-party landowners ―were neither parties nor privies to the deed‖, and therefore, may not utilize the deed itself as evidence of the intent of the parties to the deed. See
Patton Children’s Trust
, 2008 Tex. App. Lexis, at *12-*13, n.4. As in Patton Children’s Trust , the only evidence of the intent of the parties to the deed are affidavits of every one of the predecessor grantees of the property to TCKF. Each one of these predecessor grantees attests the property was originally acquired without any burden of restrictive covenants and they did not intend to impose nor pass any burden of restrictive covenants to TCKF. In fact, the predecessor grantees attest to the exact opposite: they intended to take and transfer the subject property as it
154562.1 v. 5 Page 48

originated, without any restrictive covenants. Application of the directive in Angell that the
Court must ―focus on the intention of the parties to the instrument and ask whether the parties intended to bind themselves to the terms of the recital at issue‖ and upon these affidavit of all predecessor grantees, the Court must find the parties to all predecessor deeds and to the deed in question did not intend to create, impose, nor transfer any burden of restrictive covenants.
Patton Children’s Trust
, 2008 Tex. App. Lexis, at *12-*13, n.4.
Thus, as shown by TCKF‘s undisputed summary judgment evidence as a matter of law, under the doctrine of estoppel by deed, TCKF is entitled to declaration that it was the intention of the parties to the deed that the subject property pass with no restrictive covenants and that a cross be erected on that site. However, in the context of Intervenors‘ Motion for Summary Judgment,
Intervenors are not entitled to summary declaration that the restrictive covenants are valid and enforceable against TCKF or that any restrictive covenants preclude the erection of a cross on the subject property, as a matter of law. At the very least, the affidavits of all predecessor grantees of the subject property are sufficient to raise a fact issue of the intent of the parties to preclude summary judgment under the estoppel by deed doctrine.
D. EVEN IF THE RESTRICTIONS WERE FOUND TO BE VALID, TCKF’S
ANTICIPATED USE DOES NOT VIOLATE THE RESTRICTION
PROHIBITING “BUSINESS OR COMMERCIAL USE”
Assuming without deciding that the restrictive covenants at issue are valid and enforceable against TCKF, TCKF‘s erection of a cross on a vacant lot does not violate the restriction precluding the property‘s use for ―business or commercial purpose.‖
To begin, Intervenors, again, incorrectly frame the issue of this case, stating, ―[t]his case involves restrictions that limit the use of the properties at issue to residential purposes‖ and that
―the construction of a seventy foot cross is obviously in violation of restrictions requiring a
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subdivision for residential purposes.‖ Intervenors‘ Motion for Summary Judgment, p. 9.
However, the specific restrictive covenant at issue states, ―MESA VISTA SUB-DIVISION is intended as a residential sub-division. No site or any part of a numbered site shall be used for business or commercial purpose.‖ Exh. B. This covenant is not one that affirmatively ―limit[s] the use of the properties at issue to residential purpose,‖ as Intervenors propose, because it merely states the subdivision is ―intended as a residential subdivision.‖
5
This is insufficient to establish an affirmative restriction of use solely to residential purposes.
At best, the covenant at issue only restricts against use ―for business or commercial purpose‖. Thus, based upon the face of the restrictive covenant document at issue and the particular language chosen, this case cannot involve restrictions requiring or limiting use to
―residential purposes‖, as Intervenors assert. The central issue then becomes whether the erection of a cross on a vacant lot constitutes ―business or commercial purpose‖. Intervenors have chosen to distract this court‘s focus by asking it to determine whether the erection of a cross is a residential use. Because the restrictive covenant at issue only precludes ―business or commercial purpose‖, the central issue in this case is limited to determination whether the raising of a cross on a vacant lot is a ―business or commercial purpose.‖
To determine the scope of the restrictive covenant at issue, the court must begin, again, with the rules of construction. In such construction, the court must look to the intent of the framer of the restrictive covenant. To determine this intent, the court must liberally construe the covenant‘s language and must ensure every provision is given effect.
Munson v. Milton , 948
5
The case Intervenors cite for support of their description of this case involved an affirmative restrictive covenant that precluded any use other than ―residence purposes‖, in particular, ―[t]he deed from Enfield Realty imposed a restriction against use of the property in question for purposes other than "residence purposes." The restrictions stated in the deeds conveying the numbered lots in Mira Loma prohibited the construction of improvements except
"for residence purposes, or for use in connection with residences.‖ MacDonald v. Painter , 441 S.W.2d 179, 182
(Tex. 1969). These covenants are drastically different than the one at issue in this case.
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S.W.2d 813, 816 (Tex.App. - San Antonio 1997, writ denied). In construing a restrictive covenant, a court is prohibited from ―enlarging, extending, stretching or changing‖ the words of a covenant through judicial construction.‖
See Wilmoth v. Wilcox , 734 S.W.2d 656, 657-658
(Tex. 1987). If there is ambiguity or doubt as to the intent, the covenant is to be strictly construed against the party seeking to enforce it in favor of the free and unrestricted use of the premises. Munson , 948 S.W.2d at 816.
Using this guidance as a framework for interpretation of the restrictive covenant at issue, the statement ―MESA VISTA SUB-DIVISION is intended as a residential sub-division‖, is merely a statement of intent, not imposition of restriction on use. If the framer had intended to limit use to ―residential purpose‖ the statement would read like any other restrictive covenant and like the following statement restricting ―business or commercial‖ use, that is, it would have been framed as an affirmative statement of restriction to ―residential only‖ use. Instead, however, the statement is merely framed as an expression of intent, not restriction. This is a significant distinction. Therefore, the statement must be construed as an intention to not restrict land use to ―residential only‖ use. Further, the statement of intent at least raises an ambiguity as to the scope of the restrictive covenant, and this Court must, thus, construe it against Intervenors and in favor of TCKF‘s free and unrestricted use of the premises. Munson v. Milton , 948 S.W.2d at 816; Wilmoth , 734 S.W.2d at 657-658. To do otherwise would violate not only the rules of strict construction, but also the rule prohibiting a court from ―enlarging, extending, stretching or changing‖ the words of a covenant through judicial construction.‖
See Wilmoth , 734, S.W.2d at
657-658.
Next, the term ―business and commercial purpose‖ must be given its common and ordinary meaning. Black‘s Law Dictionary defines ―business purpose‖ as ―[a] justifiable
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business reason for carrying out a transaction.‖ B
LACK
‘
S L AW D ICTIONARY , Abridged Sixth
Edition, p. 137. Black‘s Law Dictionary further defines ―business‖ in economic terms as
―[a]ctivity or enterprise for gain, benefit, advantage or livelihood‖ and as ―[t]hat which habitually busies or occupies or engages the time, attention, labor, and effort of persons as a principal serious concern or interest or for livelihood for profit.‖
Id . at p. 136. Finally Black‘s
Law Dictionary defines ―commercial activity‖ as ―any type of business or activity which is carried on for a profit‖ or ―activity relating to or connected with trade and traffic or commerce in general. Id . at p. 184. Black‘s Law Dictionary defines ―commercial use‖ as ―use in connection with or for furtherance of a profit-making enterprise.‖ Id . at p. 186.
While case law is scant on providing an exact definition or interpretation of the term
―business or commercial purpose‖, it does provide parameters from which this Court may determine the meaning of this phrase. Similar to that in Black‘s Law Dictionary, a court has defined ―business‖ as ―any particular employment, occupation, or profession followed as a means of livelihood; in this sense, the word has been defined in general as meaning calling, employment, trade or avocation.‖
Connor v. City of University Park , 142 S.W. 2d 706, 715
(Tex. Civ. App. – Dallas 1940, writ ref‘d). Parameters are provided through other cases with restrictive covenants which restrict use to ―residential only‖ have found ―business‖ or
―commercial‖ use constitutes operation of a beauty parlor in the attached garage, a child care facility, a retail florist shop, an animal clinic and a bed and breakfast. See e.g. Munson , 948
S.W.2d at 819; Mills v. Kubena , 685 S.W.2d 395 (Tex.App.--Houston [1st Dist.] 1985, writ ref'd n.r.e.); Fowler v. Brown , 535 S.W.2d 46 (Tex.Civ.App.--Waco 1976, no writ); Vaccaro v.
Rougeou , 397 S.W.2d 501 (Tex.Civ.App.--Houston 1965, writ ref'd n.r.e.); Brite v. Gray , 377
S.W.2d 223 (Tex.Civ.App.--Beaumont 1964, no writ).
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Given this guidance and parameters, it is clear TCKF‘s plan to raise a cross on a vacant lot does not constitute ―business or commercial purpose‖. Using the common and ordinary meaning of the terms, TCKF has no business reason for erecting the cross, nor does it seek profit or financial gain. The simple and quiet stance of a cross on a hill does not constitute an activity nor enterprise for economic gain or in pursuit of a livelihood, nor is it an ―activity in furtherance of a profit-making enterprise.‖ Id.
at p. 186. Clearly, TCKF‘s intention to place a cross on its vacant lot is not a business or commercial activity. Such endeavor does not fall within the parameters given of what constitutes business or commercial activity, such as, operation of a beauty parlor in the attached garage, a child care facility, a retail florist shop, an animal clinic or a bed and breakfast.
Aside from the fact that TCKF‘s plan does not meet the definition of a ―business or commercial purpose‖, TCKF is precluded by law from engaging in any such business or commercial activity or from making a profit on any of its activities. As shown by the affidavits of its President, Max Greiner, TCKF is a non-profit organization formed under and within the meaning of Section 501(c)(3) of the Internal Revenue Code. Exh. J. As such, while TCKF may participate in or conduct activity in commerce, it may not conduct any activity for a profit, thus removing it from any potential ―business or commercial purpose‖. The restrictive covenants at issue prohibit use of the subject property for a ―business or commercial purpose‖ but does not preclude any connection to an activity that might be considered to be a non-profit business activity. In any event, TCKF intends only to place a cross on the site. This, in and of itself, is not a ―business or commercial purpose‖.
For these reasons, as a matter of law, TCKF is entitled to declaration that the erection of a cross on its vacant lot does not constitute a ―business or commercial purpose‖. Intervenors are
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not entitled to summary declaration that the erection of a cross is violative of any restrictive covenant which would preclude a ―business or commercial purpose‖, as a matter of law. At the very least, there are genuine issues of material fact which preclude declaratory summary judgment that TCKF intends to violate any restrictive covenant prohibiting use of the subject property for business or commercial purpose.
E. EVEN IF THE RESTRICTIONS WERE FOUND TO BE VALID, THEY HAVE
BEEN ABANDONED, OR INTERVENORS WAIVED ANY RIGHT TO
ENFORCE THEM
Assuming without deciding that the restrictive covenants at issue are valid and enforceable against TCKF, Intervenors have waived the entire set of restrictive covenants by failing to enforce the restrictive covenants against numerous violations by other property owners whose land is burdened with the same set of restrictions.
The Supreme Court of Texas declared over fifty years ago in Cowling v. Colligan that a court may refuse to enforce a restrictive covenant ―because of the acquiescence of the lot owners in such substantial violations within the restricted area as to amount to an abandonment of the covenant or a waiver of the right to enforce it.‖ Cowling v. Colligan , 312 S.W.2d 943, 945 (Tex.
1958); see Musgrove v. Westridge St. Partners I, LLC , 2009 Tex. App. Lexis 2660, at *7-*8
&n.12 (Tex.App.-Ft. Worth 2009, writ denied).
6
Following Cowling , the Texas Supreme Court established the following test for determination whether property owners have waived or abandoned restrictive covenants: ―to support waiver of residential restrictions the proposed use must not be substantially different in its effect on the neighborhood from any other violation. To put it another way, the prior violation which has been carried on without objection, if
6
In interpreting this rule in the context of restrictive covenant, cases subsequent to Cowling hold the concepts of abandonment and waiver go hand in hand--a finding that a restriction has been abandoned is essentially the same, and must have the same evidentiary support, as a finding that the right to enforce the covenant has been waived. See
Musgrove , 2009 Tex. App. Lexis 2660, at *7-*8 & n.12 (numerous supporting citations omitted).
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insignificant or insubstantial when compared to the proposed or new use, will not support a waiver of the new and greater violation.‖ Sharpstown Civic Ass’n, Inc. v. Pickett , 679 S.W.2d
956, 958 (Tex. 1984). Thus, to establish abandonment or waiver, the defendant must show the previous violations ―are so great as to lead the mind of the average man to reasonably conclude that the restriction in question has been abandoned.‖ Musgrove, 2009 Tex. App. Lexis 2660,
*10-*12; Tanglewood Homes Ass'n, Inc. v. Henke , 728 S.W.2d 39, 43 (Tex. App.--Houston [1st
Dist.] 1987, writ ref'd n.r.e.) (abandonment); see also Hicks , 714 S.W.2d at 35 (identical test for establishing waiver). While waiver normally is considered a question of fact, the question becomes one of law only if the facts and circumstances are admitted or clearly established.
Caldwell v. Callender Lake Property Owners Improvement Ass'n , 888 S.W.2d 903, 910 (Tex.
App.-Texarkana 1994, writ denied); Shaw Equip. Co. v. Hoople Jordan Constr. Co ., 428 S.W.2d
835, 840 (Tex. Civ. App.-Dallas 1968, no writ).
In its determination whether a restrictive covenant has been abandoned or waived, a court should consider subjective factors such as, ―the number, nature, and severity of the then[-
]existing violation[s], any prior acts of enforcement of the restriction, and whether it is still possible to realize to a substantial degree the benefits intended through the covenant.‖ Musgrove,
2009 Tex. App. Lexis 2660, at *10-*12; Tanglewood, 728 S.W.2d at 43-44 (internal quotation omitted); see also Pebble Beach , 2 S.W.3d at 289-90; Hicks , 714 S.W.2d at 35. In its analysis and consideration of these factors, a court should not limit its focus to the actions, inactions, or subjective intent of any one party affected by the restrictions. Rather, the court should consider the equities of the entire situation, including but not limited to the nature and severity of past violations relative to the restriction sought to be enforced, the extent to which the person attempting to enforce the restriction relied on the restriction in purchasing the property, and the
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number of properties subject to the restriction relative to the number of violations. Musgrove ,
2009 Tex. App. LEXIS 2660, at *10-*12 (numerous supporting citations omitted); See
Tanglewood , 728 S.W.2d at 44 (holding that evidence of fifteen violations of set-back restriction for garages and carports out of fifty-six total properties subject to set-back restriction is sufficient to support jury finding of abandonment of that restriction.)
While this line of case law and these factors apply to determination whether a particular common restrictive covenant has been waived or abandoned, these rules also apply to determination whether an entire set of restrictive covenants have been abandoned. See
Musgrove
, 2009 Tex.App. Lexis 2660, at * 16. In particular, the court must look to whether ―the violations are so pervasive that they have ‗destroyed the fundamental character of the neighborhood.‘‖
Id.
( citing Burke v. Voicestream Wireless Corp. II , 87 P.3d 81 (Ariz. Ct. App.
2004).
As TCKF‘s summary judgment evidence, consisting of affidavits from Lee Voelkel, Max
Greiner and photographs, shows there are a significant number of substantial violations of the set of restrictive covenants at issue. See Exhs. J,K. These substantial violations of the subject restrictive covenants on other lots on Mesa Vista Lane constitute an abandonment of the set of restrictive covenants at issue and a waiver of the right to enforce them. These substantial violations are detailed below:
2.
Specific Violations a.
Setback Violations:
The set of restrictive covenants at issue state: (1) ―[d]wellings shall not be constructed closer than forty (40) feet from a street or roadway and the side line clearance must be a minimum of forty (40) feet. Exh. B. par. III.
Numerous properties violate this setback provision. Specifically, the current violations are as follows:
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i) Lot #1: Thomas – Dwelling sits within 40 feet of the North West property boundary ii) Lot #3a (Easterly 1.63 acres) : Guthrie – Dwelling sits within 40 feet of the improperly subdivided lot property boundary. iii) Lot #8: Causey – Guest house sits within 40 feet of the North West property boundary iv) Lot #12: Clark – Dwelling sits within 40 feet of the roadway and the front and side property boundaries. b.
Easement Violation:
The set of restrictive covenants at issue state: ―[i]n addition to this utility easement, the developer also grants an easement of thirty (30) foot frontage on each site for the purpose of entrance and exit VIA roadway (street) to and from sites affected.‖ Exh. B. par. III. i) Lot #12: Clark – Property violates the county road right-of-way by illegally capturing public property with the front fence. The violation is so severe that fire trucks and school buses cannot turn around in the cul-de-sac. c.
Dwelling Size Violation:
The set of restrictive covenants at issue state: ―[d]wellings constructed on said subdivision will contain not less than fifteen hundred (1500) square feet of floor space excluding garage and porches (patio)….‖ Exh. B, par. II. i) Lot # 8: Causey – Guest house in rear of lot does not meet minimum square footage d.
Property Boundary Violations : e.
i) Lot #12: Clark – On the north side, the owners fenced in part of property designated as Lot #10, which they do not own. On the south side, a small portion of the paved concrete driveway is actually on the subject property owned by TCKF.
Improper Subdivision of Lot:
Kerr County Subdivision Rules and Regulations require land that is to be sub-divided into 2 or more lots must be platted and approved by the Kerr County Commissioner‘s Court.
Exh. K, and exhibits attached thereto.
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i) Lot # 3: Leinweber (Westerly 1.72 acres)/ Guthrie (Easterly 1.63 acres) –
Leinweber subdivided Lot #3 into two lots without following the proper procedure by platting the property and getting the approval of the Kerr
County Commissioner‘s Court. Leinweber sold the subdivided property to
Guthrie.
Diminishment of Neighborhood: f.
Other subjective factors, while not violative of a specific restrictive covenant, indicate the restrictive covenants do not operate to uphold the property values or protect the nature of a neighborhood, and thus, destroy the fundamental character of the neighborhood. i) Other Art Piece a.
Lot #1: Thomas – sculpture in front lawn that could be considered offensive to many ii) Vacant Lot a.
Lot #2: Lacey b.
Lot # 5:Leinweber c. Lot #4: Monahan d. Lot #9: McClure f. g.
Lot #10: Causey
Lot #11: TCKF iii) Storage of Junk Cars and Other Inoperable Vehicles a.
Lot #3 (Easterly 1.63 acres) : Guthrie – 3 junk cars, inoperable boat, trailer & inoperable golf cart in front yard.
3.
Application of Factors
Application of the enumerated factors for determination of abandonment to these listed numerous violations and subjective indicators of the establishment of a neighborhood reveals
―the violations are so pervasive that they have ‗destroyed the fundamental character of the neighborhood.‘‖
See Musgrove , 2009 Tex.App. Lexis 2660, at * 16. Following Cowling ,
TCKF‘s proposed use is not so substantially different in its effect on the neighborhood from any other violation. Cowling , 312 S.W.2d at 945. Thus, these prior and existing violations are so great that a reasonable person would conclude that either no restrictive covenants exist, or if any do exist, they have been abandoned. In this case, violations of the restrictive covenants at issue
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and subjective indicators of a neighborhood, occur on 10 of the 12 subdivided lots in the purported Mesa Vista Subdivision (including TCKF for vacant lot). These violators include three of the Intervenors in this action. With regard to just the restrictive covenants at issue, there exist 7 violations on the 12 lots, or a 58% ratio of violation to total lots. Violations of the specific restrictive covenants occur on 5 of the 12 lots, or on 42% of the total lots.
In Tanglewood , the Court found the fact that 26% of the relevant properties had restrictive covenant violations was sufficient to support a jury finding of abandonment. Thus, the fact that
83% (10 of the 12) of the lots violate at least one of the restrictive covenants at issue and the subjective indicators of a neighborhood, that some lots violate more than one restrictive covenant or subjective factor, and, at the very least, 42% of the lots violate one or more of the restrictive covenants, is sufficient to preclude summary judgment and let a fact finder determine whether the property owners have abandoned the restrictive covenants at issue or waived their right to enforce them. In balancing the equities of the entire situation, the pervasiveness of the violations weighs heavily in favor of a finding of abandonment and waiver of the right to enforce the restrictive covenants at issue. See Tanglewood , 728 S.W.2d at 44.
Most importantly, though, the listed violations are severe enough that they include encroachment of property rights and prevention of passage for necessary services such as fire protection and school buses. The violations of storage of junk vehicles and display of denigrating art work blatantly diminish the character of the neighborhood, and thereby, negatively impact other property values. Such acts, gone un-objected to and unopposed, by their permanent and incurable nature make it impossible for the property owners to realize to a substantial degree the benefits intended through the restrictive covenants at issue. The nature, number, severity and pervasiveness of these violations show the other property owners did not
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rely upon this set of restrictive covenants when they purchased their properties. Finally, the fact that five of the twelve properties, or 42%, are not subject to and were initially sold without the restrictive covenants, shows the property owners place no credence nor reliance on enforcement of the restrictions. In balancing the equities of the entire situation, this fact weighs heavily in favor of a finding of abandonment and waiver of the right to enforce the restrictive covenants at issue.
Moreover, this evidence supports a finding that the fundamental character of the neighborhood has been abandoned. To the extent Intervenors argue the restrictive covenants were put into place to preserve the sanctity of the residential neighborhood, to preclude structures that tend to litter, clutter or denigrate the neighborhood character and that tend to create eye-sores, these numerous current violations are so pervasive to find this fundamental character has been abandoned. Moreover, the sale of property designated as Lot #1 (after the drafting of the plat and recording of the restrictive covenants at issue) shows the covenants were not intended to apply to all of the lots. The Intervenor owners of property designated as Lot #1 should not be allowed to enforce the restrictive covenants at issue against another similarly situated lot owner. In balancing the equities of the entire situation, these factors weigh heavily in favor of a finding of abandonment and waiver of the right to enforce the restrictive covenants at issue.
Next, there is no evidence of any prior attempt to enforce the restrictive covenants against these violations, in fact, 3 of the 5 Intervenors violate at least one of the restrictive covenant and
10 of the 12 property owners have violated at least one of the restrictive covenants or subjective indicators of a neighborhood. This factor weighs heavily in favor of an abandonment finding and waiver of the right to enforce the restrictive covenants at issue.
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Thus, this Court can reasonably conclude from this evidence that the set of restrictive covenants has been abandoned and Intervenors have waived any right to enforce the restrictive covenants at issue. From a reading of the restrictive covenants and a review of the existing setback, easement, square footage, boundary line violations, and other uses of the property that diminish the character of the neighborhood, this Court can conclude these violations undercut the essential purpose and intent underlying the restrictions and destroy the fundamental character of the neighborhood as contemplated by the restrictive covenants generally.
Intervenors cannot show TCKF‘s proposed use of the subject property has a substantially different effect on the Intervenors‘ properties than prior violations and will materially affect enjoyment of their properties. To begin, the setback violation of property designated as Lot #12 is so significant that it eliminates the possibility that fire fighters could drive a fire truck into the cul-de-sac or otherwise utilize the cul-de-sac to turn around and service the other properties.
This violation also prevents school buses from driving into the cul-de-sac. This violation substantially affects the safety of the neighborhood and substantially affects all properties within the area, including the subject property. TCKF‘s proposed use does not encroach upon another property owner‘s property, does not encroach upon a public easement, and does not invade the setback violations.
Further, even if Intervenors could show TCKF‘s proposed erection of a cross has a substantially different effect than all of the previous and current violations, this is not supportive of a summary judgment finding as a matter of law. This factor must be weighed with all others to determine balance of equities and is a question of fact.
Here, the record discloses evidence not merely of a single violation of the set of restrictive covenants, but of ongoing, permanent and material violations of many of the restrictions and
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such pervasive violations that fundamentally change the character of the neighborhood. Under these circumstances, the court could reasonably conclude: (1) the proposed erection of a cross on the subject property does not have any substantially different effect than current and more pervasive violations, (2) the pervasive violations have gone un-objected to by Intervenors or any other property owner, and nonetheless (3) the set of restrictive covenants have been abandoned based on the totality of the circumstances and the balancing of equities.
For these reasons, at the very least, there exists a genuine issue of material fact whether the restrictive covenants Intervenors seek to enforce have been abandoned or whether
Intervenors waived their right to enforce them. Due to this genuine issue of material fact,
Intervenors are not entitled to summary judgment as a matter of law on the requested declaratory finding that the restrictions are enforceable or that TCKF‘s proposed use of the subject property violates a restrictive covenant at issue.
F. APPLICATION OF ANY RESTRICTIVE COVENANTS IN THIS SITUATION IS
UNCONSTITUTIONAL
One of the fundamental rights embedded in the U.S. Constitution is the right of free speech. See, e.g., Va. v. Black , 538 U.S. 343, 358 (2002) (―The First Amendment, applicable to the States through the Fourteenth Amendment, provides that ‗Congress shall make no law . . . abridging the freedom of speech.‖);
Tex. v. Johnson , 491 U.S. 397, 404 (1989). This right extends to all manner of expression, including religious, political and artistic. Thus, the government is not allowed to restrict a person‘s right to express a religious point of view.
See, e.g., Barr v. Sinton , 295 S.W.3d 287 (Tex. 2009); Cantwell v. Conn.
, 310 U.S. 296 (1940); Kunz v. New York , 340 U.S. 290 (1951) . Nor may the government suppress one‘s right to enunciate a political point of view. See, e.g., N.Y. Times Co. v. Sullivan , 376 U.S. 254 (1964). Similarly, an individual is free to engage in a wide range of artistic expression. See, e.g.
, Southeastern
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Promotions, Ltd. v. Conrad , 420 U.S. 546 (1975) . This freedom of speech guaranteed by the
Constitution is not limited to verbal expression, but includes conduct and symbolic expression as well. See, e.g., Va. v. Black
, 538 U.S. at 358 (―The First Amendment affords protection to symbolic or expressive conduct as well as to actual speech.‖);
R.A.V. v. St. Paul , 505 U.S. 377,
382 (1992); Tex. v. Johnson , 491 U.S. 397, 404 (1989). Indeed, ―the Amendment embraces two concepts—freedom to believe and freedom to act.‖ Cantwell v. Conn.
, 310 U.S. at 303
(emphasis added).
In the current case, Defendant wishes to express its religious faith using a symbolic artistic medium. As shown above, this kind of speech falls squarely within the ambit of constitutional protections of the First and Fourteenth Amendments. The fact that Defendant‘s content or form of speech may be disagreeable to some of Defendant‘s neighbors is irrelevant.
See, e.g., Spence v. Wash.
, 418 U.S. 405 (1974) (flying U.S. flag upside down with peace symbol attached as a sign of protest is constitutionally protected speech); Va. v. Black , 538 U.S. at 360-367 (cross-burning is constitutionally protected speech where not accompanied by an intent to intimidate). Intervenors seek to suppress constitutionally protected speech by inconsistently applying the poorly worded and vague restrictions against TCKF, then distorting the actual wording of the restrictions in their motion, finally asking the court to do its dirty work for them. This type of behavior has been disapproved of by the United States Supreme Court for more than half a century.
Intervenors attempt to use a seemingly benign and neutral restrictive covenant to accomplish their ends. But the U.S. Supreme Court has squarely held that a court may not enforce a restrictive covenant that has the effect of abridging a person‘s constitutional rights.
Shelley v. Kraemer , 334. U.S. 1 (1948) (emphasis added). In Shelley , the Supreme Court
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overturned a state supreme court decision that enforced a restrictive covenant barring non-
Caucasians from owning property in a subdivision. Id.
at 4-5. The court explained that although the agreements were private in nature, if a similar policy had been imposed by a state or local ordinance, it would violate the Fourteenth Amendment. Id.
at 11-12. Significant was the fact that ―but for the active intervention of the state courts, supported by the full panoply of state power, petitioners would have been free to occupy the properties in question without restraint.‖
Id.
at 19. Therefore, enforcement of such covenants by the judicial branch amounted to unconstitutional state action that denied petitioners equal protection of the laws. Id.
at 20-21.
The reasoning of Shelley has been specifically applied in the context of a restrictive covenant that contained a provision proscribing the right of free speech. Gerber v. Longboat
Harbour N. Condo., Inc.
, 724 F.Supp. 884 (M.D. Fla. 1989, vac. in part on other grounds, 757
F.Supp. 1339 (M.D. Fla. 1989)). Gerber involved an attempt by a condominium association to enforce a restrictive covenant prohibiting the display of the American flag except on designated occasions. Id.
at 885. The court held that the rationale of Shelley applied, and enforcement of a covenant restricting the right to patriotic speech constituted state action. Id.
at 886-887.
Therefore, it would be unconstitutional for a court to enforce the covenant. Id .
Likewise, it would be improper for this court to apply the restrictive covenants in the manner requested by Intervenors, given the total lack of enforcement of even one violation in the last 38 years, the inconsistency of application, the poorly drafted document and the history of conveyances discussed above. Intervenors want to keep the cross off the hill for no other reason than they just don‘t want it there. The court cannot do Intervenors‘ bidding at the risk of violating the Texas Religious Freedom Restoration Act (TRFRA). Tex. Civ. Prac. & Rem. Code
§§ 110.001 through 110.012. Section 110.003 of TRFRA states that ―a government agency may
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not substantially burden a person‘s free exercise of religion‖ unless it ―demonstrates that the application of the burden to the person (1) is in the furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that interest.‖ Further, section
110.002 makes clear that the Act applies to any ―exercise of governmental authority.‖ Thus, a
Texas court deciding whether to enforce a covenant involving a restraint on the free exercise of religion is necessarily subject to the standard enunciated in TRFRA. Scott v. Texas , 80 S.W.3d
184, 193 (Tex.App.—Waco 2002, pet. ref‘d). See also, Barr v. Sinton , 295 S.W.3d 287 (Tex.
2009). To award judgment in Intervenors‘ favor in this case is a clear violation of Texas law.
G.
TCKF’s OBJECTIONS TO INTERVENORS’ SUMMARY JUDGMENT
EVIDENCE
TCKF objects to the affidavit of Richard Mosty as conclusory and because Intervenors have failed to properly respond to requests for discovery on this very issue. TCKF objects to the deposition testimony of Max Greiner offered by Intervenors as not properly authenticated and not suitable for use as evidence in a Motion for Summary Judgment. TCKF objects to various statements of alleged facts in Intervenors‘ motion which are not supported by any evidence whatsoever.
IV.
CONCLUSION
TCKF has raised a genuine issue of material fact on each and every basis for declaratory summary judgment asserted by Intervenors. TCKF has refuted every argument presented in support of Intervenors motion for summary judgment by presenting an objective and accurate perspective of the summary judgment evidence. For these reasons, Intervenors‘ motion for summary judgment should be denied.
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V.
PRAYER
WHEREFORE, THE COMING KING FOUNDATION REQUESTS AND PRAYS
THAT:
The Court deny Intervenors‘ Motion for Summary Judgment. The Coming King
Foundation further requests any additional relief to which it is entitled.
Respectfully submitted,
_____________________________________
KEVIN M. YOUNG
State Bar No. 22199700
(210) 477-7404 – Direct Line
PRICHARD, HAWKINS, MCFARLAND &
YOUNG, LLP
10101 Reunion Place, Suite 600
San Antonio, Texas 78216
(210) 477-7400 – Telephone
(210) 477-7450 – Telecopier and
DAVID H. BROCK
Law Office of David H. Brock
301 E. San Antonio Street
Boerne, Texas 78006
(830) 816-9033 - Telephone
(830) 816-9044 – Telecopier
ATTORNEYS FOR DEFENDANT,
THE COMING KING FOUNDATION
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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing
Defendant’s Response to
Intervenors’ Motion for Summary Judgment
has been hand delivered, on this 4 th
day of
February, 2010, to:
Richard C. Mosty
MOSTY LAW FIRM
222 Sidney Baker So., Ste.400
Kerrville, Texas 78028 and Certified Mail Return Receipt Requested to:
Eric Parker
The Parker Law Firm
608 North Llano St.
Fredericksburg, Texas 78624
____________________________________
KEVIN M. YOUNG
154562.1 v. 5 Page 67