      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-01-00082-CV



                                     Barbara Berg, Appellant

                                                  v.

                           Roy L. Kinsey and Bill Maddox, Appellees




      FROM THE DISTRICT COURT OF TRAVIS COUNTY, 201ST JUDICIAL DISTRICT
        NO. GN0-02032, HONORABLE MARGARET A. COOPER, JUDGE PRESIDING




               Appellees Roy Kinsey and Bill Maddox, property owners in the Village Oak West

Subdivision, filed suit against appellant Barbara Berg and claimed that she violated the residential

subdivision’s deed restrictions when she placed a mobile home on her property. Kinsey and Maddox

sought a declaratory judgment, a permanent injunction, attorney’s fees, and costs. 1 The district court

granted Kinsey’s and Maddox’s second motion for summary judgment, declared that Berg violated

the deed restrictions by placing a mobile home on her property without approval from the developer’s

board of directors, ordered that Berg remove the mobile home, and enjoined her from placing a

mobile home on any other property in the subdivision that she owns or may own in the future. Berg




  1
   Kinsey and Maddox also sought damages pursuant to section 202.004(c) of the Texas Property
Code. See Tex. Prop. Code Ann. § 202.004(c) (West 1995). The district court granted Kinsey’s and
Maddox’s motion to dismiss the claim for damages and it is not an issue in this appeal.
raises four issues contending that the district court erred in granting summary judgment. We will

reverse the judgment and remand the cause to the district court for further proceedings.


                                            Background

               Berg does not reside in the subdivision. She has instead purchased several lots, sold

the underlying land to individual purchasers by contract for deed and sold each purchaser a mobile

home to place on their lot. In 1999, Berg purchased Lot 8, Block C (“the Lot”) in the subdivision

which is near lots owned by Kinsey and Maddox.2 In June of 2000, Kinsey and Maddox learned that

Berg planned to move a mobile home onto the Lot. Despite the fact that there were other mobile

homes in the subdivision, Kinsey told Berg he thought she would violate the subdivision’s deed

restrictions by having a mobile home on the Lot. Soon after their conversation, Berg moved a mobile

home onto the Lot, installed a septic system and had water, electricity and telephone services

connected to the mobile home.

               At the time the subdivision was established in May 1971, Jacmac, Inc., the developer,

filed in the Travis County deed records certain deed restrictions for the subdivision. At issue are two

provisions in those deed restrictions: (1) paragraph eight provides, “All buildings erected on the

premises shall be of new construction and materials, except mobile homes, and they will be by

approval of the Board of Directors of Jacmac, Inc., only;” and (2) paragraph thirteen provides,


       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 ten (10) years from the date these
       covenants are recorded, after which time said covenants shall be automatically

  2
    Record references vary about whether the lot at issue is Lot 7 or Lot 8. We will follow the final
judgment and the lot we will refer to is “Lot 8, Block C.”

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       extended for successive period of ten (10) years unless an instrument signed by a
       majority of the then owners of said land has been recorded, agreeing to change said
       covenants in whole or part.


               On July 18, 2000, Kinsey and Maddox sued Berg and claimed that she violated

paragraph eight of the deed restrictions because she failed to obtain approval from the Board of

Directors of Jacmac, Inc. (“the Board”) to place the mobile home on the Lot. They also sought a

permanent injunction that would require Berg to remove the mobile home on the Lot and would

restrain Berg from placing a mobile home on any property in the subdivision in the future. After Berg

filed a general denial, Kinsey and Maddox moved for summary judgment which the district court

overruled.

               In their second motion for summary judgment, Kinsey and Maddox contended that

paragraph eight of the deed restrictions provided that a property owner must receive approval from

the Board before placing a mobile home on property in the subdivision. Kinsey and Maddox also

contended that a majority of the property owners had not filed a written instrument in the Travis

County deed records changing or amending the May 1971 deed restrictions so that those deed

restrictions remained in effect. They contended that paragraphs eight and thirteen in the deed

restrictions were unambiguous and asked the district court to construe them as a matter of law.

Finally, they contended that because Berg did not receive approval from the Board to put a mobile

home on her property she violated the deed restrictions as a matter of law.

               Kinsey’s and Maddox’s summary-judgment proof included among other things

affidavits from Kinsey and Maddox, as well as an affidavit from L. O. Jackson, an owner and officer

of Jacmac, Inc. from its creation in October 1970. Kinsey and Maddox both stated in their affidavits


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that they have personal knowledge that there has never been a decision by the majority of the

property owners to terminate the 1971 deed restrictions. Significantly, Jackson stated in his affidavit

that Jacmac, Inc. ceased operations on December 21, 1982.

               Berg responded to the motion and submitted her own affidavit as summary-judgment

proof. Although she raised other issues in her response and her affidavit, she conceded that she did

not obtain approval from the Board to place the mobile home on the Lot. She stated in her affidavit

that, “[she] attempted to locate Jacmac and [] was told by the Secretary of State that it had ceased

to exist.”

               The district court granted summary judgment and ruled that there were no issues of

material fact, that Berg breached the deed restrictions which have not terminated by placing or

allowing a mobile home to be placed on the Lot without approval from the Board. Additionally, the

district court determined that there was a substantial likelihood that Berg would place or allow other

mobile homes to be placed on other property she owns in the subdivision. The district court ordered

Berg to remove the mobile home from the Lot and to remove any other mobile homes from property

she owns in the subdivision. Further, the district court enjoined Berg from placing or allowing a

mobile home of any kind to be placed on property she owns or may hereinafter acquire in the

subdivision. Finally, the district court ordered Berg to pay Kinsey’s and Maddox’s attorney’s fees.


                                             Discussion

               The standards for reviewing a summary judgment are well established. The party

moving for summary judgment has the burden of showing 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.


                                                  4
Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985); Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex. 1972).

Summary judgments must stand on their own merit. Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217,

223 (Tex. 1999). Accordingly, the nonmovant need not have answered or responded to the motion

to contend on appeal that the movant’s summary-judgment proof is insufficient as a matter of law to

support summary judgment. Id. A traditional motion for summary judgment is properly granted

when the movant establishes that there are no genuine issues of material fact to be decided and that

it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Rhone-Poulenc, 997 S.W.2d

at 222; Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991). A plaintiff moving for

summary judgment must conclusively prove all essential elements of its claim. KPMG Peat Marwick

v. Harrison County Housing Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999); MMP, Ltd. v. Jones, 710

S.W.2d 59, 60 (Tex. 1986). The summary judgment proof is reviewed by indulging every reasonable

inference in favor of the nonmovant and resolving all doubts against the movant. KPMG, 988 S.W.2d

at 748.

               On appeal, in order to sustain the summary judgment, the proof must have established

that Berg violated the deed restrictions as a matter of law. Among the appellate issues Berg raises

is that the district court erred in granting summary judgment because Kinsey’s and Maddox’s

undisputed proof showed that Jacmac, Inc. ceased operations in 1982. Berg argues that she did not

violate the deed restrictions because no “Board of Directors of Jacmac, Inc.” existed from which she

might seek approval for the mobile home. Berg contends that, consequently, Kinsey and Maddox

failed to show that she violated the deed restrictions as a matter of law.




                                                  5
                The summary-judgment proof conclusively established that in the year 2000 Jacmac,

Inc. was a defunct company; consequently, no board of directors existed from which Berg could have

sought authorization for placing a mobile home on her property. Assuming without deciding that the

May 7, 1971 deed restrictions remain in effect and assuming without deciding that the deed

restrictions are not ambiguous in that they require the Board to authorize the placement of a mobile

home on property in the subdivision, we hold that Kinsey and Maddox have failed to show that Berg

violated the deed restrictions as a matter of law. We sustain Berg’s fourth issue.


                                              Conclusion

                Having determined that Kinsey and Maddox failed to establish that Berg violated the

deed restrictions as a matter of law, it is not necessary for us to address Berg’s three remaining issues.

The judgment is reversed and the cause is remanded to the district court for further proceedings.




                                                Lee Yeakel, Justice

Before Chief Justice Aboussie, Justices Yeakel and Patterson

Reversed and Remanded

Filed: November 1, 2001

Do Not Publish




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