COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02-14-00282-CV FRANK REED AND KAREN REED APPELLANTS V. LAKE COUNTRY PROPERTY OWNERS ASSOCIATION, INC. APPELLEE ---------- FROM COUNTY COURT AT LAW NO. 3 OF TARRANT COUNTY TRIAL COURT NO. 2013-004939-3 ---------- MEMORANDUM OPINION 1 ---------- Appellants Frank Reed and Karen Reed appeal from the trial court s order granting Appellee Lake Country Property Owners Association, Inc. s (LCPOA) motion for summary judgment. We affirm in part and reverse and remand in part. 1 See Tex. R. App. P. 47.4.
I. BACKGROUND In 1997, the Reeds purchased lots 25 and 26 in block 10 of the Lake Country Estates subdivision (the property). The property is burdened by Dedications and Restrictions, which are binding on those who own property in Lake Country Estates and run with the land. Pertinent to this appeal, article XXIII of the deed restrictions provides as follows: No trailer, house car or other movable structure shall ever be parked or placed, temporarily or otherwise, on any lot. All boats, boat trailers or recreational campers may be stored on the premises so long as they are out of sight of the street fronting the residence. In December 2004, the Reeds purchased a recreational camper, which they parked in their driveway. By letter dated January 5, 2005, LCPOA s president notified the Reeds on behalf of LCPOA that they were violating the deed restrictions because the camper was visible from the street fronting the residence. The Reeds responded on January 9, 2005, admitting that the [camper s] current location is unacceptable and that they had been actively pursuing a proper arrangement. The Reeds informed LCPOA that they were extending an existing concrete pad and having a new gate fabricated to allow them to store the camper behind their existing fence. The Reeds stated that these improvements would be finished within the next two weeks. Shortly after sending the letter, Frank Reed contacted the president of LCPOA by telephone, again informed him of the Reeds improvement plans, and asked for input. 2
According to Mr. Reed, LCPOA raised no objections to the Reeds planned improvements. The Reeds completed the improvements in February 2005 and parked the camper in their backyard behind their fence when it was not in use. The camper was still visible from the street from some vantage points. By letter dated September 6, 2007, LCPOA informed the Reeds that upon a recent reinspection, it had determined that the deed restriction violation had not been corrected as the camper could still be seen from the street fronting the Reeds residence. In September 2007, the Reeds purchased an enclosed utility trailer for use in their business and parked it behind their fence beside the camper. The trailer was stolen in July 2012. The Reeds bought a new trailer a few months later and parked it behind their fence beside the camper. In September 2011, the Reeds and other Lake Country Estates property owners filed suit seeking declaratory and injunctive relief against LCPOA, alleging (1) that LCPOA did not have the authority to enforce any restrictions because it was not a properly created Homeowners Association and (2) that even if LCPOA was legally created, property owners in Lake Country Estates had previously adopted a particular interpretation of the restriction involving boats, boat trailers, and recreational campers, and LCPOA was estopped from enforcing the restriction in a manner other than as previously interpreted by the property owners. Burkett v. Lake Country Prop. Owners Ass n, Inc., No. 02-13- 3
00090-CV, 2014 WL 1510137, at *1 (Tex. App. Fort Worth Apr. 17, 2014, no pet.) (mem. op.). The trial court granted summary judgment in favor of LCPOA on the property owners claims. Id. The property owners appealed, and this court affirmed the summary judgment. Id. at *1, 4. On August 13, 2013, LCPOA filed the instant suit, alleging that the Reeds were violating article XXIII of the deed restrictions by allow[ing] a trailer, house car or other movable structure to be parked or stored on the [p]roperty. LCPOA requested the issuance of a permanent injunction directing the Reeds to adhere to the deed restrictions and ordering the Reeds to remove the trailer, house car, or other movable structure from the property. LCPOA also requested statutory damages in the amount of $200 per day for each day the court determined the Reeds were in violation of the deed restriction, see Tex. Prop. Code Ann. 202.004(c) (West 2014) ( A court may assess civil damages for the violation of a restrictive covenant in an amount not to exceed $200 for each day of the violation. ), plus attorney s fees and costs of court, see id. 5.006(a) (West 2014) ( In an action based on breach of a restrictive covenant pertaining to real property, the court shall allow to a prevailing party who asserted the action reasonable attorney s fees in addition to the party s costs and claim. ). In their answer, the Reeds asserted the affirmative defenses that LCPOA s claims were barred by laches and limitations. See Tex. R. Civ. P. 94; see also Tex. Civ. Prac. & Rem. Code Ann. 16.051 (West 2015) ( Every action for which there is no express limitations period, except an action for the recovery of real 4
property, must be brought not later than four years after the day the cause of action accrues. ). LCPOA moved for traditional summary judgment, alleging that the Reeds were violating article XXIII of the deed restrictions (1) by allowing a trailer, house car, or other movable structure to be parked or stored on the property and (2) by allowing a recreational camper to be stored on the property in sight of the street fronting the property. The Reeds filed a response asserting the existence of genuine issues of material fact with respect to (1) whether the Reeds had violated the deed restrictions by storing a utility trailer and by parking a camper on the property, (2) the Reeds affirmative defenses, and (3) the reasonableness and necessity of LCPOA s attorney s fees. The trial court granted the motion and permanently enjoined the Reeds from (1) parking or placing, temporarily or otherwise, a trailer, house car, or other movable structure on the property and (2) storing a boat, boat trailer, or recreational camper on the property, unless the boat, boat trailer, or recreational camper is out of sight of the street fronting the residence on the property. The trial court also taxed court costs against the Reeds and awarded LCPOA $16,785 in attorney s fees, plus conditional appellate attorney s fees of $2,500 in the event LCPOA successfully opposed a motion for new trial filed by the Reeds; $8,500 in the event the Reeds unsuccessfully appealed to the court of appeals; $10,000 in the event the Reeds filed a petition for review with the supreme court; and $15,000 if the supreme court granted the Reeds petition for review and LCPOA prevailed. The Reeds 5
appealed, arguing that they raised genuine issues of material fact that barred summary judgment. II. STANDARDS OF REVIEW To obtain injunctive relief, a party must generally show (1) the existence of a wrongful act, (2) the existence of imminent harm, (3) the existence of irreparable injury, and (4) the absence of an adequate remedy at law. Jim Rutherford Invs., Inc. v. Terramar Beach Cmty. Ass n, 25 S.W.3d 845, 849 (Tex. App. Houston [14th Dist.] 2000, pet. denied). However, when an injunction is sought to enforce a restrictive covenant, the movant is not required to show proof of irreparable injury, but instead need only show that the defendant intends to do an act that would breach the covenant. Marcus v. Whispering Springs Homeowners Ass n, Inc., 153 S.W.3d 702, 707 (Tex. App. Dallas 2005, no pet.); Rutherford Invs., 25 S.W.3d at 849. Normally, we review a trial court s decision to grant or deny a permanent injunction for an abuse of discretion. Glattly v. Air Starter Components, Inc., 332 S.W.3d 620, 642 (Tex. App. Houston [1st Dist.] 2010, pet. denied). But when the trial court issues a permanent injunction in response to a party s motion for summary judgment, our review is governed by the summary judgment standards of review. See Bates v. Kingspark & Whitehall Civic Improvement Ass n, No. 01-11-00487-CV, 2012 WL 1564309, at *4 5 (Tex. App. Houston [1st Dist.] May 3, 2012, no pet.) (mem. op.); Rutherford Invs., 25 S.W.3d at 848 49. 6
We review a summary judgment de novo. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). We consider the evidence presented in the light most favorable to the nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors could and disregarding evidence contrary to the nonmovant unless reasonable jurors could not. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We indulge every reasonable inference and resolve any doubts in the nonmovant s favor. 20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008). A plaintiff is entitled to summary judgment on a cause of action if it conclusively proves all essential elements of the claim. See Tex. R. Civ. P. 166a(a), (c); MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986). When the movant has established the absence of any genuine issue of material fact as to its own cause of action, the nonmovant cannot defeat the granting of a motion for summary judgment by merely pleading an affirmative defense. Holmes v. Graham Mortg. Corp., 449 S.W.3d 257, 264 (Tex. App. Dallas 2014, pet. denied); Jones v. Legal Copy, Inc., 846 S.W.2d 922, 924 (Tex. App. Houston [1st Dist.] 1993, no writ). Instead, the nonmovant must come forward with evidence sufficient to raise an issue of fact on each element of the defense to avoid summary judgment. Holmes, 449 S.W.3d at 264 (quoting Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984)). Thus, once the movant produces evidence entitling it to summary judgment on its own cause of action, the burden shifts to the nonmovant to raise a fact issue on its affirmative 7
defense. Brownlee, 665 S.W.2d at 112; Tarrant Restoration v. TX Arlington Oaks Apartments, Ltd., 225 S.W.3d 721, 730 (Tex. App. Dallas 2007, pet. dism d w.o.j.). III. ANALYSIS A. Violation of the deed restrictions In its motion for summary judgment, LCPOA argued that the Reeds were violating article XXIII of the deed restrictions by allowing a trailer, house car, or other movable structure to be parked or stored on the property and that res judicata barred the Reeds from arguing that the word trailer in the deed restriction was ambiguous because the Reeds should have raised this argument in the 2011 lawsuit. 2 The summary judgment evidence showed, and the Reeds did not dispute, that they had been parking a utility trailer on their property. The Reeds argued in their summary judgment response that there was a genuine issue of material fact as to whether they had violated the deed restrictions by storing the utility trailer on the property because the term trailer was ambiguous. The Reeds also argued that LCPOA failed to establish the third element of res judicata that the second action was based on the same claims that were raised 2 LCPOA also moved for summary judgment in this case on the grounds that the Reeds violated the second sentence of article XXIII of the deed restrictions by storing their camper on their property in sight of the street fronting their residence. The Reeds did not complain in the trial court nor do they complain on appeal that this claim was not pled. Moreover, the Reeds do not complain on appeal that they did not violate the second sentence of article XXIII. Thus, we do not address these issues. See Tex. R. App. P. 33.1(a), 38.1(f). 8
or could have been raised in the first action. See Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 652 (Tex. 1996). On appeal, the Reeds argue in their third issue that the trial court erred in applying the doctrine of res judicata because the 2011 action only sought a determination of LCPOA s ability to enforce the deed restrictions and did not involve the issue of the interpretation of the word trailer as used in the deed restrictions. They further argue that because res judicata does not apply, the trial court should have addressed their ambiguity argument. We review a trial court s interpretation of a restrictive covenant de novo. Leake v. Campbell, 352 S.W.3d 180, 184 (Tex. App. Fort Worth 2011, no pet.). A covenant is unambiguous as a matter of law if it can be given a definite or certain legal meaning. Pilarcik v. Emmons, 966 S.W.2d 474, 478 (Tex. 1998); Leake, 352 S.W.3d at 184. Mere disagreement over the interpretation of a restrictive covenant does not render it ambiguous. Leake, 352 S.W.3d at 184. We construe restrictive covenants in accordance with general rules of contract construction. Pilarcik, 966 S.W.2d at 478; Leake, 352 S.W.3d at 184. As when interpreting any contract, the court s primary task is to determine the drafter s intent from the instrument s language. Wilmoth v. Wilcox, 734 S.W.2d 656, 658 (Tex. 1987). In ascertaining the drafter s intent, we must examine the covenant as a whole in light of the circumstances present when the covenant was made. Pilarcik, 966 S.W.2d at 478. Words used in a restrictive covenant may not be enlarged, extended, stretched, or changed by construction; words 9
and phrases used in the covenant must be given their commonly accepted meaning. Wilmoth, 734 S.W.2d at 657 58; Dyegard Land P ship v. Hoover, 39 S.W.3d 300, 308 (Tex. App. Fort Worth 2001, no pet.). All doubts must be resolved in favor of the free and unrestricted use of the premises, and a restrictive clause must be construed strictly against the party seeking to enforce it. Wilmoth, 734 S.W.2d at 657 58; Dyegard, 39 S.W.3d at 308 09. Finally, an unambiguous restrictive covenant should be liberally construed to give effect to its purpose and intent. Tex. Prop. Code Ann. 202.003(a) (West 2014); Leake, 352 S.W.3d at 184. The Reeds argued in their summary judgment response that the word trailer was ambiguous, that LCPOA failed to offer any proof that Lake Country Estate s developer intended that the term trailer include utility trailers, and that it appears from the restriction s language that the intent of the prohibition against trailers, house cars, and other moveable structures was to prevent a temporary residence from being placed and used on a lot. Trailer, house car, and moveable structure are not defined in the deed restrictions. Trailer is commonly defined as a vehicle or one in a succession of vehicles hauled usu. by some other vehicle... as a: a car on a streetcar line pulled by another car b: a light 2-wheeled car pulled (as by a bicycle or motorcycle) c: a nonautomotive highway or industrial-plant vehicle designed to be hauled (as by a tractor, motor truck, or passenger automobile)... an automobile-drawn highway vehicle designed to serve wherever it is parked as a dwelling or as a place of business (as an office, laboratory, or field headquarters). 10
Webster s Third New International Dictionary 2424 (2002). A house car is an enclosed freight car (as a boxcar, refrigerator car, stockcar) and a railroad car for handling goods to be loaded or unloaded at a freight house. Id. at 1096. A structure is something constructed or built, id. at 2267, and moveable means capable of being moved and not fixed, id. at 1479. We conclude that the language in the deed restriction is unambiguous and that it prohibited the Reeds from parking their utility trailer on the property. Thus, LCPOA was entitled to summary judgment as a matter of law on its claim that the Reeds violated the deed restriction by parking the utility trailer on the property. We need not address whether the Reeds ambiguity argument was barred by res judicata because when, as here, the trial court s order granting summary judgment does not specify the ground or grounds relied on for its ruling, summary judgment will be affirmed on appeal if any of the theories advanced are meritorious. See Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995). We overrule the Reeds third issue. B. Limitations The Reeds argue in their first issue that the trial court erred by granting summary judgment because their summary judgment evidence was sufficient to raise a fact issue on their limitations affirmative defense. Actions to enforce restrictive covenants are controlled by a four-year statute of limitations. Air Park- Dallas Zoning Comm. v. Crow-Billingsley Airpark, Ltd., 109 S.W.3d 900, 911 (Tex. App. Dallas 2003, no pet.) (citing Malmgren v. Inverness Forest 11
Residents Civic Club, Inc., 981 S.W.2d 875, 877 (Tex. App. Houston [14th Dist.] 1998, no pet.)); see Tex. Civ. Prac. & Rem. Code Ann. 16.051. A cause of action to enforce a deed restriction accrues upon the breach of the restrictive covenant. Fox v. O Leary, No. 03-11-00270-CV, 2012 WL 2979053, at *6 (Tex. App. Austin July 10, 2012, pet. denied) (mem. op.) (citing Girsch v. St. John, 218 S.W.3d 921, 925 (Tex. App. Beaumont 2007, no pet.)). However, once a violation of a restrictive covenant has ceased, the enforceability of the restrictive covenant is renewed, and limitations does not bar enforcement of any future violations. Id.; see Daniels v. Balcones Woods Club, Inc., No. 03-03-00310-CV, 2006 WL 263589, at *5 (Tex. App. Austin Feb. 2, 2006, pet. denied) (mem. op.) ( When a restrictive covenant is initially violated, but that violation ceases, limitations does not bar future enforcement of the covenant. ); Schoenhals v. Close, 451 S.W.2d 597, 599 (Tex. Civ. App. Amarillo 1970, no writ) ( If the violation [of the restrictive covenant] ceases, the covenant will once more become effective and will bar any future violations. ). LCPOA filed this suit on August 13, 2013. The Reeds contend that limitations on LCPOA s claims began to run on January 5, 2005, when LCPOA notified the Reeds that they were violating the deed restrictions because the camper was visible from the street fronting the residence. Under this theory, limitations expired on January 5, 2009. The Reeds further contend that the infrequent, temporary removal of the camper and the trailer did not stop and restart LCPOA s limitations period. The Reeds attempt to distinguish the cases 12
cited by LCPOA for the rule that when a restrictive covenant is initially violated but the violation ceases, limitations does not bar future enforcement of the covenant Schoenhals, Daniels, and Fox on their facts, arguing that limitations should begin accruing when a reasonable person should recognize that a deed restriction violation is occurring. In Schoenhals, the Schoenhalses and the Closes owned adjoining lots in a residential section of Perryton, Texas. 451 S.W.2d at 598. The deed restrictions governing both lots provided that only improvements used for residential purposes could be erected on the property. Id. In late 1959, Dave Schoenhals converted the inside of the Schoenhalses garage into a beauty shop, and the Schoenhalses daughter, Gloria Griggs, began operating the beauty shop in 1960. Id. Griggs stopped operating the shop commercially in 1964. Id. When Griggs made arrangements to resume commercial operation of the shop in July 1969, the Closes filed suit, and the trial court granted a temporary injunction in favor of the Closes. Id. On appeal, the Schoenhalses and Griggs argued that the suit was barred by limitations and laches. Id. at 598 99. The appellate court affirmed the trial court s judgment, stating that when Griggs ceased commercial operation of the shop in 1964, the four-year statute of limitations had run, and that, at that time, Griggs had the right to continue operation of the shop. Id. at 599 600. However, when Griggs ceased commercial operations in 1964 and then resumed operations in 1969, the neighbors once again had a cause of action and the statute of limitations began to run. Id. The court stated: 13
A restriction may become unenforceable with respect to a particular lot in a tract under the defenses of the statute of limitations, waiver, or laches. Even though a party has violated a restrictive covenant and is able to continue to do so under one of the foregoing defenses, the restrictive covenant will continue to exist, even if the violation as it exists, continues. If the violation ceases, the covenant will once more become effective and will bar any future violations. Any other result would, in effect, seriously impair the usefulness and value of restrictive covenants, as any prospective purchaser of a home in a residential area could never be certain that a previous violation of a restrictive covenant in the neighborhood had not rendered that covenant ineffective. Id. (citations omitted). In Daniels, a neighborhood association filed suit in March 2002 to enjoin Gregory Daniels from parking his Mazda 626 on his front lawn in violation of the deed restrictions. 2006 WL 263589, at *1 2. After a bench trial on the merits, the trial court issued a permanent injunction requiring Daniels to remove the Mazda. Id. On appeal, Daniels argued that the suit was barred by limitations and that the trial court erred by entering a conclusion of law that the association filed suit within the limitations period. Id. at *5. Daniels argued that limitations commenced in 1991 when he had begun parking a vehicle on his front lawn. Id. Daniels s neighbor agreed that Daniels had been parking cars on his front lawn since 1991 or 1992, and although the neighbor could recall certain specific vehicles that were parked on Daniels s front lawn, he could not recall when or how long they were parked there. Id. at *4, *5. Daniels admitted that he began parking the Mazda 626 the car at issue in the case on his front lawn in 2001. Id. at *5. The court of appeals concluded that, based on the evidence, Daniels 14
failed to establish his limitations affirmative defense by showing that limitations commenced more than four years prior to the neighborhood association filing the lawsuit. Id. The court cited Schoenhals for the proposition that [w]hen a restrictive covenant is initially violated, but that violation ceases, limitations does not bar future enforcement of the covenant. Id. In a footnote, the court of appeals noted that even if the neighborhood association had notice that cars had been parked in the same location on Daniels s lawn since 1991, the record [did] not contain sufficient evidence of a continuous violation which may have implicated the statute of limitations. Id. at *5, n.9. In Fox, the trial court concluded that Jeffrey A. Fox s request for a permanent injunction against his neighbor, James F. O Leary, Jr., arising out of Fox s claims that O Leary s construction of a home on his lot violated the setback provisions in the deed restrictions was barred by laches. 2012 WL 2979053, at *1. O Leary s original home, which was built in the 1960s, encroached upon the setback provisions prescribed by the deed restrictions. Id. at *6. The home was destroyed by fire in October 2007. Id. at *1. O Leary began construction on his new home in January 2010. Id. Fox sued O Leary, claiming that O Leary s new home also violated the setback provisions in the deed restrictions. Id. at *2. The court of appeals disagreed that Fox s claim for breach of the restrictive covenant was barred by laches, and in addressing O Leary s crosspoints, held that Fox s claims were not barred by limitations. Id. at *5 6. Citing Schoenhals and Daniels, the court stated that once a violation of a restrictive covenant has 15
ceased, the enforceability of the restrictive covenant is renewed, and limitations does not bar enforcement of any future violations. Id. at *6. The court concluded that, therefore, even if O Leary s previous home violated the deed restrictions, that violation ceased when the house was destroyed in 2007 and that the statute of limitations applicable to the new deed restriction violations began to run in 2010 when construction of the new home began. Id. The Reeds cite Hidden Valley Civic Club v. Brown, 702 S.W.2d 665 (Tex. App. Houston [14th Dist.] 1985, no writ) and Sharpstown Civic Ass n, Inc. v. Pickett, 667 S.W.2d 840 (Tex. App. Houston [14th Dist.]), rev d on other grounds, 679 S.W.2d 956 (Tex. 1984), to support their contention that the infrequent, temporary removal of the camper and the trailer did not stop and restart LCPOA s limitations period and that limitations should begin accruing when a reasonable person should recognize that a deed restriction violation is occurring. We disagree that those cases stand for the latter proposition, but we agree with the Reeds that their cases support the proposition that limitations does not always begin to run anew after a temporary removal or cessation of a restrictive covenant violation. In Hidden Valley Civic Club, the Browns purchased a recreational camper in April 1979 and parked it on their property in the Hidden Valley subdivision. 702 S.W.2d at 666 67. They used the camper for transportation on a daily basis. Id. at 668. In September 1984, the Hidden Valley Civic Club sent them written notice that parking the camper on their property violated the subdivision s 16
deed restrictions. Id. at 666. The civic club filed suit against the Browns and sought a temporary injunction to enjoin them from parking the camper at their home, which the trial court denied. Id. The Browns testified that they had purchased the camper in April 1979 and had parked the camper on their property since that time, while the civic association s vice president of deed restrictions testified that he first noticed the Browns camper on their property in September 1984. Id. at 667, 668. The court of appeals concluded that the trial court did not abuse its discretion in basing its decision denying the civic association s request for temporary injunction on conflicting evidence as to whether the civic association s suit was barred by limitations. Id. at 668. In Sharpstown Civic Ass n, the deed restrictions for the Sharpstown Country Club Terrace neighborhood provided that the land could only be used for residential purposes. 667 S.W.2d at 841. In 1969, the owner of two adjoining lots in the neighborhood moved a small office structure onto one of the lots and used it as a real estate office. Id. At various times, the owner shared the office with an insurance salesman and an attorney. Id. This use continued until November 1979, when the lots were sold to Ronald I. Pickett. Id. Within a week after he purchased the property, Pickett began conducting business on the property. Id. Shortly thereafter, he erected a sign announcing that the two lots would be used as a commercial car wash. Id. The civic association and several lot owners brought suit against Pickett, seeking to enjoin him from violating the deed restrictions. Id. The trial court entered judgment on the jury s verdict that 17
enforcement of the covenants was barred by the statute of limitations and waiver and denied the request for a permanent injunction. Id. at 841 42. On appeal, the civic association and the lot owners argued that the trial court erred in denying their motion for judgment notwithstanding the verdict and their motion to disregard the jury s finding on limitations because the business use of the property was not continuous as a matter of law. Id. at 842 43. They argued that when the property was sold to Pickett, there was a one-week gap in its commercial use, which defeated Pickett s limitations affirmative defense. Id. at 842 45. The appellate court disagreed, found there was no gap in the commercial use of the land, stating that the land in question... has never been used for residential purposes; rather, it has been used for business purposes continuously since 1969. Id. at 844. The court further stated that [t]he mere fact that a week may have lapsed during the transition period between [the previous owner s] real estate office and Pickett s car wash office is not sufficient to justify a finding that the statute of limitations began to run anew in November of 1979. Id. The court of appeals concluded that the suit was barred by limitations. Id. at 845. 3 With these cases in mind, we turn to the facts of this case. First, we address the Reeds contention that the statute of limitations had expired for 3 The Texas Supreme Court reversed the court of appeals and rendered judgment in favor of the civic association and the other property owners on other grounds without discussing or considering the limitations issue. 679 S.W.2d at 959. 18
LCPOA s claim that they had violated the deed restrictions by storing their trailer on the property because they had been continuously parking a utility trailer on their property since September 2007. The summary judgment evidence showed that the Reeds purchased a utility trailer in September 2007, which they parked beside the camper on their property. The Reeds used the trailer multiple times a year, and each time they used it, they removed it from the property, usually for just a day. The Reeds original trailer was stolen in July 2012. They purchased the trailer at issue in this case a few months later and parked it behind their fence beside the camper. LCPOA filed suit in August 2013, less than a year after the Reeds began parking the subsequently acquired trailer on the property. We conclude that the trailer at issue in this case is like the Mazda 626 in Daniels in that it, not the trailer stolen in July 2012, gave rise to the deed restriction violation and that, therefore, the Reeds failed to raise a fact issue showing that limitations commenced more than four years prior to the time LCPOA filed suit. See Daniels, 2006 WL 263589, at *5 & n.9. Accordingly, the trial court did not err by granting LCPOA s motion for summary judgment on LCPOA s claim that the Reeds violated the deed restrictions by parking a trailer on their property. We therefore overrule the Reeds first issue to the extent that it challenges the trial court s granting of LCPOA s motion on this ground. We reach a different conclusion with respect to the camper. The summary judgment evidence showed that the Reeds purchased the recreational camper in December 2004 and began parking it on their property then. The Reeds 19
removed the camper from the property four to five times each year for trips ranging from two days to two weeks. We believe that based on the case law and the summary judgment evidence presented, the statute of limitations on LCPOA s claim that the Reeds violated the deed restrictions by storing their camper on their property in sight of the street fronting their residence began to run no later than January 5, 2005, when LCPOA notified the Reeds that they were violating the deed restrictions, and continued to run until it expired on January 5, 2009, because the camper was continuously stored on the property except when the Reeds removed it for short periods of time. The facts of this case make it distinguishable from the cases cited by LCPOA Schoenhals and Fox because those cases involved more permanent violations of restrictive covenants: Schoenhals involved the operation of a business in violation of the restrictive covenants and Fox involved a residence constructed in violation of the restrictive covenants. This case, like Hidden Valley Civic Club, involves a camper that can be driven off the property for use for a few hours or days at a time. Thus, we decline to extend the rule recited in Schoenhals and Fox when the initial violation of a restrictive covenant ceases, limitations does not bar the enforcement of any future violations to this case for the reason that the temporary removal of the camper from the property from time to time did not result in a cessation of the Reeds violation of the deed restriction. We cannot conclude that these brief periods were of sufficient length to effectively restart the running of limitations each time the camper was returned to 20
the property. Cf. Sharpstown Civic Ass n, 667 S.W.2d at 844 (concluding that a one-week gap in commercial use was insufficient to justify a finding that limitations began to run anew). Therefore, the Reeds raised a fact issue on their limitations defense with respect to the camper. Accordingly, we conclude and hold that the trial court erred by granting LCPOA s motion for summary judgment on LCPOA s claim that the Reeds violated the deed restrictions by storing their camper on their property in sight of the street fronting their residence and by permanently enjoining them from storing a boat, boat trailer, or recreational camper on the property, unless the boat, boat trailer, or recreational camper is out of sight of the street fronting the residence on the property. We therefore sustain the Reeds first issue to the extent that it challenges the trial court s granting of LCPOA s motion on this ground. C. Laches In their second issue, the Reeds argue that the trial court erred by granting summary judgment because their summary judgment evidence was sufficient to raise a fact issue on their laches affirmative defense for the reason that LCPOA was aware of the Reeds proposed construction plans to remedy the deed restriction violation with respect to the camper but failed to object. But because we have concluded that the Reeds raised a fact issue on their limitations defense with respect to LPCOA s claim related to the camper, which requires reversal of the summary judgment on that claim and remand to the trial court, and because 21
the Reeds did not raise laches as a defense to LCPOA s claim that parking the utility trailer on their property violated the deed restrictions, we need not address this issue. See Tex. R. App. P. 47.1. D. Attorney s fees The trial court awarded LCPOA $16,785 in trial attorney s fees, plus conditional appellate attorney s fees. See Tex. Prop. Code Ann. 5.006(a) (requiring a trial court to award attorney s fees to prevailing party in action based on breach of restrictive covenant). Because we are reversing the summary judgment in part, dissolving one of the two injunctions, and remanding LCPOA s claim regarding the camper to the trial court, we reverse the award of attorney s fees and remand to the trial court for further proceedings. See Webb v. Glenbrook Owners Ass n, Inc., 298 S.W.3d 374, 392 (Tex. App. Dallas 2009, no pet.) (affirming in part, reversing and rendering in part, and reversing and remanding in part injunction entered against homeowner, and remanding for further proceedings on injunctive relief and association s request for attorney s fees). Thus, we need not address the Reeds fourth issue, which challenges the reasonableness of the $16,785 in trial attorney s fees. See Tex. R. App. P. 47.1. IV. CONCLUSION Having overruled the Reeds third issue and having sustained the Reeds first issue in part, we affirm the trial court s order granting summary judgment in favor of LCPOA on its claim that the Reeds violated the deed restrictions by parking their utility trailer on their property and permanently enjoining the Reeds 22
from parking or placing, temporarily or otherwise, a trailer, house car, or other moveable structure on the property. See Tex. R. App. P. 43.2(a). We reverse the remainder of the trial court s order; dissolve the permanent injunction enjoining them from storing a boat, boat trailer, or recreational camper on the property, unless the boat, boat trailer, or recreational camper is out of sight of the street fronting the residence on the property; and remand the case for further proceedings consistent with this opinion. See Tex. R. App. P. 43.2(d), 43.3(a). /s/ Anne Gardner ANNE GARDNER JUSTICE PANEL: LIVINGSTON, C.J.; GARDNER and SUDDERTH, JJ. DELIVERED: July 7, 2016 23