                    COURT OF APPEALS
                    SECOND DISTRICT OF TEXAS
                         FORT WORTH

                        NO. 02-13-00090-CV


JOE BURKETT, CAROLYN A.                         APPELLANTS
BURKETT, RANDY WILLIAMS,
BRYON ROSS BAIRD, DR. NINA
SPEAIRS, WILLIAM WADE, BOBBY
SIDES, MARSHA SIDES, DANIEL
HOENIG, MARGARET HOENIG,
FRANK REED, KAREN L. REED,
STEPHEN VANDEKIEFT,
STEPHANIE VANDEKIEFT, ADAM
SIEGEL, CAROL SIEGEL, RAN
SHNITZER, JASON WEISER,
SHERRIE WEISER, RONALD L.
CULP, RHONDA J. CULP, CINDY L.
REHOR, RON L. RUSSELL,
DONNA M. RUSSELL, DAN E.
PETERSON, LILLIAN J.
PETERSON, JOHN LEONE,
STEPHEN O’BRIEN, RHONDA M.
O’BRIEN, AND THOMAS DIETER

                                    V.

LAKE COUNTRY PROPERTY                             APPELLEE
OWNERS ASSOCIATION, INC.


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      FROM THE 236TH DISTRICT COURT OF TARRANT COUNTY
                                     ----------

                          MEMORANDUM OPINION1

                                     ----------

      Appellants2 own properties in Lake Country Estates, an addition in Tarrant

County. They sued Appellee Lake Country Property Owners Association, Inc.

(LCPOA) because it “attempt[ed] to enforce [an] invalid restriction against them.”

The trial court granted LCPOA’s motion for summary judgment. Appellants now

appeal. We will affirm.

      In February 1971, the Amon G. Carter Foundation conveyed by warranty

deed the land known as Lake Country Estates to Lake Country Estates, Inc. In

August 1971, Lake Country Estates, Inc. filed a Dedication and Restrictions for

Lake Country Estates. The restrictions are binding on those who own property in

Lake Country Estates, and they run with the land.




      1
       See Tex. R. App. P. 47.4.
      2
       Appellants are Joe Burkett, Carolyn A. Burkett, Randy Williams, Bryon
Ross Baird, Dr. Nina Speairs, William Wade, Bobby Sides, Marsha Sides, Daniel
Hoenig, Margaret Hoenig, Frank Reed, Karen L. Reed, Stephen Vandekieft,
Stephanie Vandekieft, Adam Siegel, Carol Siegel, Ran Shnitzer, Jason Weiser,
Sherrie Weiser, Ronald L. Culp, Rhonda J. Culp, Cindy L. Rehor, Ron L. Russell,
Donna M. Russell, Dan E. Peterson, Lillian J. Peterson, John Leone, Stephen
O’Brien, Rhonda M. O’Brien, and Thomas Dieter.


                                         2
      Also in August 1971, articles of incorporation were filed for Lake Country

Estates Owners Association. In 1983, Lake Country Estates Owners Association

forfeited its charter.3 A year later, articles of incorporation were filed for LCPOA.4

      In 1998, Lake Country Estates, Inc. conveyed by special warranty deed Lot

A, Block 32 of Lake Country Estates to LCPOA. Lake Country Estates, Inc. also

conveyed by quitclaim deed “Open Green” properties within the subdivision to

LCPOA. In 1999, Lake Country Estates, Inc. assigned its dedicator rights to

LCPOA.

      Appellants filed their original petition for declaratory and injunctive relief in

September 2011, alleging (1) that LCPOA did not have the authority to enforce

any restrictions because it was not a properly created “Homeowners Association”

and (2) that even if LCPOA was legally created, property owners in Lake Country

Estates had previously adopted a particular interpretation of a restriction

involving boats, boat trailers, and recreational campers, and LCPOA was

estopped from enforcing the restriction in a manner other than as interpreted by

the property owners.       LCPOA moved for summary judgment on each of

Appellants’ claims, and the trial court granted the motion without specifying the

reasons for its ruling.


      3
     LCPOA states that the Lake Country Estates Owners Association was a
mandatory homeowners association.
      4
       Unlike the previous association, LPCOA describes itself as a voluntary
property owners association.


                                          3
      We review a summary judgment de novo. Travelers Ins. Co. v. Joachim,

315 S.W.3d 860, 862 (Tex. 2010). We consider the evidence presented in the

light most favorable to the nonmovant, crediting evidence favorable to the

nonmovant if reasonable jurors could, and disregarding evidence contrary to the

nonmovant unless reasonable jurors could not. Mann Frankfort Stein & Lipp

Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We indulge every

reasonable inference and resolve any doubts in the nonmovant’s favor. 20801,

Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008). A defendant who conclusively

negates at least one essential element of a cause of action is entitled to

summary judgment on that claim. Frost Nat’l Bank v. Fernandez, 315 S.W.3d

494, 508 (Tex. 2010); see Tex. R. Civ. P. 166a(b), (c).

      Appellants argue in their third issue that the trial court erred by granting

LCPOA summary judgment on Appellants’ claim that LCPOA lacks the authority

to enforce the restrictions.   Appellants pleaded in their original petition that

LCPOA was not legally created under chapter 203 of the property code and that

sixty percent of the residents did not approve the association as required by

section 204.006 of the property code. But as LCPOA points out, chapter 203

addresses a county attorney’s ability to enforce restrictions, and chapter 204’s

population requirements are not met. See Tex. Prop. Code Ann. § 203.003(a)

(West 2007), § 204.002 (West Supp. 2013).         Thus, neither chapter has any

application here, and the trial court did not err by granting LCPOA summary

judgment on Appellant’s enforcement claim.


                                        4
      Nonetheless, the general rule is that any person entitled to benefit under

the terms of a restrictive covenant may enforce it. Girsh v. St. John, 218 S.W.3d

921, 923 (Tex. App.—Beaumont 2007, no pet.). This has been interpreted to

mean that an interested property owner may sue to enforce a restrictive

covenant. Id. Indeed, the Dedication here provides in relevant part,

      Dedicator, or owners of any of the above land shall have the right to
      sue for and obtain an injunction, prohibitive, or mandatory, to
      prevent the breach of or to enforce the observance of the restrictions
      and covenants above set forth, in addition to the ordinary legal
      action for damages . . . . [Emphasis added.]

LCPOA presented summary judgment evidence that in 1998, Lake Country

Estates, Inc. conveyed by special warranty deed Lot A, Block 32 of Lake Country

Estates to LCPOA.      Therefore, LCPOA may enforce the restrictions in its

capacity as a property owner.5     Appellants’ arguments that LCPOA has no

authority to enforce the restrictions as the owner of common areas, or “Open

Green” properties, are therefore inapposite. We overrule Appellants’ third issue.

      Appellants argue in their second issue that the trial court may have granted

more relief than LCPOA requested if, in determining LCPOA’s authority to

enforce the restrictions, the trial court concluded (1) that LCPOA is the

mandatory association expressly described in the Dedication, which has the

power to enforce the restrictions, or (2) that LCPOA was properly operating

pursuant to the dedicator rights that Lake Country Estates, Inc. assigned it in

      5
       This memorandum opinion does not address LCPOA’s authority, if any, to
function in the place of Lake Country Estates Owners Association.


                                        5
1999. We have not held that the trial court properly granted LCPOA summary

judgment for either of those reasons. We overrule Appellants’ second issue.

      Appellants argue in their fourth issue that the trial court erred by granting

summary judgment on their promissory estoppel claim. Appellants point out that

they filed thirteen affidavits in the trial court demonstrating that in 2005 and 2006,

LCPOA conducted two meetings “whereby it established a method by which it

would interpret the restriction governing boats and trailers.”       That restriction

provides that all boats, boat trailers, or recreational campers may be stored on

the premises “so long as they are out of sight of the street fronting the

residence,” and Appellants claim that LCPOA announced the following

interpretation for determining compliance therewith: “[I]f the boat or trailer could

not be seen when standing at a point in the center of the property along the

street fronting the residence, then no violation would be recognized by LCPOA.”

Pointing to several of the affidavits, Appellants state that a number of

homeowners altered their respective properties “[i]n reliance on this interpretation

by LCPOA.” Consequently, according to Appellants, LCPOA is estopped from

enforcing the restriction in a manner other than as established at the 2005 and

2006 meetings.

      Although primarily a defensive issue, promissory estoppel is also a cause

of action available to a promisee who has acted to his detriment in reasonable

reliance on an otherwise unenforceable promise. Wheeler v. White, 398 S.W.2d

93, 96 (Tex. 1965). Thus, promissory estoppel is not applicable to a promise


                                          6
covered by a valid contract between the parties. Richter v. Wagner Oil Co., 90

S.W.3d 890, 899 (Tex. App.—San Antonio 2002, no pet.). If an alleged promise

is part of a valid contract, the promisee cannot disregard the contract and sue for

reliance damages under the doctrine of promissory estoppel. Stable Energy,

L.P. v. Kachina Oil & Gas, Inc., 52 S.W.3d 327, 336 (Tex. App.—Austin 2001, no

pet.).

         The deed restriction at issue here is a restrictive covenant. See Tex. Prop.

Code Ann. § 202.001(4) (West Supp. 2013) (defining restrictive covenant). A

restrictive covenant is a contractual agreement between the seller and the

purchaser of real property. Ski Masters of Tex., LLC v. Heinemeyer, 269 S.W.3d

662, 668 (Tex. App.—San Antonio 2008, no pet.); cf. Pilarcik v. Emmons, 966

S.W.2d 474, 478 (Tex. 1998) (stating that restrictive covenants are subject to the

general rules of contract construction). When an owner of a tract subdivides and

sells the subdivided parcels to separate grantees, imposing restrictions on the

use of each parcel pursuant to a general plan or scheme of development, each

grantee may enforce the restrictions against each other grantee. Ski Masters of

Tex., 269 S.W.3d at 668; see Hooper v. Lottman, 171 S.W. 270, 272 (Tex. Civ.

App.—El Paso 1914, no writ); see also Davis v. Huey, 620 S.W.2d 561, 565‒66

(Tex. 1981) (explaining that a purchaser is bound by restrictive covenants

attaching to the property of which he has actual or constructive notice).




                                           7
      Here, consistent with the law, the Dedication expressly confirms the

contractual nature of the restrictions set forth therein, including the restriction at

issue here involving boats, boat trailers, and recreational campers:

      The restrictions herein set forth shall run with the land and be
      binding upon the Dedicator, its successors and assigns, and all
      parties claiming by, through or under it shall be taken to hold, agree
      and covenant with the Dedicator and its successors in title, and with
      each of them, to conform to and observe all restrictions and
      covenants herein as to the use of said lots . . . .

Because the restriction is a valid contractual obligation to which Appellants are

bound, promissory estoppel does not apply, including to allow Appellants to

recover damages allegedly sustained in reliance on LCPOA’s purported

interpretation of the enforceable restriction.       See Richter, 90 S.W.3d at 899.

Promissory    estoppel    permits   damages         for   justifiable   reliance    on   an

unenforceable promise, not an interpretation of an otherwise enforceable

promise. Appellants’ promissory estoppel claim has no other basis.6

      While    promissory    estoppel   is    not    a    viable   claim    under    these

circumstances, Appellants are not without any remedy. As LCPOA argued in its

motion for summary judgment, the Dedication provides a method for Appellants

to amend the restrictions. It states,

      [A] majority of the owners of the fee title to the lots contained in this
      Dedication may agree to change or amend said covenants and

      6
       All of the affidavits state that the affiants “do not believe that the
enforcement of the covenant under any other interpretation would be fair after
[we had] relied upon what the member[s] of this organization had previously
stated.” [Emphasis added.]


                                          8
      restrictions, in whole or in part, by executing and acknowledging an
      appropriate agreement in writing for such purpose and filing the
      same in the manner then required for recording land instruments at
      least one (1) year before the expiration of the first twenty-five (25)
      year term or the expiration of any subsequent fifteen (15) year period
      thereafter.

Appellants may therefore seek to amend the restriction regarding boats, boat

trailers, and recreational campers. We hold that the trial court did not err by

granting LCPOA’s motion for summary judgment on Appellants’ promissory

estoppel claim. We overrule Appellants’ fourth issue.

      In their “Issues Presented” section, Appellants’ first issue questions

whether the trial court erred by granting a general summary judgment. To the

extent that this issue is not subsumed by one of Appellants’ other issues,

Appellants provide no argument or analysis to support it. It is therefore waived.

See Tex. R. App. P. 38.1(i) (requiring a clear and concise argument for the

contentions made with appropriate citations). We overrule Appellants’ first issue.

      Having overruled all of Appellants’ issues, we affirm the trial court’s

judgment.



                                                  /s/ Bill Meier

                                                  BILL MEIER
                                                  JUSTICE

PANEL: MCCOY, MEIER, and GABRIEL, JJ.

DELIVERED: April 17, 2014




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