Opinion
No. 05-03-01753-CV
Opinion Filed August 16, 2004.
On Appeal from the 401st Judicial District Court, Collin County, Texas, Trial Court Cause No. 401-1624-02.
Affirmed.
Before Chief Justice THOMAS and Justices MORRIS and WHITTINGTON.
MEMORANDUM OPINION
In this case involving restrictive covenants, Steven Chen and Sherry L. Chen (the Chens) appeal the trial court's summary judgment in favor of Breckinridge Estates Homeowners Association, Inc. (the Association). In four issues, the Chens argue (1) there was a disputed fact issue about whether they removed the offending structure and whether they requested approval from the Architectural Control Committee and (2) an affidavit was not adequate summary judgment evidence. We affirm the trial court's judgment.
Summary Judgment Evidence
In their third and fourth issues, the Chens complain that Bill Hyde's affidavit, which was filed with the Association's summary judgment motion, was not adequate summary judgment evidence. In their third issue, the Chens argue Hyde's affidavit contained unsubstantiated opinion. Specifically, the Chens complain Hyde did not state "what entity, if any, had determined that any structure" was nonconforming. Because Hyde's affidavit states "what entity" determined the Chens' structure was nonconforming, we conclude this portion of their third issue lacks merit.
The Chens also complain about Hyde's reference to letters sent to the Chens because of the dates of the letters. They argue the letters preceded the commencement of any construction of the structure. The Chens do not explain how this constitutes unsubstantiated opinion nor do they cite any authority in support of this argument. We decline to make their argument for them. See Tex.R.App.P. 38.1(h). We resolve the Chens' third issue against them.
In their fourth issue, the Chens argue Hyde's affidavit was by an interested witness but not clear, positive, direct, credible, or free from contradiction and could not be easily controverted. A party must object in writing to the form of summary judgment evidence and place the objections before the trial court, or its objections will be waived. Grand Prairie I.S.D. v. Vaughan, 792 S.W.2d 944, 945 (Tex. 1990). An objection that an affidavit was made by an interested witness but not clear, positive, direct, credible, or free from contradiction and could not be easily controverted is an objection to form. See Choctaw Properties, LLC v. Aledo I.S.D., 127 S.W.3d 235, 241 (Tex. App.-Waco 2003, no pet.); WTFO, Inc. v. Braithwaite, 899 S.W.2d 709, 721 (Tex. App.-Dallas 1995, no writ). Nothing in the record indicates the Chens presented this objection to the trial court. Accordingly, they have waived their complaint. We resolve the Chens' fourth issue against them.
Summary Judgment Merits
The standards for reviewing a summary judgment are well established. The party moving for summary judgment has the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. See Tex. R. Civ. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true and every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in its favor. Nixon, 690 S.W.2d at 548. We consider only the record as it existed prior to the granting of summary judgment. See Black v. Wills, 758 S.W.2d 809, 818 (Tex. App.-Dallas 1988, no writ).
In their first and second issues, the Chens contend the court erred in granting summary judgment in favor of the Association because disputed fact issues existed regarding whether the Chens (1) removed the allegedly offending structure and (2) requested approval from the Architectural Control Committee. We disagree.
The Association alleged that the Chens, who lived in Breckinridge Estates, had breached a restrictive covenant contained in the Declaration of Covenants, Conditions and Restrictions for Breckinridge Park Estates. Article IV, § 5.3 of the declaration states that "no building, fence, wall or other structure shall be commenced, erected, placed, maintained or altered on any lot . . . until all plans have been . . . submitted to and approved in writing by a majority of the members of the [Architectural Control] Committee." The Association argued that the Chens built a structure on their property without submitting plans to or receiving written approval from the Architectural Control Committee. The Association brought this legal action against the Chens seeking an injunction ordering the Chens to remove the structure, civil damages, and attorneys' fees.
In their first issue, the Chens argue a fact issue existed because the offending structure had been removed. However, the affidavit filed with their response to the Association's motion for summary judgment merely states the structure had been modified, not removed. The Chens allege the Association "acknowledged . . . the structure had been removed," citing paragraph VIII of the Association's first amended petition. Notwithstanding that pleadings do not constitute summary judgment proof, paragraph VIII of the Association's first amended petition contains no such acknowledgment. The Chens also cite an affidavit filed in their motion for new trial, but we consider only the record as it existed prior to the granting of summary judgment. See Black, 758 S.W.2d at 818. There was no summary judgment evidence before the trial court that the Chens had removed the offending structure. We resolve the Chens' first issue against them.
In their second issue, the Chens argue a fact issue existed because they had "faxed a request for approval by the Architectural Control Committee . . . to counsel for [the Association]." This assertion, however, does not change the undisputed fact that they had built the structure without submitting plans and without receiving written approval. Thus, any fact issue regarding whether the Chens requested approval is irrelevant to the case before the trial court. We resolve the Chens' second issue against them.
The court did not err in granting summary judgment to the Association. We affirm the trial court's judgment.