Hourani v. Katzen (Tex.App.- Houston [1st Dist.] Nov. 25, 2009)(Higley)
(
suit for declaratory relief, dispute over restrictive covenants in a residential subdivision, defense of waiver,
estoppel, UDJA attorney's fees, appointment of special master in chancery)
AFFIRM TC JUDGMENT: Opinion by
Justice Higley
Before Justices Jennings, Higley and Sharp
01-07-00971-CV  Monzer Hourani and Carlton Park Owner's Association v. Jonathan Katzen
Appeal from 190th District Court of Harris County
Trial Court Judge: Hon.
Jennifer Walker Elrod  

O P I N I O N

In this suit for declaratory relief, which concerns a dispute over restrictive covenants in a residential
subdivision, appellants, Monzer Hourani and Carlton Park Owner's Association, Inc. ("Hourani"), challenge the
trial court's rendition of summary judgment in favor of appellee, Jonathan Katzen.

In six issues, Hourani contends that the trial court erred by (1) declaring Section 2.4(o) of the deed restrictions
invalid, (2) not finding that Katzen was barred by the doctrines of estoppel and waiver from challenging Section
2.4(o) of the restrictions, (3) granting relief beyond that requested in Katzen's motion for summary judgment,
(4) awarding attorney's fees that were inequitable and unjust, (5) disregarding the construction pre-approval
process set out in the restrictions at Section 2.2, and (6) appointing a Special Master without "good cause."

We affirm.

BACKGROUND

Carlton Park is a residential subdivision in Harris County comprised of 11 acres, divided into 9 lots, each
abutting Carlton Park Street. Hourani owns Lots 1 through 5; Michael Urban and Barbara Duganier own Lot 6;
Katzen owns Lot 7; Mool and Kim Nigam own Lot 8; and Lucy Cruce owns Lot 9. A lake extends across the front
portions of Lots 7 and 8.

Calton Park became, at its inception in 1984, governed by a "Declaration of Covenants, Conditions, and
Restrictions" ("Restrictions"). The purpose of the Restrictions was to "create and carry out a general and
uniform plan for the improvement, development, sale and use of Lots . . . in the Subdivision." The Restrictions
provided that they were to be administered by the "Carlton Park Owner's Association" ("Association") through a
Board of Directors ("Board").

Section 2.1 of the Restrictions provides that, "[e]ach Owner shall use his Lot . . . for single family residential
purposes only."

Section 2.2 requires the written approval of the Board prior to the construction of any building or improvement.

Section 2.4(o) specifies that "[n]o building or other structure or improvement shall be constructed within the
lake located on a portion of Lot 7 and a portion of Lot 8, or within fifteen (15) feet of the edges of such Lake,
without the prior approval of the Board."

Section 2.6(g) grants the owners of Lots 7 and 8 reciprocal easements for the exclusive use of the lake, as
follows:

Reciprocal easements of use and enjoyment are hereby granted in favor of the Owners of Lots 7 and 8 with
respect to the lake located on a portion of Lot 7 and a portion of Lot 8 (the "Lake"), such that the Owner of Lot
7 shall be entitled to reasonably use and enjoy the surface of the Lake within the boundaries of Lot 8 (but not
the Lake bottom or shoreline or any other portion of Lot 8), and the Owner of Lot 8 shall be entitled to
reasonably use and enjoy the surface of the Lake within the boundaries of Lot 7 (but not the Lake bottom or
shoreline or any other portion of Lot 7). Nothing contained in this Section 2.6(g) or elsewhere is this
Declaration shall be construed as granting or bestowing rights of use and enjoyment of the Lake to any party
other than the Owners of Lots 7 and 8 as provided for in this Section 2.6(g).

Section 2.7 provides that the lake is the sole property of the owners of Lots 7 and 8 and that the Carlton Park
Owner's Association ("Association") disclaims any rights or ownership in the lake, as follows:

The Lake located on a portion of Lot 7 and a portion of Lot 8 is the sole property of the respective Owners of
such Lots as shown on the Plat and Declarant and Association hereby disclaim any property rights or
ownership interest in the Lake and further disclaim any obligation of maintenance of security with regard
thereto. Maintenance of the Lake shall be the joint responsibility of the Owners of Lots 7 and 8 . . . .

In 1989, the Association, a nonprofit corporation, "forfeited existence," having failed to pay its franchises taxes
to the Secretary of State.

Katzen purchased Lot 7 in 1993. The deed provides that Katzen accepted the conveyance "subject to any and
all restrictions, liens, covenants, conditions and easements, if any, relating to [the property], but only to the
extent they are still in effect." The lot remained unimproved until 2004, when Katzen contracted with Sprouse
House Custom Homes to build a single family residence on the lot.

Lot 7 is surrounded, on the sides and rear, by property owned by others. The lake extends almost completely
across the front of Lot 7. Hence, a narrow path of approximately 15 feet, situated between the eastern edge of
the lake and the eastern boundary line of the property, provides the only street access to the dry portion of the
lot behind the lake. There is also a 15-foot setback (1) line along the eastern boundary line, which comes near
to or touches the edge of the lake. Katzen sought to either build a bridge over the edge of the lake or to obtain
a variance to pour a driveway.

Katzen was granted a special variance from the City of Piney Point Village to build "a driveway/bridge" within 15
feet of the edge of the lake and within the setback zone. The record shows that the City concluded that Katzen
would be allowed to construct "an engineered driveway/bridge" along the eastern edge of the property. (2)

Because the Association had "forfeited existence," Katzen submitted his construction plans to the other
property owners in the subdivision. Urban and Duganier responded by letter that they disapproved of the
plans; Hourani responded by letter that, if Katzen moved forward with his plans, Hourani would sue.

On January 19, 2005, Katzen sued Hourani, Urban, Duganier, the Nigrams, and Cruce, alleging that the
Restrictions were preventing him from accessing his property. Katzen sought declaratory relief from the trial
court, as well as attorney's fees. Katzen expressly identified his suit as a declaratory judgment action brought
under the Uniform Declaratory Judgments Act. See Tex. Civ. Prac. & Rem. Code Ann. § 37.001-.011 (Vernon
2008) ("DJA"). (3)

On October 28, 2005, Katzen moved for summary judgment, seeking a declaration that the Restrictions were
invalid to the extent that they prevented him from accessing his property. To support his motion, Katzen
attached as evidence various documents and affidavits, which are discussed in detail below.

On November 1, 2005, Katzen supplemented his motion for summary judgment, seeking a declaration that this
case be deemed "exceptional," under Rule of Civil Procedure 171, in that Hourani "arbitrarily and capriciously"
sought to prevent Katzen from obtaining access to his property, and asking that the trial court appoint a special
master with a background in engineering to make a binding decision with regard to the means and
implementation of reasonable access to Lot 7.

On December 27, 2005, in their response to the motion for summary judgment, Urban, Duganier, and Cruce
(4) contended that fact issues precluded summary judgment, namely, the lack of engineering testing and
structural studies of the lake and soil necessary to support Katzen's contention that his proposed access was
safe.

On December 29, 2005, in his response to Katzen's motion for summary judgment, Hourani contended that
Katzen was not entitled to summary judgment because Katzen had failed to submit any plans for approval;
Katzen's proposed driveway or bridge would damage the lake; Katzen had failed to establish that the
restrictions should be invalidated; Katzen had offered no evidence that the restrictions were "arbitrary,
capricious, or discriminatory"; "Katzen offered no evidence that the Lake could not be preserved or that the
owners had abandoned the Lake-related restrictions"; and that Katzen had failed to prove that he was entitled
to an easement by necessity.

To support his motion, Hourani attached as evidence various documents and affidavits, which are discussed in
detail below.

On February 15, 2006, in his reply to Hourani's response, Katzen asserted that, pursuant to the Restrictions,
Hourani did not have any right to "use and enjoyment" of the lake.

On April 6, 2006, Hourani obtained reinstatement of the Association by the Secretary of State. The Association
then intervened in this suit.

Also in April 2006, the trial court asked the parties to submit the names of proposed engineering experts to
serve as master. Urban, Duganier, and Cruce submitted a proposal that Eric C. Green, Professional Engineer,
be appointed to serve as master. On April 20, 2006, the trial court ruled, "In accordance with Rule 171 and the
parties' recommendations, the Court appoints Eric C. Green, P.E., as a special master on the engineering
issues in this case." The court later ordered that Green's fees be split equally amongst each of the
homeowners and the Association.

In his report, Green indicates that he found that "[t]he construction of a driveway along the pond side of the
berm, with some filling of the pond adjacent to the berm, is the most reasonable location concerning
engineering and construction limitations posed by the site." In addition, based on his review, Green stated that
"the construction of the driveway along the edge of the pond will increase the stability of the existing berm, and
will not impact the watertight integrity of the pond."

On October 15, 2007, after a hearing, the trial court granted a "Final Summary Judgment" in favor of Katzen,
declaring, as follows:

1. That Section 2.4(o) of the "Declaration of Covenants, Conditions, and Restrictions for Carlton Park"
recorded at . . . is declared invalid only to the extent such Restriction prevents the property owner from access
to Lot 7 . . . .

2. That the Master's Report of Findings dated August 29, 2007 is hereby adopted by the Court and
incorporated by reference in this Judgment.

3. That [Katzen] or his designee shall have the right to access Lot 7 of the Subdivision by construction of a
driveway in conformance with the Report of Findings of the Master dated August 29, 2007. Further, that
[Katzen] or his designee shall submit the construction plans of the driveway to the Special Master to confirm
their conformance with the Report of Findings.

4. Intervenor or any reconstructed or formed Carlton Park Homeowners Association or Board of Directors is
hereby bound by this Judgment.

5. That [Hourani] take nothing by his counterclaim against [Katzen].

6. That pursuant to Tex. Civ. Prac. & Rem. Code 37.009 [Hourani] pay [Katzen] the sum of $38,251.25 for
attorney fees incurred by [Katzen].

7. That [Hourani] pay [Katzen] the additional sum of $25,000 for attorney fees in the event this case is
successfully appealed to the court of appeals and the additional sum of $10,000 in the event this case is
successfully appealed to the Texas Supreme Court.

8. That all costs for the Master shall be split between the parties as previously agreed by the parties. All other
costs shall be taxed against [Hourani].

9. The court denies all relief not granted in this judgment. This judgment finally disposes of all parties and
claims. Hourani filed a "Motion to Reconsider and/or New Trial," which was overruled. This appeal by Hourani
ensued.

ANALYSIS

In six issues, Hourani contends that the trial court erred by (1) declaring Section 2.4(o) of the deed restrictions
invalid, (2) not finding that Katzen was barred by the doctrines of estoppel and waiver from challenging Section
2.4(o) of the restrictions, (3) granting relief beyond that requested in Katzen's motion for summary judgment,
(4) awarding attorney's fees that were inequitable and unjust, (5) disregarding the construction pre-approval
process set out in the restrictions at Section 2.2, and (6) appointing a Special Master without "good cause."

Appointing a Special Master

In his sixth issue, Hourani contends that the trial court erred by appointing a special master without "good
cause." Specifically, Hourani contends that, although the trial court stated in its order that it was acting in
accordance with Rule 171, it failed to recite in its order "any explanation as to how this case fits the criterion of
Rule 171." Hourani directs us to Simpson v. Canales for support. 806 S.W.2d 802, 810 (Tex. 1991).

The appointment of a master lies within the sound discretion of the trial court and should not be reversed
except for a clear abuse of that discretion. Id. at 811. Rule of Civil Procedure 171, which governs the
appointment of a special master, provides, in relevant part:

The court may, in exceptional cases, for good cause appoint a master in chancery, . . . who shall perform all of
the duties required of him by the court, and shall be under orders of the court, and have such power as the
master in chancery has in a court of equity.


Tex. R. Civ. P. 171 (emphasis added). The "exceptional case" and "good cause" standards are "not
susceptible [to] precise definition." Simpson, 806 S.W.2d at 811. Although the trial court may consider the
complexity of the case, the rule's standards may not be satisfied merely by showing that a case is
time-consuming or complicated. Id.

In Simpson, the trial court appointed a master based on the complexity of the toxic-tort case before it, which
involved one plaintiff and 18 defendants. Id. Over the course of 10 months, 8 discovery motions were filed, but
the trial court did not hear any of the pending discovery disputes before appointing the master. Id. The
supreme court concluded that the appointment of the master constituted a clear abuse of discretion by the trial
court because, although the case may have been more complicated than others on the trial court's docket, it
could "hardly be said to be exceptional, at least at this point in its development." Id. The supreme court
explained that "[e]ven if this were an exceptional case, based upon the allegations in the pleadings, the number
of parties, or the amount of activity it generated, we would be reluctant to approve the trial court's delegation of
the supervision of all discovery to be conducted in the case to the master." Id. at 811-12.

Here, Katzen moved for the appointment of a special master to assist the trial court with the complex issues of
soil stability and lake retention. The trial court asked the parties to submit the names of proposed engineering
experts to serve as master. Urban, Duganier, and Cruce proposed that Eric C. Green, P. E., be appointed. The
trial court's order states, "In accordance with Rule 171 and the parties' recommendations, the Court appoints
Eric C. Green, P.E., as special master on the engineering issues in this case." In its final judgment, the trial
court states that it found that good cause existed to appoint a professional engineer as a Master in Chancery
pursuant to Tex. R. Civ. P. 171. The Court, by order dated April 20, 2006, appointed Eric C. Green, P.E. as
Master to provide a report recommending the engineering design for the access to the property.


Unlike Simpson, the record before us supports the trial court's conclusion that this is an "exceptional case" and
that "good cause" existed for supervision by a master. See Simpson, 806 S.W.2d at 811-12 (reviewing record
for required support). The highly technical nature of the case, which involves the feasibility of constructing a
driveway or bridge along the edge of a lake without damaging the lake, and the assistance which may be
provided to the trial court by a special master with engineering training and expertise constitutes a sufficiently
exceptional condition to justify the present appointment. See Transamerican Natural Gas Corp. v. Mancias, 877
S.W.2d 840, 843 (Tex. App.--Corpus Christi 1994, orig. proceeding); see also Texas Bank and Trust Co. v.
Moore, 595 S.W.2d 502, 510-11 (Tex. 1980).

We conclude that the trial court did not abuse its discretion by appointing a master.

Accordingly, Hourani's sixth issue is overruled.

Summary Judgment

A. Standard of Review

Katzen sought relief under the Uniform Declaratory Judgments Act. Tex. Civ. Prac. & Rem. Code Ann. §
37.001-.011 (Vernon 2008). Texas Rule of Civil Procedure 166a states, in pertinent part, that a party seeking
to recover on a declaratory judgment may, at any time after the adverse party has appeared or answered,
move with or without supporting affidavits for a summary judgment in his favor upon all or any part thereof. Tex.
R. Civ. P. 166a(a).

Declaratory judgments rendered by summary judgment are reviewed under the same standards as govern
summary judgments generally. Bowers v. Taylor, 263 S.W.3d 260, 264 (Tex. App.--Houston [1st Dist.] 2007, no
pet.). We review a trial court's granting of a traditional summary judgment de novo. Provident Life & Accident
Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). A summary judgment under Rule of Civil Procedure
166a(c) is properly granted only when a movant establishes that there are no genuine issues of material fact
and that he is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); KPMG Peat Marwick v. Harrison
County Hous. Fin., 988 S.W.2d 746, 748 (Tex. 1999). A plaintiff moving for summary judgment must prove that
he is entitled to summary judgment as a matter of law on each element of his cause of action. MMP, Ltd. v.
Jones, 710 S.W.2d 59, 60 (Tex. 1986); Rizkallah v. Conner, 952 S.W.2d 582, 582 (Tex. App.--Houston [1st
Dist.] 1997, no pet.). In deciding whether there is a disputed material fact precluding summary judgment,
evidence favorable to the non-movant will be taken as true, every reasonable inference must be indulged in
favor of the non-movant, and any doubts resolved in its favor. Knott, 128 S.W.3d at 215. The movant must
conclusively establish its right to judgment as a matter of law. See MMP, Ltd., 710 SW.2d at 60. A matter is
conclusively established if reasonable people could not differ as to the conclusion to be drawn from the
evidence. City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005).

B. The Restrictions

In his first issue, Hourani contends that the trial court erred by declaring Section 2.4(o) invalid. In his fifth issue,
Hourani contends that the trial court erroneously directed "that any plans be submitted to the Master, instead
of the Board as required by Restriction 2.2." Hourani contends that "Sections 2.2 and 2.4(o) are plain and
unambiguous and thus, must be enforced as written." We will address these related points together.

1. "Preemptive violation" of Section 2.2

Hourani first contends that, by its summary judgment, the trial court necessarily disregarded the
pre-construction approval process mandated by Section 2.2 of the Restrictions. Conversely, Katzen contends
that he was not required to seek Board approval because the Association had forfeited its charter and that
there was no Board in existence to grant or withhold the approval of his construction plans, citing Texas
Property Code section 204.011. See Tex. Prop. Code Ann. § 204.011 (Vernon Supp. 2009).

In granting summary judgment in favor of Katzen, the trial court struck through the language in the judgment
regarding invalidation of the pre-approval Restriction, Section 2.2, as it concerned the "construction of the
access and the Katzen residence," pursuant to Property Code sections 204.0011(b) and (c). Hence, the trial
court did not expressly declare Section 2.2 invalid on the basis of Property Code section 204.011.

We address this point, nevertheless, because Hourani complains on appeal that the trial court implicitly
disregarded the pre-approval process mandated by Section 2.2 when it declared Section 2.4(o) invalid and
that "Katzen's entire challenge is predicated on his preemptive violation of the restrictions." The analysis of his
point is governed by Property Code section 204.011(c)(3). See id.

Section 2.2 mandates, in pertinent part, "No building or improvement of any kind shall be erected, placed,
constructed, maintained or altered on any portion of the Land until the Plans for such building or improvement
have been submitted to and approved in writing by the Board . . . ."

In his petition, Katzen asserted that he was not required to seek Board approval because the Association had
forfeited its charter and that there was no Board in existence to grant or withhold the approval of his
construction plans. Katzen contended that Section 2.2, which required him to seek approval from a body that
no longer existed as a precondition to construction, effectively prohibited him from making use of his property.
Katzen stated that, in the absence of a Board or Association, his builder, Sprouse, submitted the construction
plans to all of the property owners in the subdivision. Sprouse received letters from Hourani (the owner of Lots
1-5) and Urban and Duganier (the owners of Lot 6), stating that they did not approve of the driveway. Hourani
threatened to sue Katzen if construction commenced. Katzen sought a declaratory judgment that the
restrictions requiring pre-approval of construction plans by an entity that was not in existence at the time the
suit was filed, were invalid.

In his motion for summary judgment, dated October 28, 2005, Katzen asserted that he was entitled to summary
judgment because, as a matter of law, there was no Board in existence, as the Association had ceased to exist
as a legal entity, pursuant to Property Code Section 204.011 and Anderson v. New Property Owners'
Association of Newport, 122 S.W.3d 378, 389 (Tex. App.--Texarkana 2003, writ denied) (holding that property
owners' association not in existence at time of suit had no authority to enforce pre-approval restriction
regarding driveway construction).

Katzen appended to his motion, as evidence pertinent to this point, certified copies of the subdivision plat and
his deed; the Restrictions; the letter and construction plans sent by Sprouse to the property owners; the letters
received from Hourani and Urban/Duganier; and a certification from the Office of the Secretary of State,
reflecting that the Association had "forfeited existence" and had been inactive since 1989.

In his response, Hourani contended, as pertinent to this issue, that "Katzen and Sprouse failed to submit any
plans for approval . . . ." Hourani also contended that, because he was personally entitled to enforce a
restrictive covenant, "the issue of the approval of the Board is irrelevant." Hourani attached, as evidence to
support his response, the following: the Restrictions; the Lot 7 deed; Sprouse's letter to homeowners regarding
the proposed construction; the Urban/Duganier letter to Sprouse; the Association's certificate of incorporation
and its by-laws; notice of an annual meeting; minutes from a 1994 Board meeting; and the affidavit of engineer
Richard Gay and that of Hourani.

In his own affidavit, Hourani attested that Katzen failed "to provide the Association with design, drawings and
specifications by registered professional engineers and hydrologic engineers . . . ." (Emphasis added.) Gay
attested that

[t]he construction of a bridge such as the one suggested by Katzen and Sprouse with its proximity to the lake
and the dam would have the potential to damage the lake if not properly designed. . . . Improper design and/or
construction could result in leakage which could substantially impair the aesthetic functionality of the lake.

The conceptual layout of the bridge as depicted on the site plan and the perspective is not sufficient to make a
determination regarding the adequacy of the bridge design with regard to safeguarding the integrity of the
existing lake. In order to make such a determination, detailed plans and specifications with respect to the
proposed bridge would need to be provided by the owner or builder and his/their engineer . . . . An evaluation
of such plans and specifications could then be made by qualified professionals with specific knowledge of
structural and geotechnical engineering.

Section 2.2 expressly mandates that a property owner is not permitted to undertake any construction "until the
Plans for such building or improvement have been submitted to and approved in writing by the Board."
(Emphasis added.) The Board is the sole entity provided in the Restrictions with architectural control over the
subdivision. See Tex. Prop. Code Ann. § 204.011(a) (Vernon Supp. 2009). Property Code Section 204.011
provides that the authority of an architectural control committee, that is, as here, vested by virtue of the
Restrictions in the property owners' association, will expire when, inter alia, the property owners' association
"ceases to exist." See id. § 204.011(c)(3).

The record shows, and it is undisputed, that the Association, a non-profit corporation which had failed to pay its
franchise taxes to the Secretary of State, had "forfeited existence" fifteen years prior to 2004--when Katzen
sought to build his driveway access to Lot 7. When a corporation forfeits its charter, it forfeits its right to do
business and is dissolved. See Tex. Bus. Corp. Act Ann. art. 7.12A, F (Vernon 2003) (explaining that dissolved
corporation may not continue its corporate existence for purpose of continuing business or affairs for which it
was organized); Emmett Props., Inc. v. Halliburton Energy Servs., Inc., 167 S.W.3d 365, 369 (Tex.
App.--Houston [14th Dist.] 2005, pet. denied).

Once a corporation pays delinquent taxes and is reinstated, the payment relates back and revives the
corporate rights that were forfeited. See Tex. Tax Code Ann. § 171.312; Halliburton, 167 S.W.3d at 369; Mello
v. A.M.F., Inc., 7 S.W.3d 329, 331 (Tex. App.--Beaumont 1999, pet. denied) (stating that if corporation files its
delinquent reports and pays its delinquent franchise taxes, its corporate privileges and charter are retroactively
reinstated); Bluebonnet Farms, Inc. v. Gibraltar Sav. Ass'n, 618 S.W.2d 81, 85 (Tex. Civ. App.--Houston [1st
Dist.] 1980, writ ref'd n.r.e.). Generally, an entity is afforded three years from the date of dissolution to cure its
corporate status, before it begins to lose certain rights. See Halliburton, 167 S.W.3d at 369.

We need not determine the effect of any retroactive reinstatement or limitations in this case, however. The
record shows that the Association "forfeited existence" in 1989 and was not reinstated April 4, 2006. Hence, in
2004, when Katzen sought to begin construction of his driveway, he could not have complied with Section 2.2,
which required the written approval of an entity that had forfeited its existence. See Anderson, 122 S.W.3d at
389-90 (concluding that property owner not required to seek approval for construction of driveway from
homeowners' association that lacked authority under section 204.011).

We recognize that, notwithstanding the status of the Board, any person entitled to benefit under a restrictive
covenant is entitled to enforce it. See Ski Masters of Tex., L.L.C. v. Heinemeyer, 269 S.W.3d 662, 668 (Tex.
App.--San Antonio 2008, no pet.). Hence, here, any one or more of the property owners could have compelled
Katzen to seek pre-approval of the Board, in accordance with Section 2.2, had it existed. Nothing in the
Restrictions, however, requires Katzen to submit certain plans to, or obtain written approval from, each of the
individual property owners in the subdivision, in the absence of a board.

We conclude that the trial court did not err by disregarding a "preemptive violation" of Section 2.2.

2. Section 2.4(o)

Next, Hourani contends that the trial court erred by declaring Section 2.4(o) invalid. Specifically, Hourani
contends that, as in any other contract, the language in a restriction must be construed in accordance with the
intention expressed by the language therein. See Herbert v. Polly Ranch Homeowners Ass'n, 943 S.W.2d 906,
907-08 (Tex. App.--Houston [1st Dist.] 1996, no writ). Hourani contends that the trial court lacked authority to
"alter, modify, or invalidate the Restriction--as such action was tantamount to rewriting the parties' contract."

Restrictive covenants are subject to the general rules of contract construction. City of Pasadena v. Gennedy,
125 S.W.3d 687, 692 (Tex. App.--Houston [1st Dist.] 2003, pet. denied). Words used in a restrictive covenant
may not be enlarged, extended, stretched, or changed by construction. Wilmoth v. Wilcox, 734 S.W.2d 656,
657 (Tex. 1987); Pebble Beach Prop. Owners' Assoc. v. Sherer, 2 S.W.3d 283, 288 (Tex. App.--San Antonio
1999, pet. denied). Rather, words and phrases used in the covenant must be given their commonly accepted
meaning. Wilmoth, 734 S.W.2d at 657.

In construing a restrictive covenant, the court's primary task is to determine the intent of its framers. See Tex.
Prop. Code Ann. § 202.003(a) (Vernon 2007) ("A restrictive covenant shall be liberally construed to give effect
to its purposes and intent."); Wilmoth, 734 S.W.2d at 657; Wilchester W. Concerned Homeowners LDEF, Inc. v.
Wilchester W. Fund, Inc., 177 S.W.3d 552, 563 (Tex. App.--Houston [1st Dist.] 2005, pet. denied); Samms v.
Autumn Run Comty. Improvement Ass'n, 23 S.W.3d 398, 402 (Tex. App.--Houston [1st Dist.] 2000, pet.
denied). Covenants restricting the free use of land are not favored by the courts, but when they are confined to
a lawful purpose and are clearly worded, they are generally enforceable. Wilmoth, 734 S.W.2d at 657. "All
doubts must be resolved in favor of the free and unrestricted use of the premises, and the restrictive clause
must be strictly construed against the party seeking to enforce it." Highlands Mgmt. Co. v. First Interstate Bank,
956 S.W.2d 749, 753 (Tex. App--Houston [14th Dist.] 1997, pet. denied); see Ashcreek Homeowner's Ass'n v.
Smith, 902 S.W.2d 586, 588-89 (Tex. App.--Houston [1st Dist.] 1995, no writ) (explaining that Property Code
section 202.003 does not does not conflict with doctrine that restrictive covenants be construed either to favor
free and unrestricted use of land or against party seeking enforcement).

Section 2.4(o) specifies that "No building or other structure or improvement shall be constructed within the lake
located on a portion of Lot 7 and a portion of Lot 8, or within fifteen (15) feet of the edges of such Lake, without
the prior approval of the Board."

It is undisputed that Section 2.4(o) unambiguously prohibits the construction of any improvement within the lake
or within 15 feet of its edge. We construe an unambiguous deed restriction as a matter of law. Am. Golf Corp.
v. Colburn, 65 S.W.3d 277, 280 (Tex. App.--Houston [14th Dist.] 2001, pet. denied). The trial court's judgment
reflects that it "declared invalid" Section 2.4(o) "only to the extent such Restriction prevents the property owner
from access to Lot 7."

In his motion for summary judgment, Katzen contended that his lot is useless for any purpose if the Restrictions
are applied to preclude him from access to his lot. As his evidence, pertinent to this point, Katzen attached a
certified copy of the plat; a certified copy of Katzen's deed; a map of Lots 7 and 8; and a certified copy of the
Restrictions. The plat shows Lot 7 abutting Carlton Park Street. The map reflects the position of the lake
across the front of Lot 7, and a 15-foot setback line along the property boundary that touches the edge of the
lake. The summary judgment evidence shows that Lot 7 is land-locked on three sides and that its only means
of ingress and egress to Carlton Park Street is over the 15-foot strip of land that lies between the lake and the
property boundary. Katzen obtained a variance from Piney Point Village to build in the setback zone. However,
Section 2.4(o) prohibits the construction of any improvement in the same 15-foot space because it also lies
within 15 feet of the edge of the lake.

We construe section 2.4(o) liberally to give effect to its purposes and intent, resolve all doubt in favor of the
free and unrestricted use of the premises, and strictly construe the provision against Hourani, who seeks
enforcement. See Tex. Prop. Code Ann. § 202.003(a); Highlands Mgmt. Co., 956 S.W.2d at 753; Smith, 902
S.W.2d at 588-89.

First, the drafters' stated purpose in the Restrictions was to "create and carry out a general and uniform plan
for the improvement, development, sale and use of Lots . . . in the Subdivision." Section 2.1 of the Restrictions
provides that, "Each Owner shall use his Lot . . . for single family residential purposes only." Hence, first and
foremost, the intent of the drafters was to create a residential subdivision, each lot to be improved and
developed as a single family residence.

By purchasing Lot 7 in Carlton Park subdivision, pursuant to a recorded plat depicting that Lot 7 abuts Carlton
Park Street, Katzen has, as a matter of law, a right of ingress and egress along Carlton Park Street. "Abutting
property owners have private rights in existing streets and alleys in addition to their rights in common with the
general public." GAR Assocs. III, L.P. v. State ex rel. Tex. Dept. of Transp., 224 S.W.3d 395, 402 (Tex.
App.--Houston [1st Dist.] 2006, no pet.) (citing City of San Antonio v. Olivares, 505 S.W.2d 526, 530 (Tex.
1974)). "This right is in effect a private right of ingress and egress and is a right of passageway to and from the
property." Id. "Conveyance of land by reference to a map or plat, upon which lots and streets are laid out,
results in the purchaser or one holding under him, acquiring by implication a private easement in the alleys or
streets shown on the plat." Id.; see also Town of Palm Valley v. Johnson, 17 S.W.3d 281, 288 (Tex.
App.--Corpus Christi 2000, pet. denied) ("A private easement in a street may be acquired either as a
purchaser in a subdivision with reference to a recorded plat or map . . . or as an abutting property owner.")).

Liberally construing Section 2.4(o), which specifies that "[n]o building or other structure or improvement shall
be constructed within the lake located on a portion of Lot 7 and a portion of Lot 8, or within fifteen (15) feet of
the edges of such Lake," the obvious intent of the drafters was to prohibit the building of a home directly on the
lake, or a dock within the lake, because Lots 7 and 8 share reciprocal easements. It belies logic that the
developers of the nine-lot residential subdivision intended, when they drafted Section 2.4(o), to render one of
those lots worthless as a residential building site.

Hourani contends that "the undisputable and legitimate purpose and intent of the Restriction is to preserve the
beautiful lake, its appearance, and the ambiance and value it provides to the Piney Point and Carlton Park
neighborhoods and residents."

Section 2.7, however, provides that the lake is the sole property of the owners of Lots 7 and 8, and that the
Association expressly disclaims any rights, ownership, or obligations with regard to the lake, as follows:

The Lake located on a portion of Lot 7 and a portion of Lot 8 is the sole property of the respective Owners of
such Lots as shown on the Plat and Declarant and Association hereby disclaim any property rights or
ownership interest in the Lake and further disclaim any obligation of maintenance of security with regard
thereto. Maintenance of the Lake shall be the joint responsibility of the Owners of Lots 7 and 8 . . . . (Emphasis
added.) Further, Section 2.6(g) expressly excepts any party, other than the owners of Lots 7 and 8, from
having any rights of use or enjoyment in the lake, as follows:

Reciprocal easements of use and enjoyment are hereby granted in favor of the Owners of Lots 7 and 8 with
respect to the lake located on a portion of Lot 7 and a portion of Lot 8 (the "Lake"), such that the Owner of Lot
7 shall be entitled to reasonably use and enjoy the surface of the Lake within the boundaries of Lot 8 (but not
the Lake bottom or shoreline or any other portion of Lot 8), and the Owner of Lot 8 shall be entitled to
reasonably use and enjoy the surface of the Lake within the boundaries of Lot 7 (but not the Lake bottom or
shoreline or any other portion of Lot 7). Nothing contained in this Section 2.6(g) or elsewhere is this
Declaration shall be construed as granting or bestowing rights of use and enjoyment of the Lake to any party
other than the Owners of Lots 7 and 8 as provided for in this Section 2.6(g).

(Emphasis added.) In his response to the motion for summary judgment, Hourani appended as his evidence,
the Restrictions; the Lot 7 deed; Sprouse's letter to homeowners regarding the proposed construction; the
Urban/Duganier letter to Sprouse; the Association's certificate of incorporation and its by-laws; notice of an
annual meeting; minutes from a 1994 Board meetinghis own affidavit and that of Gay.

Hourani attested that any construction of a driveway or bridge "in the area" will damage the lake. Gay attested
that

[t]he construction of a bridge such as the one suggested by Katzen and Sprouse with its proximity to the lake
and the dam would have the potential to damage the lake if not properly designed. . . . Improper design and/or
construction could result in leakage which could substantially impair the aesthetic functionality of the lake.

(Emphasis added.)

The issue before us is not whether there are genuine issues of material fact with regard to the method of
construction of the driveway itself or whether it would damage the lake. Rather, the issue Hourani has placed
before us is the propriety of the trial court's judgment invalidating Section 2.4(o) to the extent that it denies
Katzen all access to his property.

Hourani offered no summary judgment evidence that raises a genuine issue of material fact with regard to
whether Section 2.4(o) denies Katzen all access to Lot 7. We conclude that Hourani did not meet his summary
judgment burden to raise a genuine issue of material fact.

In a subissue, Hourani contends that the Property Code section 202.004 mandates that the Restriction "is
presumptively reasonable--unless and until the evidence proves otherwise" and that Katzen failed to rebut the
presumption through evidence that the Restriction is "arbitrary, capricious or discriminatory." See Tex. Prop.
Code Ann. § 202.004 (Vernon 2007). Property Code section 202.004, which governs "[a]n exercise of
discretionary authority by a property owner's association or other representative" does not apply to any
exercise of discretion by individual property owners. See Jacks v. Bobo, No. 12-07-00420-CV, 2009 WL
2356277, at *7 (Tex. App.--Tyler July 31, 2009, pet. denied). Further, it is undisputed that there has been no
exercise of discretionary authority by the Association in this case.

Finally, Hourani, inconsistently, contends that he does not deny that Katzen is entitled to some form of access,
but that Section 2.4(o) "simply requires Board approval for any plan to build a structure or improvement within
the lake or 15 feet of its edges."

The trial court's judgment reflects that it expressly adopted the Master's Report of Findings; declared that
Katzen have access to Lot 7 by construction of a driveway in conformance with the Master's report; and
declared that Katzen was required to submit the construction plans of the driveway to the Special Master for
approval.

The trial court's judgment was signed October 15, 2007. The record shows that Hourani had successfully
reinstated the Association with the Secretary of State on April 4, 2006. Hence, at the time of the trial court's
judgment, the Association was restored; however, the trial court did not order Katzen to re-submit his driveway
plans to the Association.

The record shows that Katzen's plans had already been submitted to all of the property owners and that their
positions had been established. The trial court was not required to order Katzen to perform the futile act of
resubmitting his plans to the Association, which is governed by the same individuals and would likely have left
Katzen in the position of having to restart his lawsuit. See City of Houston v. Kolb, 982 S.W.2d 949, 954 (Tex.
App.--Houston [14th Dist.] 1999, pet. denied) (concluding that property owner not required to resort to
piecemeal litigation to obtain final determination when it was clear town would not approve variance requested).

Accordingly, Hourani's first and fifth issues are overruled.

C. Granting Relief Beyond that Requested

In his third issue, Hourani contends that the trial court erred by granting relief beyond that requested by
Katzen's motion for summary judgment.

Hourani contends that, by his motion for summary judgment, Katzen

requested an Order declaring that he or his designee be granted the right to access Lot 7 by building the
bridge . . . ; however, the trial court entered the Final Summary Judgment Order declaring that Katzen had the
right to access Lot 7 via the Special Master's proposed driveway. . . . Accordingly, the trial court erroneously
granted relief which Katzen had not requested in his Motion.

A motion for summary judgment must stand or fall on the grounds expressly presented in the motion. Cincinnati
Life Ins. Co. v. Cates, 927 S.W.2d 623, 625 (Tex. 1996). A trial court errs in granting more relief than was
requested. Inglish v. Union State Bank, 945 S.W.2d 810, 811 (Tex. 1997).

In his motion, Katzen expressly requested a summary judgment declaring, "[t]o the extent that the Restrictions
are interpreted to deny access to, or the use and enjoyment of, his property, the Restrictions are invalid."
Katzen stated, "[A]n examination of Exhibits A and B demonstrate that there is only one reasonable way for
Katzen to access his property, which is to place a driveway on the far east side of the lake, which was the
solution Katzen proposed."

The trial court granted summary judgment declaring that

1. That Section 2.4(o) of the "Declaration of Covenants, Conditions, and Restrictions for Carlton Park"
recorded at . . . is declared invalid only to the extent such Restriction prevents the property owner from access
to Lot 7 . . . .

2. That the Master's Report of Findings dated August 29, 2007 is hereby adopted by the Court and
incorporated by reference in this Judgment.

3. That [Katzen] or his designee shall have the right to access Lot 7 of the Subdivision by construction of a
driveway in conformance with the Report of Findings of the Master dated August 29, 2007. . . . . (Emphasis
added.)

Hence, the record shows that the trial court's summary judgment was based on grounds presented in the
motion. We conclude that the trial court did not err.

Accordingly, Hourani's third issue is overruled.

No-evidence Motion for Summary Judgment: Estoppel and Waiver

In his second issue, Hourani contends that the trial court erred by granting summary judgment in favor of
Katzen because Katzen was barred by the doctrines of estoppel and waiver from challenging Section 2.4(o) of
the restrictions.

Katzen moved for both no-evidence and traditional summary judgments as to Hourani's defenses of estoppel
and waiver.

After an adequate time for discovery, the party without the burden of proof may move for a no-evidence
summary judgment, with or without presenting evidence, on the basis that there is no evidence to support an
essential element of the non-moving party's claim. Tex. R. Civ. P. 166a(i). A no-evidence motion for summary
judgment is essentially a motion for a pre-trial directed verdict. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572,
581-82 (Tex. 2006). Once the motion is filed, the burden shifts to the nonmoving party to present evidence
raising a genuine issue of material fact as to the elements specified in the motion. Id. at 582. "We review the
evidence presented by the motion and response in the light most favorable to the party against whom summary
judgment was rendered, crediting evidence favorable to that party if reasonable jurors could, and disregarding
contrary evidence unless reasonable jurors could not." Id. "The court must grant the motion unless the
respondent produces summary judgment evidence raising a genuine issue of material fact." Tex. R. Civ. P.
166a(i). If the non-movant brings forward more than a scintilla of evidence that raises a genuine issue of
material fact, then summary judgment is not proper. Flameout Design & Fabrication, Inc. v. Pennzoil Caspian
Corp., 994 S.W.2d 830, 834 (Tex. App.--Houston [1st Dist.] 1999, no pet.). More than a scintilla exists when the
evidence rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.
Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997).

1. Estoppel

In his motion for no-evidence summary judgment, Katzen asserted that there is no evidence to support an
element of Hourani's estoppel defense.

Quasi-estoppel precludes a party from asserting, to another's disadvantage, a right inconsistent with a position
previously taken. Lopez v. Munoz, Hockema & Reed, LLP, 22 S.W.3d 857, 864 (Tex. 2000). Hourani contends
that Katzen took his deed with knowledge of the Restrictions and that, because he previously owned the lot
behind Lot 7, Katzen purchased Lot 7 with the intent to keep anyone from building on it. Hourani contends that
all of the property owners in Carlton Park depended on such position when they built their homes.

Katzen contends that there is no evidence that he had knowledge when he purchased Lot 7 that the
Restrictions would be interpreted in a way that would preclude all access to the lot and that there is no
evidence that he intended to never build on Lot 7.

Hourani's summary judgment evidence does not address Katzen's knowledge in this regard or present any
evidence of an intent by Katzen to relinquish his rights. Hence, Hourani failed to meet his burden to present
evidence raising a genuine issue of material fact as to the element specified in Katzen's motion. See Tamez,
206 S.W.3d at 582. Hence, summary judgment was proper on this point.

2. Waiver

In his motion for no-evidence summary judgment, Katzen asserted that there is no evidence to support an
element of Hourani's waiver defense.

The elements of waiver are: (1) an existing right, benefit, or advantage; (2) actual or constructive notice of its
existence; (3) an actual intent to relinquish that right. Tenneco Inc. v. Enterprise Products Co., 925 S.W.2d
640, 643 (Tex. 1996). Ordinarily, the issue of waiver is a question of fact. Id. When, however, facts are clearly
established and are undisputed, waiver becomes a question of law. Id.

Here, Katzen asserts that there is no evidence that he had actual or constructive knowledge that the
Restrictions would be interpreted to deny him all access to Lot 7 or that he intentionally relinquished his rights
in that regard.

Hourani's summary judgment evidence does not address Katzen's knowledge in this regard or show anything
that demonstrates an intent to relinquish his rights. Hence, Hourani failed to meet his burden to present
evidence raising a genuine issue of material fact as to the elements specified in Katzen's motion. See Tamez,
206 S.W.3d at 582. We conclude that summary judgment is proper on this point.

Accordingly, Hourani's second issue is overruled.

Attorney's Fees

In his fourth issue, Hourani contends "that the trial court's award of attorney's fees and costs to Katzen was/is
inequitable or unjust" and that the assessment of the award against only Hourani, to the exclusion of the other
defendants, is likewise inequitable or unjust.

Pursuant to Civil Practice & Remedies Code section 37.009, the trial court may award costs and reasonable
and necessary attorney's fees as are equitable and just. Tex. Civ. Prac. & Rem. Code Ann. § 37.009 (Vernon
2008). We review the trial court's award of attorney's fees under an abuse of discretion standard, subject to
the requirement that fees awarded must be reasonable and necessary, which are matters of fact, and to the
additional requirements that fees be equitable and just, which are matters of law. Everest Exploration, Inc. v.
URI, Inc., 131 S.W.3d 138, 144 (Tex. App.--San Antonio 2004, no pet.). The trial court has broad discretion to
determine whether to grant costs and attorney's fees under the DJA, and we will not reverse that judgment on
appeal absent a clear showing of abuse. Oake v. Collin County, 692 S.W.2d 454, 455 (Tex. 1985). We view the
evidence in the light most favorable to the trial court's ruling. Id.

Here, Katzen sued all of the property owners--Hourani, Urban/Duganier, Cruce, and the Nigrams. The trial
court awarded Katzen $38,251.25 in attorney's fees solely against Hourani.

Hourani contends that there is "no basis" for the trial court's conclusion that the attorney's fees were equitable
and just. In addition, Hourani contends that "there is no evidence in the Record which indicates, much less
demonstrates, that Hourani, alone, vagrantly and unreasonably attempted to restrain Katzen."

In his motion for summary judgment, Katzen asserted that, of all the defendants, only Hourani has actively
opposed Katzen's right to any access to his property. In Katzen's affidavit, which he appended to his motion
summary judgment as evidence, he attested that "[the Nigrams], the owners of Lot 8, did not make any
objection to any plans for access to my lot"; "[Urban and Duganier], the owners of Lot 6, did object to the plans
but did not assert that I was not entitled to access my lot"; "In a letter dated September 16, 2004, [Hourani]
through counsel threatened to sue me and attempt to obtain an injunction in the event that I attempted to
access my lot." In his affidavit, Sprouse attested to the same facts. Katzen attached to his motion the letters
from Urban/Duganier and Hourani, and the affidavits of his counsel attesting to the reasonable and necessary
attorney's fees incurred by Katzen.

In his response to the motion for summary judgment, Hourani did not address attorney's fees.

In their response to the motion, defendants Urban, Duganier, and Cruce "agree[d] that [Katzen] should be
allowed reasonable access to his property" and were amenable to the appointment of the Master to resolve the
access issue. The record shows that Katzen did not seek attorney's fees against the other defendants. Hence,
the trial court's award of awarding attorney's fees solely against Hourani did not constitute an abuse of
discretion.

Accordingly, Hourani's fourth issue is overruled.

CONCLUSION

We affirm the judgment of the trial court.

Laura Carter Higley  

Justice

Panel consists of Justices Jennings, Higley, and Sharp.


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