Henke
v.
Fuller

This case is not covered by Casetext's citator
Court of Appeals of Texas, Fourth District, San AntonioApr 27, 2005
No. 04-04-00409-CV (Tex. App. Apr. 27, 2005)

No. 04-04-00409-CV

Delivered and Filed: April 27, 2005.

Appeal from the 216th Judicial District Court, Gillespie County, Texas, Trial Court No. 9901, Honorable Stephen B. Ables, Judge Presiding.

Affirmed.

Sitting: Catherine STONE, Justice, Sarah B. DUNCAN, Justice, Phylis J. SPEEDLIN, Justice.


MEMORANDUM OPINION


The appellants are landowners in an area known as Pedernales Estates. The appellants seek to enforce a restrictive covenant against Carl G. Fuller that prohibits any landowner in the area from placing a mobile home on any tract of land. The trial court concluded that the appellants' lawsuit was barred by limitations and laches and that the appellants waived their right to enforce the restrictive covenant. We affirm the trial court's judgment.

Background

Fuller purchased two tracts of land in Perdenales Estates in 1973. A few years later, Fuller purchased a building which was approximately forty feet long and twelve to thirteen feet wide. Fuller purchased the building from a chemical company in Houston which had used the building for a break room for their tank farm employees. The building was brought to Fuller's property on a trailer. The building had restrooms and was connected to a septic tank system. Fuller testified that none of the appellants had confronted him about moving the building onto his property.

In January of 2003, Fuller moved a mobile home onto his property to replace the existing building and subsequently removed the old building. The mobile home was brought to the property on wheels, but the wheels were subsequently removed. The old building was later hauled off on a trailer. The mobile home was placed in the same location on the property as the old building. Fuller replaced the old building because it was getting old, and the winds had taken the roof off. Fuller stated that the old building was dilapidated and had become an eyesore. Fuller was surprised when the other landowners objected to the mobile home because he considered it to be an upgrade from the old building. Fuller had stayed overnight in the old building, but an injunction prevented him from staying overnight in the mobile home. Fuller intended to use the mobile home in the same manner as the old building.

Dennis Dean Kusenberger, a real estate broker, testified that mobile homes generally decreased the property values of adjacent land. Kusenberger testified that the old building on Fuller's property was a portable building. Kusenberger agreed that the portable building was on the property for a period in excess of twenty years. Kusenberger distinguished a portable building, which was transported on a trailer, from a mobile home, which was transported on axles. Kusenberger testified that the restrictive covenant, which he assisted in drafting, was only intended to restrict mobile homes, not portable buildings. Kusenberger testified that portable buildings are generally used for storage or as a weekend home. Kusenberger estimated that the values of the properties adjoining Fuller's property would decrease by 25% based on the location of the mobile home. During cross-examination, however, Kusenberger admitted that the property across the street from Fuller's property sold for almost twenty thousand dollars more than the value at which it appraised in January of 2003, and the property was sold after Fuller had moved the mobile home onto his property.

Dennis Ray Henke testified that he called Fuller shortly after he moved the old portable building onto his property because the building was less than the 1200 square feet required in another restrictive covenant. Henke stated that Fuller just ignored the complaint. Henke did not consider the old portable building to be a mobile home. The portable building was built on skids, consisting of large timbers or I-beams, and was probably 12 to 14 feet wide and 30 to 40 feet long. Henke agreed that the portable building had been on the property in excess of twenty years. Henke admitted testifying in his deposition that if he had to choose, he would rather have the newer structure than the old portable building. Henke also admitted that the appraised value of his property increased from 2002 to 2003. Henke stated that he attached significance to the fact that the portable building was brought to the property on a trailer while the mobile home was brought to the property on wheels that were directly attached to the mobile home.

David Wehmeyer testified that the portable building did not put him on notice that Fuller would later be able to move a mobile home onto his property. Wehmeyer admitted that the appraised value of his property had increased from 2002 to 2003.

Gordon D. Klein testified that one other family had attempted to move a mobile home onto their land. After the landowners spoke with the family, they removed the mobile home. Klein characterized the first building on Fuller's property as a storage building. The building did not provide Klein with notice that Fuller could later move a mobile home onto his land. Klein agreed that the first building was on the property for twenty years and that Fuller resided in the building on an occasional basis. Klein agreed that the mobile home was placed at the same location as the old building. Klein also agreed that the appraised value of his property increased from 2002 to 2003. After Klein's testimony, the parties stipulated that four additional witnesses could be called who would testify in the same manner as the other appellants had testified. In addition to the testimony, pictures of the old building and the mobile home were introduced into evidence. The trial court requested post-trial briefs, and subsequently entered a judgment in favor of Fuller. In response to a request, the trial court entered detailed findings of fact and conclusions of law.

Standard of Review

The trial court's findings of fact carry the same force and dignity as a jury's verdict. M.D. Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991); McLaughlin, Inc. v. Northstar Drilling Technologies, Inc., 138 S.W.3d 24, 27 (Tex.App.-San Antonio 2004, no pet.). We review the trial court's fact findings the same way we review the legal and factual sufficiency of the evidence supporting a jury's verdict. M.D. Anderson, 806 S.W.2d at 794, McLaughlin, Inc., 138 S.W.3d at 27. In analyzing the legal sufficiency of the evidence supporting a finding of fact, we examine the record for evidence and inferences that support the challenged finding and disregard all contrary evidence and inferences. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994), McLaughlin, Inc., 138 S.W.3d at 27. If more than a scintilla of evidence supports the findings, the legal sufficiency challenge cannot be sustained. Catalina, 881 S.W.2d at 297; McLaughlin, Inc., 138 S.W.3d at 27. When analyzing the factual sufficiency of the evidence, we consider all of the evidence in the record both for and against the finding. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); McLaughlin, Inc., 138 S.W.3d at 27. We will find the evidence factually insufficient if we conclude the finding is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain, 709 S.W.2d at 176; McLaughlin, Inc., 138 S.W.3d at 27. As the trier of fact in a bench trial, the trial judge determines the credibility of the witnesses and the weight to be given their testimony, decides whether to believe or disbelieve all or any part of the testimony, and resolves any inconsistencies in the testimony. Lifshutz v. Lifshutz, 61 S.W.3d 511, 515 (Tex.App.-San Antonio 2001, pet. denied). When there is conflicting evidence, the appellate court usually regards the finding of the trier of fact as conclusive. Id.

Appellate courts review a trial court's conclusions of law as a legal question. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002). The appellate court reviews the trial court's legal conclusions drawn from the facts to determine their correctness. Id. If the reviewing court determines that a conclusion of law is erroneous, but the trial court rendered the proper judgment, the erroneous conclusion of law does not require reversal. Id.

Discussion

Both waiver and laches are affirmative defenses. Jim Rutherford Investments, Inc. v. Terramar Beach Community Ass'n, 25 S.W.3d 845, 852 (Tex.App.-Houston [14th Dist.] 2000, pet. denied). In order to establish waiver, Fuller had the burden of proving that the landowners voluntarily and intentionally relinquished their right to enforce the restrictive covenant. Colton v. Silsbee State Bank, 952 S.W.2d 625, 629 (Tex.App.-Beaumont 1997, no writ); Dempsey v. Apache Shores Property Owners Association, Inc., 737 S.W.2d 589, 595 (Tex.App.-Austin 1987, no writ). Although some cases examine waiver in the context of future enforcement of a restrictive covenant against any landowner, see Pebble Beach Property Owners' Ass'n v. Sherer, 2 S.W.3d 283, 288 (Tex.App.-San Antonio 1999, pet. denied), the Texas Supreme Court also has examined waiver in the context of the future enforcement of a restrictive covenant against a single landowner. Sharpstown Civic Ass'n, Inc. v. Pickett, 679 S.W.2d 956, 958 (Tex. 1984). In the latter context, the court examines whether an earlier violation of the covenant, which has been carried on without objection, is substantially different from the new violation. See id.; see also Colton, 952 S.W.2d at 629.

The two elements of laches are: (1) an unreasonable delay in asserting a legal or equitable right; and (2) a good faith change in position by another to his detriment because of the delay. Air Park-Dallas Zoning Committee v. Crow Billingsley Aipark, Ltd., 109 S.W.3d 900, 911 (Tex.App.-Dallas 2003, no pet.); Jim Rutherford Investments, Inc., 25 S.W.3d at 852. No unreasonable delay can be charged against the plaintiff until his cause of action has matured. Stergios v. Forest Place Homeowners' Association, Inc., 651 S.W.2d 396, 401 (Tex.App.-Dallas 1983, writ ref'd n.r.e.).

In this case, the trial court found that Fuller moved the first portable building onto his land during the 1970's and that the portable building was in violation of the applicable covenants. The trial court further found that the first portable building had become damaged. As a result, the trial court found that Fuller purchased a second portable building which he moved onto the land while the first portable building was still on the land. Finally, the trial court found that the use of the second portable building is identical in all material respects to the use of the first portable building. The trial court concluded, "There is no difference of any legal significance between the first portable building brought onto the property by the Defendant in the mid to late 1970's, and the second portable building/mobile home brought onto the property by the Defendant in 2003."

Having reviewed the testimony describing the two buildings and having reviewed the pictures of the buildings, we conclude that the evidence supports the trial court's findings, and we agree with the trial court's conclusion. Fuller's use of the property was not substantially different. Furthermore, although some of the witnesses labeled the first building a "storage shed," the evidence established that the building had a bathroom, was hooked up to utilities, and was attached to a septic system. The evidence further established that Fuller lived in the building on an occasional basis.

Terms used in a restrictive covenant must be given their commonly accepted meaning. Wilmoth v. Wilcox, 734 S.W.2d 656, 657-58 (Tex. 1987). Although the portable building was brought to the property on a trailer as opposed to being on attached wheels, the portable building was used as a dwelling, was attached to a septic system and utilities, and was readily transportable. Therefore, the portable building met the commonly accepted meaning of the term "mobile home."

Because the two buildings were substantially similar and Fuller's use of his land was identical, the appellants waived their right to enforce the restrictive covenant. See Sharpstown Civil Ass'n, Inc., 679 S.W.2d at 958. In addition, because Fuller purchased the second portable building, moved it onto his property, and removed the first portable building in good faith, the landowners' suit is barred by laches because the appellants delayed in asserting their right to object to the first building as being in violation of the restrictive covenants and Fuller changed his position in good faith. See Jim Rutherford Investments, Inc., 25 S.W.3d at 852. Because the trial court did not err in denying the appellants' requested injunctive relief, the trial court did not err in denying their request for attorney's fees.

Conclusion

The trial court's judgment is affirmed.