Opinion
06-21-00092-CV
06-16-2022
OSAMAH M. YACOUB, Appellant v. THE CITY OF HOUSTON, Appellee
Submitted: April 26, 2022
On Appeal from the 189th District Court Harris County, Texas Trial Court No. 2020-40268
Before Morriss, C.J., Stevens and van Cleef, JJ.
MEMORANDUM OPINION
STEVENS JUSTICE
Osamah M. Yacoub appeals the grant of summary judgment in favor of the City of Houston permanently enjoining him from violating restrictive covenants and requiring him to remove the residential addition to the second floor of his residence to comply with the covenants. Because the City was entitled to summary judgment as a matter of law, we affirm the trial court's judgment.
I. Factual and Procedural Background
Yacoub purchased the property located at 2411 West TC Jester Boulevard (the Property) in Houston on July 31, 2019. The Property was located in a subdivision known as "LAZYBROOK, SECTION FIVE." Consequently, it was subject to certain restrictive covenants executed in 1959 and filed of record in the deed records of Harris County. One such covenant provided,
Originally appealed to the Fourteenth Court of Appeals in Houston, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See Tex. Gov't Code Ann. § 73.001. We are unaware of any conflict between precedent of the Fourteenth Court of Appeals and that of this Court on any relevant issue. See Tex. R. App. P. 41.3.
No building shall be erected, altered, placed, or permitted to remain on any residential lot other than one detached single family dwelling not to exceed one story in height and a private garage for not more than three cars; except that residences not exceeding one and one-half (11/2) stories in height may be erected on any of the lots covered hereby, provided the Architectural Control Committee referred to below approves the lots upon which a one and one-half (11/2) story residence building may be erected, in addition to approving the plans and specifications therefor.
When Yacoub purchased the Property, it consisted of a lot with an abandoned house in poor condition. The roof leaked and some of the brick walls leaked and had caved in. Yacoub, the owner of Oakley Co-Builders, LLC, initially planned to repair the house but soon learned that a complete re-build was needed. Although the City of Houston issued a repair permit, it did not issue a permit for the re-build. Despite this fact, Yacoub went forward with the re-build.
In his business, Yacoub renovates houses and commercial properties. Having been in the construction business for over fifteen years, Yacoub also builds new homes.
In his brief, Yacoub contends that the City approved his re-build plans. Yacoub also makes this claim in his affidavit and states that exhibit A-2 is "proof of the approval of the permit." Exhibit A-2, issued by the Houston Public Works permitting center, appears to be a receipt for a building permit. It describes the project as a "RESIDENTIAL REMODEL & 250 SF ADDITION." The document explicitly states, "This is not a permit and does not authorize the holder to perform any work." Ultimately, three arrest warrants were issued for Yacoub, dated October 7, 2020, for the misdemeanor offenses of failing to comply with an order issued by the city building official, altering a structure without a permit, and installing electrical equipment without a permit.
In anticipation of re-building the home, Yacoub submitted an approval application form to the architectural control committee of the Lazybrook Civic Club of Houston on February 1, 2020. On February 11, 2020, the committee denied Yacoub's application, stating,
The deed restrictions created the architectural control committee to ensure compliance with the covenants.
The plans you submitted are not in compliance with the Restrictive Covenants. Your property is located in Section 5 which requires all buildings to be 100% brick or natural stone veneer. Section 5 also limits the size of structures to 1.5 stories and you are constructing a 2-story residence. It appears that square footage has been added to this residence on the 1st level (approx. 220 SF) and the 2nd level (approx. 1, 312 SF). It also appears that the front porch/roof overhang is constructed closer to the front lot line than the 35' building setback.
Unfortunately the Architectural Control Committee cannot grant variances on Deed Restrictions. Please resubmit plans to the committee showing a 1.5-story home with 100% brick veneer. You must also submit a site plan or survey showing the location of the building with respect to the property lines.
Enforcement of the Deed Restrictions, specifically the brick percentage requirement, is one of the main reasons why homes in Lazybrook maintain such high property values.
In response, Yacoub stated that he had personally driven through the neighborhood and observed several two-story homes and many others that were one and one-half stories and that were the same height as the two-story homes. He advised the committee that he was not in violation of the covenants and stated, "[W]e can take [this] to court." Yacoub then continued with the re-build, resulting in orders by the City on February 19 and March 16, 2020, to "STOP ALL UNPERMITTED WORK." The March notice stated, "FAILURE TO COMPLY MAY RESULT IN CITATIONS BEING ISSUED WITH A MINIMUM FINE OF $500.00 TO $2,000.00 PER INCIDENT." Soon after that, the Lazybrook Civic Club also advised Yacoub that the covenants had been violated by modifications to the exterior facade, expansion of the building footprint, and the construction of a two-story residence on the Property. The letter recited the language of the convenants that were allegedly violated and demanded that Yacoub immediately cease and desist from any further alteration, renovation, rebuilding, and/or reconstruction of the residence.
On April 6, 2020, the City advised Yacoub, via certified mail, that he had violated certain deed restrictions concerning height and front setback provisions. In the letter, the City asked that Yacoub take the necessary steps to immediately comply with all deed restrictions applicable to the Property. On April 7 and April 21, 2020, the City posted additional notices on the Property again ordering Yacoub to stop unpermitted work.
On May 7, 2020, the City advised Yacoub that, with the exception of one property, the neighborhood homes were "either one story or one and one half stories." On the same day, Yacoub informed the City, "[Y]ou'll hear from my lawyer it's enough." In a letter from his attorney to the Civic Club on May 14, 2020, Yacoub claimed that there were four other two-story properties in the "neighborhood," but the City "insisted that . . . Yacoub limit the search to the particular section of the HOA."
Finally, in July 2020, the City sued Yacoub seeking a permanent injunction ordering Yacoub to comply with the deed restriction provision pertaining to building height by removing the residential addition to the second floor of the residence. Yacoub answered and asserted the affirmative defense of waiver based on the City's failure to enforce the deed restrictions consistently and uniformly within the subdivision.
In June 2021, the City filed a traditional motion for summary judgment, seeking judgment on its requested permanent injunction and claiming that the undisputed facts, together with the City's summary judgment evidence, conclusively established each essential element of its claim for injunctive relief. Yacoub's response claimed that the City was not entitled to a permanent injunction because (1) the City condoned construction of other two-story properties in the subdivision, (2) there was a fact issue concerning the number of other two-story homes in the subdivision in violation of the covenant, and (3) it was no longer possible to secure in substantial degree the benefits sought to be realized through the covenants. Yacoub also claimed that it would cost more than $100,000.00 to rebuild his home to comply with the covenant's height requirements. The City filed its reply to Yacoub's response, claiming that Yacoub's affirmative defense of waiver failed as a matter of law.
The trial court granted the City's motion for summary judgment, permanently enjoining Yacoub from violating the height provision in the deed restrictions and requiring him to remove the residential addition to the second floor of the residence to comply with the height provision in the deed restrictions.
II. Standard of Review
"The grant or refusal of a permanent or temporary injunction is ordinarily within the trial court's sound discretion, and on appeal, review of the trial court's action is limited to the question of whether the action constituted a clear abuse of discretion." Jim Rutherford Invs., Inc. v. Terramar Beach Cmty. Ass'n, 25 S.W.3d 845, 848 (Tex. App.-Houston [14th Dist.] 2000, pet. denied) (citing Priest v. Tex. Animal Health Comm'n, 780 S.W.2d 874, 875 (Tex. App.- Dallas 1989, no writ)). "Generally, that discretion is abused and subject to reversal when the trial court misinterprets or misapplies the law or acts arbitrarily or unreasonably." Tanglewood Homes Ass'n, Inc. v. Feldman, 436 S.W.3d 48, 76 (Tex. App.-Houston [14th Dist.] 2014, pet. denied).
"The standard of review becomes more complex when the permanent injunction is issued by the trial court's grant of a motion for summary judgment." Jim Rutherford Invs., Inc., 25 S.W.3d at 848.
We review a trial court's summary judgment de novo. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). "We take as true all evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve any doubts in the nonmovant's favor." Shelton v. Kalbow, 489 S.W.3d 32, 43 (Tex. App.-Houston [14th Dist.] 2016, pet. denied) (citing Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005)). "To be entitled to traditional summary judgment, a movant must establish that there is no genuine issue of material fact so that the movant is entitled to judgment as a matter of law." Id. (citing Tex.R.Civ.P. 166a(c)); Mann Frankfort, 289 S.W.3d at 848). "Once the movant produces evidence entitling it to summary judgment, the burden shifts to the nonmovant to present evidence raising a genuine issue of material fact." Id. at 43-44 (citing Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 1996); Wilkinson v. USAA Fed. Sav. Bank Trust Servs., No. 14-13-00111-CV, 2014 WL 3002400, at *4 (Tex. App.-Houston [14th Dist.] July 1, 2014, pet. denied) (mem. op.)). When the "non-movant relies on an affirmative defense to defeat summary judgment, he must present summary judgment proof sufficient to raise a fact issue as to each element of that defense." Jim Rutherford Invs., 25 S.W.3d at 849. "With both standards of review in mind, we turn to the propriety of the trial court's issuance of the permanent injunction." Id.
III. Analysis
A. Summary Judgment Injunctive Relief
To obtain injunctive relief, a party must ordinarily show "the occurrence of a wrongful act giving rise to imminent and irreparable harm for which there is no adequate remedy at law." Tanglewood Homes Ass'n, Inc., 436 S.W.3d at 76 (citing Jim Rutherford Invs., Inc., 25 S.W.3d at 849). When, however, the basis for suit is the enforcement of a deed restriction, "the applicant is required to prove only that the defendant intends to do an act that would breach the restrictive covenant." Id.
In this case, the City sought injunctive relief in July 2020. At that time, the petition alleged, "Defendant continues to unlawfully construct a structure on the Property which is in violation of the deed restrictions." (Emphasis added).
It is undisputed-and the City's summary judgment proof demonstrated-that Yacoub purchased the Property on July 31, 2019, and at the time of the purchase, the Property was subject to deed restrictions filed in the deed records of Harris County by Reinland Corporation, the owner and developer of the "Lazybrook, Section Five," subdivision. The subdivision's deed restrictions are restrictive covenants concerning real property. See Tex. Prop. Code Ann. § 202.001(4). The evidence further demonstrates that Yacoub's re-build breached the restrictive covenant that permitted only one-story structures except in the circumstance that the architectural committee expressly permitted a one and one-half-story structure. The summary judgment evidence shows that the architectural committee did not grant a variance and that the committee stated that it could not grant a variance for a two-story structure. The record also demonstrates that, when asked to stop construction on the Property on multiple occasions by the City and the Lazybrook Civic Club-due to violations of the deed restrictions-Yacoub refused to do so. Finally, the evidence demonstrates that Yacoub completed the re-build of a two-story structure on the Property.
The deed restrictions were implemented for the purpose of creating and carrying out a uniform plan for the improvement and sale of lots in said addition as a first class restricted district . . . . and such restrictions shall be referred to, adopted and made a part of each and every contract and deed executed by or on behalf of Reinland Corporation, conveying said property or any part thereof by appropriate reference to these reservations and restrictions, making the same a part of such conveyance to all intents and purposes as though incorporated at length therein; and said restrictions shall be and are hereby imposed upon each lot in said addition for the benefit of each and every other lot and shall constitute covenants running with the land and shall insure to the benefit of Reinland Corporation, its successors and assigns, and to each and every purchaser of land in said addition, and their heirs and assigns; and each such contract and deed shall be conclusively held to have been so executed, delivered and accepted upon the express conditions herein stated.
The dedicatory instrument states,
These covenants are to run with the land and shall be binding on all parties and all persons claiming under them for a period of twenty-five (25) years from the date these covenants are recorded, after which time said covenants shall be automatically extended for successive periods of ten (10) years, unless an instrument signed by a majority of the owners of the lots, has been recorded, agreeing to change said covenants in whole or in part.
Yacoub contends that, despite this evidence, the City was not entitled to injunctive relief because the trial court "erred in weighing the equities in favor of demolition." See Jim Rutherford Invs., Inc., 25 S.W.3d at 850 ("citing rule from Cowling v. Colligan, 312 S.W.2d 943, 945-46 (Tex. 1958)[, ] regarding the necessity of balancing the equities when enforcing restrictive covenants"). In Cowling, the Texas Supreme Court explained,
The equities favoring the particular owner[/alleged violator] is only one facet of the judicial inquiry. Those equities must be weighed against the equities favoring the lot owners who, having acquired their property on the strength of the restriction, wish to preserve the residential character of the area. The judgment must arise out of a balancing of equities or of relative hardships. 5 Restatement of the Law of Property § 563. In paragraph c of § 563 it is said: "It is not sufficient to create the disproportion (of harm) that will justify refusing to grant injunctive relief that the harm ensuring from granting such relief will be greater than the benefit gained thereby. When the disproportion between harm and benefit is the sole reason for refusing relief, the disproportion must be one of considerable magnitude."Cowling v. Colligan, 312 S.W.2d 943, 946 (Tex. 1958).
Yacoub did not seek the architectural committee's approval for the construction of a two-story home on the Property until after construction had commenced. When Yacoub did submit the building plans to the committee, the committee informed him that his submitted plans for the two-story home did not comply with the deed restrictions and asked Yacoub to resubmit his plans. Yacoub insisted that he was not in violation of the covenants, proceeded with the re-build, and told the committee, "[W]e can take it to court." Following that exchange, the City advised Yacoub on four different occasions to stop all unpermitted work on the Property. Yacoub ignored those postings.
The deed restrictions state, No building shall be erected, placed, or altered on any residential lot until the construction plans and specifications and a plan showing the location of the structure have been approved by the Architectural Control Committee referred to below. This approval shall include conformity and harmony of external designs with existing structure in this subdivision, and as to location of the building with respect to topography and finished ground elevation.
The Lazybrook Civic Club likewise continued to advise Yacoub that the construction of a two-story home on the Property was in violation of the restrictive covenants. Yacoub ignored those admonishments and never indicated that he intended to comply with the restrictions; instead, he continued with the re-build at his peril, advising the City and the Civic Club that the matter could be settled in court.
Ultimately, the matter was settled in court. Although Yacoub claims that the cost of compliance with the covenants will be $100,000.00, that course of events does not support Yacoub's claim that the equities fall in his favor. We, therefore, cannot conclude that the trial court erred when it weighed the equities in favor of demolition.
Based on this evidence, the City proved its entitlement to summary judgment, leaving Yacoub with the burden to present evidence raising a genuine issue of material fact on each element of his affirmative defense of waiver. See Jim Rutherford Invs., 25 S.W.3d at 849 (nonmovant must present summary judgment proof sufficient to raise a fact issue as to each element of an affirmative defense).
B. Waiver
"The affirmative defense of waiver can be asserted against a party who intentionally relinquishes a known right or engages in intentional conduct inconsistent with claiming that right." Tenneco Inc. v. Enter. Prods. Co., 925 S.W.2d 640, 643 (Tex. 1996); see Kamat v. Prakash, 420 S.W.3d 890, 910 (Tex. App.-Houston [14th Dist.] 2014, no pet.). Restrictive covenants, such as those at issue here, may be waived. See Sharpstown Civic Ass'n, Inc. v. Pickett, 679 S.W.2d 956, 958 (Tex. 1984). Although waiver is ordinarily a question of fact, when "the facts and circumstances are . . . clearly established, . . . the question becomes one of law." Tenneco, 925 S.W.2d at 643.
In New Jerusalem Baptist Church, Inc. v. City of Houston, 598 S.W.2d 666 (Tex. App.- Houston [14th Dist.] 1980, no writ), our sister court held that, in order to establish the affirmative defense of waiver in a deed restriction case, the nonconforming user must show that existing violations are "so great as to lead the mind of the 'average man' to reasonably conclude that the restriction in question has been abandoned and its enforcement waived." Id. at 669; see Lee v. Perez, 120 S.W.3d 463, 467 n.8 (Tex. App.-Houston [14th Dist.] 2003, no pet.); Jim Rutherford Invs., 25 S.W.3d at 851; City of Houston v. Boyce, No. A14-86-523-CV, 1987 WL 5156, at *3 (Tex. App.-Houston [14th Dist.] Jan. 2, 1987, no writ). The factors to be considered are "the number, nature, and severity of the then existing violations, any prior acts of enforcement of the restriction, and whether it is still possible to realize to a substantial degree the benefits intended through the covenant." New Jerusalem Baptist Church, Inc., 598 S.W.2d at 669.
Although the City was under no burden to disprove Yacoub's waiver defense, see Tarrant Restoration v. TX Arlington Oaks Apartments, Ltd., 225 S.W.3d 721, 730 (Tex. App.-Dallas 2003, pet. dism'd w.o.j.), it filed a reply to Yacoub's response with attached evidence purporting to dispute the waiver defense. Yacoub claims that, because that evidence was filed late, it was not before the trial court and that we are likewise precluded from considering it. We agree. The City filed its motion for summary judgment on June 4, 2021, and the motion was set for submission on June 28, 2021. The City filed its reply to Yacoub's response on June 22, 2021, with attached evidence. Because the evidence attached to the reply was not filed within twenty-one days of submission, the evidence could not be considered without leave of court. See Tex. R. Civ. P. 166a(c) (requiring summary judgment evidence to be filed at least twenty-one days before submission, except with leave of court). Nothing in the record indicates that the City obtained leave of court to file additional evidence within three days of the submission date. The summary judgment recites that the court, "having considered the Motion and the evidence presented, together with the response . . . [was] of the opinion that Plaintiff's motion should in all things be GRANTED." This language indicates that the trial court did not consider the evidence attached to the City's reply to Yacoub's response to its motion for summary judgment. Because the evidence attached to the City's reply was filed without leave of court and nothing in the record indicates that it was considered by the trial court, we must conclude that such evidence was not properly before the trial court at the time the final summary judgment issued. See Benchmark Bank v. Crowder, 919 S.W.2d 657, 663 (Tex. 1996) (where nothing appears of record to indicate that late filing of summary judgment evidence was with leave of court, it is presumed that trial court did not consider the evidence); Env't Procs., Inc. v. Guidry, 282 S.W.3d 602, 612 (Tex. App.-Houston [14th Dist.] 2009, pet. denied) ("It is well-established . . . that unless there is a basis in the record to conclude that untimely material was filed with leave of court, we presume that the trial court did not consider it."). Because the evidence attached to the City's reply to Yacoub's response to the summary judgment motion was not properly before the trial court, we are precluded from considering that evidence.
In an affidavit attached to Yacoub's response to the summary judgment motion, Yacoub stated that he had "personally driven though the neighborhood and ha[d] observed" seven two-story homes. Yacoub therefore claims that the restrictive covenant governing height restrictions has been waived. In our examination of Yacoub's evidence in support of his affirmative defense of waiver, we consider only that evidence that pertains to structures within the Lazybrook, Section Five, subdivision, as that is the only area to which the restrictive covenants apply. In his affidavit, Yacoub identified the following properties as two-story structures "in the neighborhood":
• 2014 Brook Tree Drive
• 2115 Widdicomb Court
• 2302 Brook Tree Drive
• 2110 Millwood Drive
• 2338 Brookmere Drive
• 2342 Brookmere Drive
Although Yacoub claims that there were seven two-story properties in the neighborhood, he listed 2110 Millwood Drive twice in his affidavit.
Yacoub's affidavit more particularly claimed that "[t]here [was] . . . a home (2115 Widdicomb) in the neighborhood [that] was constructed in 2021." The affidavit continued, "This home . . . is 2 stories and is in Section 5 of the community." Yacoub further stated, "2014 Brook Tree Drive is in the same section and is clearly advertised as a two-story home - rather than a 1 ½ story home. It is in section 5." This is some evidence that there are two two-story homes in the Lazybrook, Section Five, subdivision. Although Yacoub stated that the structures located at 2302 Brook Tree Drive, 2338 Brookmere Drive, and 2342 Brookmere Drive are two stories, he failed to present evidence that those properties were located within the Lazybrook, Section Five, subdivision. In fact, evidence submitted in support of Yacoub's summary judgment response indicates that 2338 Brookmere Drive and 2342 Brookmere Drive were both located in Lazybrook, Section Eight, subdivision.
The City failed to challenge Yacoub's affidavit as conclusory.
Yacoub also claimed that 2110 Millwood was a two-story structure. The City stipulated that that structure was, indeed, two stories and was located within the subdivision. As a result, Yacoub has presented some evidence of three instances of a breach of the height restriction within the Lazybrook, Section Five, subdivision. Even so, Yacoub was required to present evidence sufficient to raise a fact issue on each element of his affirmative defense of waiver. A genuine issue of material fact is "a triable, substantial, or real question of fact supported by substantial evidence." Genuine Issue of Material Fact, Black's Law Dictionary (11th ed. 2019).
Here, although Yacoub presented evidence of three violations of the restrictive covenant's height restrictions, he failed to present evidence of the severity of those violations. The severity of the violations can be assessed only within the context in which the violations exist. See Lee, 120 S.W.3d at 467. So, for example, the severity of the three asserted violations here would differ dramatically if there were only four homes in the subdivision verses two hundred homes in the subdivision. "Texas courts have found that violation rates ranging from 1.9% to 8.9% were not sufficient to support waiver and abandonment." Uptegraph v. Sandalwood Civic Club, 312 S.W.3d 918, 935-36 (Tex. App.-Houston [1st Dist.] 2010, no pet.); City of Houston v. Revels, No. 14-99-00139-CV, 2001 WL 699546, at *2 (Tex. App.- Houston [14th Dist.] June 21, 2001, pet. denied).
Yacoub did not present evidence of the total number of homes within the Lazybrook, Section Five, subdivision, and thus there is no evidence of the relative impact of those violations within that section. Likewise, there is no evidence of any prior acts of enforcement of the height restriction and no evidence of import on the issue of whether it is still possible to realize to a substantial degree the benefits intended through the height restriction. Stated differently,
Yacoub's affidavit stated that there were many other homes in the subdivision that were one and one-half stories, having the same height as two-story homes. He, therefore, contends that the neighborhood was not uniform, resulting in a change of conditions in the restricted area such that it was not possible to secure, to a substantial degree, the benefits sought to be realized by the covenant. The restrictive covenants specifically provide: residences not exceeding one and one-half (11/2) stories in height may be erected on any of the lots covered hereby, provided the Architectural Control Committee referred to below approves the lots upon which a one and one-half (11/2) story residence building may be erected, in addition to approving the plans and specifications therefor. The covenants further provide, "The ground floor area on any one and one-half (11/2) story main residence building . . . shall not be less than one thousand (1000) square feet and the upper floor area shall not be less than four hundred (400) square feet." There is no evidence that the design of any of the one and one-half-story structures within the Lazybrook, Section Five, subdivision failed to comply with the restrictive covenants or any standards utilized by the architectural control committee in the approval of such structures.
Yacoub has wholly failed to present any evidence that three violations of the height restriction within the Lazybrook, Section Five, subdivision were so great as to lead an average person to reasonably conclude that the height restriction had been abandoned and its enforcement waived. See New Jerusalem Baptist Church, 598 S.W.2d at 669; Jim Rutherford Invs., 25 S.W.3d at 852.
We, therefore, conclude that Yacoub failed to raise a genuine fact issue on each element of his affirmative defense of waiver. See Finkelstein v. Southampton Civic Club, 675 S.W.2d 271, 278 (Tex. App.-Houston [1st Dist.] 1984, writ ref'd n.r.e.) (finding, in summary judgment case, affidavit proof of two violations of restrictive covenant insufficient as a matter of law to constitute waiver of covenant's benefits and enforceability).
IV. Conclusion
We affirm the trial court's judgment.