                                  NO. 07-03-0036-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                       PANEL D

                               SEPTEMBER 8, 2004
                         ______________________________

               COMMUNITY IMPROVEMENT ASSOCIATION OF LAKE
                           CONROE HILLS, INC.,

                                                              Appellant

                                           v.

                     DON A. BECKHAM and HEIDI L. BECKHAM,

                                                     Appellees
                       _________________________________

         FROM THE 410TH DISTRICT COURT OF MONTGOMERY COUNTY;

            NO. 01-11-07177-CV; HON. K. MICHAEL MAYES, PRESIDING
                       _______________________________

                               Memorandum Opinion
                         _______________________________

Before QUINN, REAVIS, and CAMPBELL, JJ.

      The Community Improvement Association of Lake Conroe Hills, Inc. (the

Association) complains in 13 issues of a take-nothing judgment entered in favor of

appellees Don A. Beckham and Heidi L. Beckham (the Beckhams). The Association had

sued the Beckhams to enforce deed restrictions, declare their construction endeavors a

nuisance, and recover civil damages and attorney’s fees. We reverse and render in part,

reverse and remand in part for further proceedings and affirm in part.
                                       Background

       The Beckhams own a home in the Lake Conroe Hills subdivision, which subdivision

is subject to restrictive covenants. They began renovating the home in May 2000. The

renovations continued into the year 2002 and were not completed by the time of trial.

Furthermore, much of the work was done by Don Beckham himself, and during their

construction, the Beckhams left materials, supplies, equipment, and trash on the property.

Various other residents of the subdivision complained about this to the Association. The

latter, in response, requested the Beckhams to clean their property. They did not but rather

continued with their construction.

       The renovations included excavation of the land at the rear of the house and the

erection of a patio. Apparently, the floor of the patio served as the ceiling of a 1000 square

foot space that the Beckhams were finishing to resemble the first floor of a three story

home. Also erected below the patio but next to this 1000 square foot area was a small

brick and windowed edifice. Other items were also built on the property. They included a

retaining wall that eventually had to be replaced and a metal tower standing higher than the

roof of the home. The tower was to be used to receive high definition television signals

from Houston, Texas.

       The Association eventually sued the Beckhams for nuisance and to enforce various

of the restrictive covenants. Initially, the Beckhams chose to represent themselves and

answered the petition with a general denial. Later, requests for admissions were served

upon them, which requests they failed to answer in a timely manner. And, though they

attempted to relieve themselves of the effect of their omission, the trial court struck only

three of the deemed admissions.

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       Eventually, the Beckhams retained counsel when they were served with a motion

for summary judgment filed by the Association. They also later sought an extension of time

to respond to the motion. The extension was granted, and the summary judgment was

subsequently denied. The case was then tried to a jury. The latter held for the Beckhams,

and judgment was eventually entered reflecting that verdict.

            Issue 1 - Late Response to Motion for Summary Judgment

       In its first issue, the Association complains of the trial court’s decision to extend the

time in which the Beckhams had to respond to its motion for summary judgment. We

overrule the point.

       An appellate court cannot review an order overruling a motion for summary

judgment via appeal after a conventional trial on the merits. Motor 9, Inc. v. World Tire

Corp., 651 S.W.2d 296, 299 (Tex. App.–Amarillo 1983, writ ref’d n.r.e.). Given this, the fact

that the trial court at bar overruled the motion for summary judgment, and the fact that a

conventional trial on the merits has been held, any question about the validity of the trial

court’s decision to extend the deadline at issue is effectively moot or irrelevant. This is so

because to afford the first issue any meaning or effect would require us to also decide

whether the extension affected the trial court’s decision to deny the summary judgment

motion. Yet, because we cannot review the decision to deny the motion, it does not matter

if the trial court legitimately afforded the Beckhams more time to respond to the motion.

So, we overrule the first issue.

                      Issue 2 - Striking of Deemed Admissions

       In its second issue, the Association argues that the trial court erred in striking three

of the 38 deemed admissions made by the Beckhams. We overrule the issue.


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       The Beckhams failed to respond to admissions served on them. Consequently, they

were deemed admitted against them. However, upon their motion, the trial court struck

three of the admissions. The three involved were:

       35. You knowingly violated the Deed Restrictions.

       36. You willfully violated the Deed Restrictions.

       37. All of the facts contained in Plaintiff’s First Amended Original Petition are
       true and correct.

According to the Association, the trial court erred in permitting their amendment or

withdrawal because the Beckhams failed to show good cause to justify the action. Yet,

other than simply mentioning Texas Rule of Appellate Procedure 198.3 in general, the

Association provided us with no legal authority discussing the concept of good cause or

illustrating why the reasons proffered by the Beckhams to justify their omission failed to

satisfy the applicable standard. This falls short of complying with the requirements of Rule

38.1(h) of the Texas Rules of Appellate Procedure. The latter obligates an appellant to

include within its argument “appropriate citations to authorities . . . .” Since the Association

did not do so, it waived its complaint. See State Farm Lloyds, Inc. v. Williams, 960 S.W.2d

781, 789 (Tex. App.–Dallas 1997, pet. dism’d by agr.) (holding that the failure to cite to

supporting authority waives the issue).

                             Issues 3, 4, 5 and 12 - Nuisance

       Issues three, four, five, and twelve involve the question of nuisance. Through them,

the Association attacks the trial court’s 1) refusal to grant it a directed verdict and judgment

notwithstanding the verdict on the issue and 2) refusal to exclude pictures depicting the

condition of other parcels of property in the subdivision. We sustain the issues.


                                               4
         The deed restrictions at issue provided:

         No noxious or offensive trade or activity shall be carried on or maintained on
         any lot in said subdivision, nor shall anything be done thereon which may be
         or become a nuisance in the neighborhood. A nuisance shall include but not
         be limited to: a truck larger than three-quarter ton parked on lots or roads or
         permanently kept on property; any motor vehicle not properly licensed by the
         State of Texas; junk or wrecking yards; automobiles, trucks or other vehicles
         used for parts.

Moreover, the Beckhams admitted that the construction material, supplies, equipment,

trash and debris “located on [their] property for more than 6 months . . . created a

nuisance,” “a dangerous condition,” “a threat to the health and safety of [their] neighbors,”

“a threat to the health and safety of [their] neighbors’ children,” and “a threat to the health

and safety of the community of Lake Conroe Hills subdivision as a whole.”1 These

admissions wrought a two-fold effect. First, being classified as judicial in nature, the

admissions prevented the Beckhams from offering any evidence at trial that contradicted

them. Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 905 (Tex. 2000); Marshall

v. Vise, 767 S.W.2d 699, 700 (Tex. 1989). Second, they also relieved the trial court from

the obligation of submitting an issue to the jury on the topic. Horizon/CMS Healthcare

Corp. v. Auld, 34 S.W.3d at 905.

         Thus, to the extent that the trial court admitted the pictures alluded to above “for the

purposes of . . . the question of nuisance,” it erred. Simply put, the Beckhams were

prohibited from tendering evidence that contradicted their admission that they created a




         1
          Their admissions arose due to the B eckham s’ failure to timely resp ond to the A ssociation ’s requ ests
for adm ission s. T E X . R. C IV . P. 19 8.2(c) (stating that if a response is not timely filed, the request is considered
admitted without the nece ssity of a cou rt order). More over, the trial co urt refused to allow them to withdraw
or am end the adm ission s, wh ich de cision the B eckham s did n ot appea l.

                                                            5
nuisance. Horizon/CMS Healthcare Corp. v. Auld, supra; Marshall v. Vise, supra. And,

since they were barred from tendering it, the trial court could not admit it.

       Moreover, having admitted the existence of a nuisance, the Beckhams were not

entitled to the submission of, nor was the Association obligated to request, a jury issue on

the matter. Horizon/CMS Healthcare Corp. v. Auld, supra. Rather, the circumstance

afforded the trial court no avenue other than to direct a verdict finding that a nuisance

existed.   Simply put, the admissions resolved any factual dispute regarding, and

established the Association’s right to, judgment as a matter of law on the claim. See

Rudolph v. ABC Pest Control, Inc,. 763 S.W.2d 930, 932 (Tex. App.–San Antonio 1989, writ

denied) (stating that a directed verdict is proper if the evidence conclusively proves facts

that establish a party’s right to judgment as a matter of law).

       Finally, we conclude that the errors were harmful. This is so because the jury

determined that no nuisance arose, and judgment was entered on that verdict. Had it not

been for the errors, the jury could not have had the opportunity to so rule.

                       Issues 6, 7, 8, and 11 - Erection of Tower

       The next issues which we address, namely six, seven, eight, and eleven, involve the

erection of the metal tower. Through them, the Association argues that the trial court erred

when it refused to 1) direct a verdict or grant a judgment notwithstanding the verdict finding

that the construction of the tower without advance approval from the Association violated

the deed restrictions and 2) submit a jury instruction informing the jurors that the words

“building” and “structure” were synonymous. It is also contended that the jury’s verdict that

said construction did not violate the restrictions lacks evidentiary support. We overrule

each point.

                                              6
       The particular restriction in dispute is found in paragraph “1” of the document and

provides that:

       No building shall be erected, placed or altered on any lot, property or area in
       this subdivision until the building plans, specifications and plot plans showing
       the location of such building have been approved in writing by LAKE
       CONROE HILLS LIMITED, or its designated representative, or such
       architectural control committee as may be established, as to conformity and
       harmony of external and structural design and quality with existing structures
       in the subdivision and as to the location of the building and in conformity with
       the declarations, reservations, protective covenants, limitations, conditions
       and restrictions, as hereinafter set out.

(Emphasis added). Given the wording utilized in paragraph 1, we must first conclude that

the tower constituted a building before we can sustain the Association’s issues. This we

cannot do.

       Deed restrictions are subject to the same rules of interpretation applicable to

contracts. Pilarcik v. Emmons, 966 S.W.2d 474, 478 (Tex. 1998). So, when construing

them, we strive to give effect to the parties’ intent as garnered from the document as a

whole and the words used in it. Cross Timbers Oil Co. v. Exxon Corp, 22 S.W.3d 24, 26

(Tex. App.–Amarillo 2000, no pet.). We must also afford those words their plain, ordinary,

and generally accepted meaning, unless the document requires otherwise. Id.; see Air

Park - Dallas Zoning Committee v. Crow Billingsley Airpark, Ltd., 109 S.W.3d 900, 909

(Tex. App.–Dallas 2003, no pet.) (stating that words in a restrictive covenant will be given

their commonly accepted meaning). With this said, we turn to the words before us.

       The term “building” commonly denotes “a structure” having “a roof and walls.”

Webster’s Revised Unabridged Dictionary (1998). On the other hand, the word “structure”

usually denotes “something . . . that is constructed” or “arranged in a definite pattern.” Id.

Given this, one can readily see that though the two words may be related, they are not the

                                              7
same.    While a building can be considered a structure for it is “something that is

constructed” and “arranged in a definite pattern,” not everything that can be built in a

definite pattern is a building. For instance, the water fountain appearing at the entrance of

Texas Tech University is unquestionably constructed and most definitely arranged in a

certain pattern but it has no walls or roof. So, while one could reasonably consider it a

structure, it could hardly be deemed a building. And, this leads us to hold that the words

“structure” and “building” are not per se synonymous.

        Furthermore, our holding is further supported by the deed restrictions themselves.

In paragraph 3(G) of same there appears the following:

        Except for townhouses and multi-family dwellings . . . no building or structure
        shall be erected on any lot nearer than four . . . feet including roof overhang
        from an interior lot line . . . .

(Emphasis added). As can be seen, both the words “building” and “structure” are used.

What makes this significant is the rule requiring us to give meaning to every word contained

in the document.       Cherokee Water Co. v. Freeman, 33 S.W.3d 349, 354 (Tex.

App.–Texarkana 2000, no pet.) (stating that the court is required to give effect to all words

used and is not permitted to assume that the drafter intended some words to have no

effect). Yet, if we were to adopt the Association’s argument that the two words mean the

same thing, we would effectively be rendering one or the other redundant, that is, we would

be violating the rule expressed in Freeman. So, due to the fact that the individual who

drafted the restrictions included both words in the paragraph, authority compels us to

presume that the drafter intended the words have different meanings.




                                              8
        In view of our foregoing observations, we cannot but find that the trial court acted

properly in refusing to instruct the jury that “building” and “structure” meant the same thing.2

Nor can one who sees the pictures of the metal tower contained in the record deny that the

item lacked both walls and a roof. And, because it lacked such characteristics, it was within

the province of the jury to conclude that the tower was not a “building” as that term is

commonly understood. Consequently, the trial court had basis upon which to refuse to

submit the instruction sought by the Association, and some evidence existed to support the

jury’s finding that the Beckhams did not violate paragraph 1 by failing to obtain approval as

a condition precedent to erecting the tower.

                              Issues 9 and 10 - Construction Period

        In their ninth and tenth issues, the Association complains of a partial directed verdict

granted in favor of the Beckhams. Through it, the trial court found that the six-month

construction period mentioned in paragraph 3(J) of the deed restrictions only applied to new

construction, as opposed to alterations or additions to an existing residence. And, since

the Beckhams were simply modifying an existing home, the trial court refused to ask the

jury if the Beckhams violated 3(J) and instead directed a verdict on the matter. We sustain

the Association’s ninth issue and overrule the tenth.

        Paragraph 3(J) provides:

        CONSTRUCTION. All materials used in the exterior construction of any
        residence or other structure must be approved by Lake Conroe Hills Limited
        or its assigns or nominees before any structure may be erected and only new


        2
          In arriving at our holding we distinguish Mitchell v. G aulding, 483 S.W.2d 41 (Tex. Civ. App.–Waco
1972, writ ref’d n.r.e.), a case upon which the Association relies. There, the restrictions contained the word
“structure,” and the co urt held that a radio tower was a “structure.” Id. at 43. Ye t, the operative word
appearing in the restriction at bar is “building,” not “structure.” So Mitchell v. Gaulding is quite inappos ite.

                                                       9
       construction materials may be used except for used brick. No concrete
       blocks shall be used in said construction and all buildings shall be built on a
       slab or solid concrete beam foundation or standing on concrete blocks. In no
       event shall any old house or building be moved on any lot or lots in said
       subdivision. The exterior construction of any kind and character, be it the
       primary residence, garage, porches, or appendages thereto, shall be
       completed within six (6) months after the start of foundation.

(Emphasis added). As can be seen, nothing in the provision expressly limits the application

of the italicized sentence to new construction. Moreover, the plain wording of that sentence

belies any notion that the restriction merely encompasses only the construction of new

houses. Indeed, we cannot ignore the fact that the person who drafted the restrictions

used the phrase “of any kind and character” to describe the type of exterior construction

subject to the six-month period.     Simply put, exterior construction “of any kind and

character” is all encompassing. And, that the person who drafted the deed restrictions may

have referred to the alteration of existing structures elsewhere in the document but omitted

the term in the italicized sentence does not convince us otherwise. This is due to the

inherent breadth of the word “any.” “Any” means, in the context before us, “all.” So, when

exterior construction “of any kind and character” must be completed within six months, the

passage cannot reasonably be read as meaning only “some” types of construction.

       Moreover, to adopt the Beckhams’ interpretation of the phrase would lead to an

absurd result. For instance, those building a new home would have to complete the

exterior within six months. Yet, if one sought to make extensive additions or alterations to

the exterior of an existing house (e.g. additions increasing the size of the house two-fold)

he could take as many years as he chose to finish the job and, consequently, keep the

external appearance of his property in unsightly disarray as long as he chose. That makes



                                             10
no sense, and we cannot accord an absurd meaning to the words of a document. Criswell

v. European Crossroads Shopping Center, Ltd., 792 S.W.2d 945, 948 (Tex. 1990).

       In sum, we find that the six-month restriction was not intended to apply and cannot

reasonably be read as applying only to the construction of a new house. Instead, it

encompassed additions and alterations to the exterior of an existing house. And, since the

record indisputably revealed that the Beckhams failed to complete the exterior portion of

the alterations to their home within six months of their initiation, the trial court erred in

directing a verdict in favor of the Beckhams on the matter. This very same indisputable

evidence also leads us to conclude that there was no need to ask the jury if the deed

restriction had been violated. Again, a jury need not be asked about issues which involve

no factual dispute. Horizon/CMS Healthcare Corp. v. Auld, supra. Thus, we reject the

Association’s contention that such an issue had to be submitted to the jury. Finally, we hold

that the error committed viz the partial directed verdict was harmful since it deprived the

Association of opportunity to recover upon one of its claims.

                     Issue 13 - Civil Damages and Attorney’s Fees

       In its final issue, the Association asserts that the trial court erred in failing to award

it civil damages and attorney’s fees. We sustain the issue.

       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.              TEX . PROP. CODE ANN .

§202.004(c) (Vernon 1995). However, since the language of the statute is permissive in

nature, the award of such damages is left to the trial court’s discretion. Air Park - Dallas

Zoning Committee v. Crow-Billingsley Air Park, Ltd., 109 S.W.3d at 912. At bar, the trial

court did not consider the assessment of civil damages because the jury found there was

                                              11
no violation of the deed restrictions. Since we have determined that the six-month time

period in paragraph 3(J) of the restrictions was violated, the case should be remanded for

a determination of the civil damages to be awarded, if any.

       Next, the award of attorney’s fees is not discretionary. Instead, the legislature stated

that the trial court “shall allow [attorney’s fees] to a prevailing party who asserted” an action

for breach of a restrictive covenant pertaining to realty. TEX . PROP. CODE ANN . §5.006(a)

(Vernon 2004). Nevertheless, it lies within the trial court’s bailiwick to determine the

reasonableness of the fees for we cannot find facts. Briargrove Park Property Owners, Inc.

v. Riner, 867 S.W.2d 58, 62 (Tex. App.–Texarkana 1993, writ denied). Therefore, we must

remand the issue of attorney’s fees to the trial court as well.

       In summary, we reverse the judgment to the extent it denies the Association

recovery upon its claim of nuisance and the claim involving the violation of paragraph 3(J)

of the deed restrictions and render judgment in favor of the Association upon those two

claims. We next reverse and remand that portion of the judgment denying the Association

damages and attorney’s fees and awarding the Beckhams their costs of court. In all other

things, the judgment is affirmed.



                                                    Brian Quinn
                                                      Justice




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