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                                MEMORANDUM OPINION

                                        No. 04-08-00317-CV

                    ALSATIAN HEIGHTS HOMEOWNERS ASSOCIATION,
                                      Appellant

                                                 v.

                                       Omar RODRIGUEZ,
                                            Appellee

                     From the 38th Judicial District Court, Medina County, Texas
                                  Trial Court No. 07-11-18713-CV
                         Honorable Mickey R. Pennington, Judge Presiding

Opinion by:       Rebecca Simmons, Justice

Sitting:          Sandee Bryan Marion, Justice
                  Rebecca Simmons, Justice
                  Steven C. Hilbig, Justice

Delivered and Filed: February 4, 2009

REVERSED AND REMANDED

           Alsatian Heights Homeowners Association appeals a summary judgment granted in favor of

Omar Rodriguez declaring that Rodriguez’s home is not in violation of the Declaration of Restrictive

Covenants, Conditions, and Restrictions for the Alsatian Heights Subdivision (the “Declaration”).

The Association contends that the trial court erred in granting summary judgment in favor of

Rodriguez and by including findings of fact and conclusions of law in its order. We reverse the

judgment of the trial court and remand the cause for further proceedings.
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                                           BACKGROUND

       In September of 2006, Rodriguez purchased property from his brother-in-law. Rodriguez’s

brother-in-law had started construction of a residence prior to Rodriguez’s purchase of the property.

At the time of the purchase, Rodriguez’s brother-in-law did not inform Rodriguez that the

Association had contacted him regarding the construction. Although Rodriguez received a copy of

the Declaration at the time he purchased the property, he did not read it.

       On October 23, 2006, the Association sent Rodriguez a letter informing him that the

Association had previously contacted his brother-in-law requesting a site plan and a time line for the

completion of the residence. The letter refers to paragraphs 5.01 and 5.04 of the Declaration.

Paragraph 5.01 states:

       5.01 Approval of Plans and Specifications: No building, home, manufactured
       home, modular home, manufactured house, fence, wall, or other structure shall be
       commenced, placed, erected, or maintained upon the Properties, nor shall any
       exterior addition to, or change or alteration therein, be made, nor shall any
       landscaping, excavating or filling in of any Lot or Lots be undertaken, until the full
       set of plans and specifications showing the nature, kind, shape, height, materials, and
       location of the same shall have been submitted to and approved in writing by the
       Committee.

Paragraph 5.04 provides in pertinent part:

       5.04 Conventional Construction Homes: Homes of Conventional Construction
       shall be built on site using new materials. ... A minimum double carport and
       enclosed storage shed shall be required for each residence. ... No flat roofs shall be
       permitted.

The Association’s letter requested that Rodriguez complete and return: (1) pages 1-3 of a Site Plan

Approval Required Data/Information Check-Off Sheet (the “Approval Request Form”); and (2) a

Request for Waiver form stating the anticipated completion date. The letter concluded, “Please send

me the site plan and Request for Waiver information within the next 30 days.”

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       On March 1, 2007, Rodriguez’s wife, Veronica Prida, responded to the Association’s letter

enclosing the completed Approval Request Form and Request for Waiver. Prida informed the

Association that the delay in responding was due to her being diagnosed with cancer.

       In the Request for Waiver, Rodriguez and Prida requested a waiver of four months to come

into compliance with the Declaration. The Approval Request Form stated, “Final Approval requires

the following information. Conditional Approval may be obtained.” In completing the Approval

Request Form, Rodriguez and Prida checked that a “dimensioned site plan drawing” was being

submitted showing four of five listed items, including: (1) the location of the house; (2) the location

of the septic system; (3) the location of the driveway; and (4) the location of the fencing. Rather than

checking that the drawing showed the fifth item, the location of planned outbuildings, Rodriguez and

Prida wrote “N/A.” Similarly, beside the portion of the Approval Request Form requesting a

description of the outbuildings, Rodriguez and Prida wrote “N/A.” Finally, Rodriguez and Prida

completed the Approval Request Form by describing the fence to be installed as a six foot fence to

be located in front of the property with installation anticipated to begin on March 15, 2007, and end

on March 30, 2007. Attached to the Approval Request Form was a quotation for the septic system

that described the system and contained an engineer’s drawing of the septic system layout.

       On March 12, 2007, Sandra Crenshaw, the president of the Association, e-mailed Prida and

stated, “I am granting a conditional approval of your submitted site plan.” Crenshaw informed Prida

that a six foot fence could not be erected in front of the home. Crenshaw further informed Prida that

only one month was being granted to complete the exterior of the house and the driveway.

       The Association’s written Conditional Site Plan Approval stated that the “location and size

of the home are accepted and approved” and a waiver of the 50 ft. setback was granted “because the

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house is permanently attached.” The request for a four month waiver was denied but a waiver of

thirty days from the date the conditional approval was received was granted “for the completion of

the exterior of the home and the driveway.” The approval of the six foot fence was denied, and

information was provided regarding the type of fence that would be acceptable. The letter

concluded: “We need the following information: 1) The location of the driveway with respect to the

septic system. The driveway has not been drawn on the site plan. 2) Description of the fencing

planned for the front of the house, if you are still planning to erect a fence in the front.”

        On March 30, 2007, the Association sent Rodriguez another letter informing him that flat

roofs were prohibited and that he must change the roof line to accommodate a slope before a final

approval would be given. The letter stated that the Architectural Control Committee (“Committee”)

and the Board of Directors (“Board”) expected a sloped roof to be completed by April 16, 2007. On

May 15, 2007, Prida sent Crenshaw a letter stating, “As agreed at our meeting, I have checked into

the possibility of altering the appearance of the roof line at the house we are building at lot 129.”

Prida’s letter stated that the house was 98% complete and adding a new roof structure would present

two major problems. In an effort to please the Board, Prida’s letter proposed to install a canopy on

the house facade facing the street and enclosed a drawing of the proposed canopy.

        On June 2, 2007, the Association sent a letter rejecting the proposal. The letter suggested

two modifications to the roof that would be acceptable to the Board. On June 20, 2007, Prida

responded by requesting various items of information and a hearing before the Committee. On July

11, 2007, Prida and Rodriguez sent Crenshaw a follow-up letter inquiring about the status of the

information they had previously requested and informing Crenshaw that they intended to attend a

hearing on July 26, 2007, regarding the concern about the roof. On July 19, 2007, a letter was sent

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to Prida on behalf of the Board providing some of the requested information, stating that the Board

was not required to give certain other information, and noting that the hearing regarding the roof was

scheduled for July 26, 2007.

       On August 20, 2007, Rodriguez sent Crenshaw a letter requesting a resale certification and

noting that no formal written response had been received regarding the Board’s decision at the

hearing. On September 10, 2007, the Association sent Rodriguez and Prida notice that the property

was in noncompliance with the Declaration because the grass and brush were not being maintained

in a neat and orderly manner. On September 21, 2007, the Association sent Rodriguez and Prida

notice that the property was in noncompliance with the Declaration because a minimum double

carport and enclosed storage shed were required for each residence. The letter stated that the

Committee’s approval of the structures must be obtained in advance. On October 26, 2007, a second

notice regarding the carport and storage shed was sent stating Rodriguez and Prida had fourteen days

to comply or the Board could hire outside contractors to correct the noncompliance and charge the

costs to the property owner. On November 19, 2007, a third notice of noncompliance was sent also

threatening to hire outside contractors to correct the deficiencies.

       On November 18, 2007, Rodriguez filed the underlying lawsuit seeking declaratory relief that

he was in compliance with the Declaration based on the Association’s conditional approval.

Rodriguez also asserted the defenses of laches, estoppel, and waiver to the enforcement of the

Declaration. Rodriguez subsequently filed a motion for summary judgment. The only ground

asserted in the motion as a basis for summary judgment was Rodriguez’s contention that he was in

compliance with the Declaration based on the Association’s approval. Attached to the motion was

Rodriguez’s affidavit in which he stated that the roof was complete when the Approval Request

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Form was sent to the Association. Rodriguez also stated that no information was provided regarding

the roof because the Approval Request Form did not ask for that information. Finally, Rodriguez

stated that the roof is not flat but has a slope.

        The Association responded to Rodriguez’s motion and attached the transcripts of Rodriguez

and Prida’s depositions. Pictures of the roof are attached to Prida’s deposition.

        After a hearing, the trial court granted summary judgment in favor of Rodriguez. The

Association appeals the trial court’s order.

                                        STANDARD OF REVIEW

        We review a summary judgment de novo. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d

150, 156 (Tex. 2004). We consider the evidence in the light most favorable to the non-movant and

indulge all reasonable inferences and resolve any doubts in the non-movant’s favor. Id. at 157. We

will affirm a summary judgment only if the movant established there are no genuine issues of

material fact and the movant is entitled to judgment as a matter of law on a ground expressly set

forth in the motion. Id.

                                               DISCUSSION

        Because the only ground asserted by Rodriguez in his motion for summary judgment was that

the residence was in compliance with the Declaration based on the Association’s conditional

approval, we do not consider the defenses of waiver, estoppel, or laches asserted in Rodriguez’s

petition but not raised in his motion. See City of Houston v. Clear Creek Basin Authority,

589 S.W.2d 671, 675-77 (Tex. 1979) (holding grounds for summary judgment must be expressly set

out in motion). Restrictive covenants are subject to the general rules of contract construction.

Pilarcik v. Emmons, 966 S.W.2d 474, 478 (Tex. 1998); Sonterra Capital Partners, Ltd. v. Sonterra

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Property Owners Ass’n, Inc., 216 S.W.3d 417, 420 (Tex. App.—San Antonio 2006, pet. denied).

Restrictive covenants are liberally construed to effectuate their purposes and intent; however any

doubts are resolved in favor of the free and unrestricted use of the premises. Sonterra Capital

Partners, Ltd., 216 S.W.3d at 420.

       Section 5.01 of the Declaration required Rodriguez to submit a “full set of plans and

specifications showing the nature, kind, shape, height, materials, and location” of the residence prior

to beginning construction in order to seek the Association’s approval. Rodriguez relies heavily on

Pilarcik v. Emmons, 966 S.W.2d at 480, in asserting that his failure to submit his plans prior to

construction was immaterial in view of the Association’s conditional approval. Unlike the instant

case, however, the restrictions at issue in Pilarcik expressly gave the architectural control committee

in that case the authority to waive the restrictions in question. Id. at 476, 480. In reaching its

holding that the architectural control committee waived the covenant prohibiting composition roofs,

the Texas Supreme Court concluded:

       [The architectural control committee’s] approval of construction plans without
       requiring strict adherence to the submission of construction plans implies that the
       [architectural control committee] has waived the requirement that those plans be
       submitted. That waiver is within the authority given to the [architectural control
       committee] in the restrictive covenants, provided that the value of the house is not
       less than $50,0000.

Id.

       As previously noted, the Approval Request Form required the submission of a “dimensioned

site plan drawing.” At most, the engineer’s drawing of the septic system attached to the Approval

Request Form raises a fact issue as to whether Rodriguez complied with this requirement. The

engineer’s drawing cannot establish as a matter of law that Rodriguez submitted the“full set of plans



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and specifications” that were required by the Declaration as a prerequisite to the Association’s

approval.

        In addition, the Conditional Site Plan Approval stated only that the “location and size” of the

home were accepted and approved. The location and size of the home were provided to the

Association by Rodriguez because the Approval Request Form stated that the dimension of the house

would be 51 feet wide and 54 feet long and contain 2000 square feet and the engineer’s drawing

diagramed the location of the house. We cannot, however, conclude that the Association’s

conditional approval stating that the location and size of the home were approved conclusively

established, as a matter of law, that all of the details of the construction were approved by the

Association given that: (1) the Approval Request Form noted a distinction between final approval

and conditional approval; (2) the Association sent notice of the roof’s noncompliance within thirty

days after the Approval Request From was submitted; and (3) a fact issue exists with regard to

whether Rodriguez submitted a “dimensioned site plan drawing” or a “full set of plans and

specifications.” Cf. Hardee v. Westminster Glen Phase I Homeowner’s Ass’n, Inc., No. 03-00-

00445-CV, 2001 WL 223383, at *4 (Tex. App.—Austin Mar. 8, 2001, no pet.) (finding homeowner

failed to submit development plan required for approval by architectural control committee).

Accordingly, we conclude that the trial court erred in granting summary judgment in favor of

Rodriguez.1




        1
         … Because we reverse on the Association’s first issue, we do not address the Association’s second issue
regarding the trial court’s inclusion of findings of fact and conclusions of law in its order.

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                                          CONCLUSION

       Because Rodriguez only moved for summary judgment on the basis that the Association had

approved the construction of the residence and the record raises genuine issues of material fact

regarding the effect of the Association’s conditional approval, we reverse the trial court’s summary

judgment and remand the cause to the trial court for further proceedings.



                                                      Rebecca Simmons, Justice




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