                               NUMBER 13-07-070-CV

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


CARL L. WELLS AND LISA A. WELLS,                                              Appellants,

v.

LOMITA SUBDIVISION, ARCHITECTURAL
CONTROL COMMITTEE,                                                              Appellee.


  On appeal from the 138th District Court of Cameron County, Texas.


                          MEMORANDUM OPINION

     Before Chief Justice Valdez and Justices Garza and Benavides
                Memorandum Opinion by Justice Garza

       This suit involves the enforceability and the enforcement of restrictive covenants

governing the Lomita Subdivision in Cameron County, Texas. Initially, appellee, Lomita

Architectural Control Committee (“Committee”), sued appellants, Carl and Lisa Wells (“the

Wellses”), for injunctive relief, claiming that they had violated the subdivision’s covenants.
The Wells brought a counterclaim against, among others, Committee members Gordon

and Maria Briscoe (“the Briscoes”), for declaratory relief and civil damages for violating the

covenants and to declare the subdivision covenants invalid. The Wellses take issue with

the trial court’s granting of no-evidence and traditional motions for summary judgment filed

jointly by the Committee and the Briscoes as to the Wellses’ counterclaim for declaratory

relief. By one issue, the Wellses contend that the trial court erred in granting the joint

motions for summary judgment filed by the Committee and the Briscoes because material

fact issues exist. We affirm.

                        I. FACTUAL AND PROCEDURAL BACKGROUND

       The Wellses owned two lots within the Lomita Subdivision in Cameron County,

Texas. After the Wellses began construction on their two lots, the Committee was

informed that the Wellses were in violation of various provisions of sections 22, 44, 47, and

50(A) of the subdivision covenants. These provisions provided, in relevant part, the

following:

                          DRIVEWAYS AND PARKING AREAS

       22. All driveways and parking areas shall be constructed of Portland cement
       concrete, asphalt, brick, or clay tile. Caliche, gravel, dirt or grass driveways
       or parking areas are not permitted. Lot Owners shall provide adequate
       parking areas for family members and guests. Lot Owners shall place at
       each road ditch crossing an eighteen (18") inch culvert equipped with
       tapered concrete caps. The layout of the driveways and parking areas shall
       be aesthetically pleasing. . . .

              ....

                                         ANIMALS

       44. Other than dogs, cats or other common household pets not being raised
       or bred for commercial purposes, no animals of any kind may be raised,
                                              2
        bred, kept or maintained on any Lot, except as provided in Paragraph 45.
        Dog houses, rabbit hutches, and all other pens, shelters, and enclosures for
        household pets shall be located behind the principal dwelling and adequately
        screened by an approved fence so as not to be seen from public roads or
        neighboring Lots. . . .

                 ....

                                 TRASH, RUBBISH AND GARBAGE

        47. No trash, rubbish, or debris of any kind shall be kept or allowed to remain
        on any Lot. Each Lot Owner or occupant shall remove such prohibited
        material from his Lot at regular intervals at his expense. Prior to such
        removal, all such prohibited matter shall be placed in sanitary refuse
        containers in an area adequately screened by planting or fencing so as not
        to be seen from neighboring Lots or public roads. Reasonable amounts of
        contruction materials and equipment may be stored upon a Lot for
        reasonable periods of time during construction of improvements. . . .

                 ....

                                       GENERAL RESTRICTIONS

        50. (A) No inoperable vehicle, boat, trailer, recreational vehicle, camping unit,
        bus, commercial-use truck, self-propelled or towable machinery or
        equipment, or any other thing deemed objectionable by the Committee, shall
        be permitted to be parked or stored on any Lot except in an approved
        enclosed structure or behind an approved fence so as not to be visible from
        public roads or adjacent Lots; provided, that during the building of
        improvements on a Lot, necessary construction vehicles may be parked
        thereon. . . .

        Specifically, the Committee noted that (1) the Wellses failed to install an eighteen-

inch culvert with tapered concrete ends for one of the two ditch crossings on the Wellses

property;1 and (2) the Wellses had a camper, a boat with a trailer, building materials, and

a dog house stored in plain view from public road and adjacent lots, in violation of the

        1
           The W ellses received perm ission from the Com m ittee to install a circular driveway on their property.
Construction began in August 2002, and the construction com pany proceeded to create two ditch crossings
for the circular driveway. However, the W ellses changed their m inds and only decided to use one of the ditch
crossings for their driveway. As a result, the rem aining ditch crossing was unpaved and did not have the
required eighteen inch culvert with tapered concrete ends.
                                                        3
subdivision covenants. The Committee sent three letters, dated March 26, 2004, May 10,

2004, and May 26, 2004, to the Wellses as notification of the violations of the covenants.

The record indicates that the Wellses failed to respond to any of the letters from the

Committee and refused to cure the alleged violations.

       The Committee filed its original petition against the Wellses on July 9, 2004. In its

original petition, the Committee sought injunctive relief for the Wellses’ violations of the

subdivision covenants. The Wellses filed an amended answer on August 5, 2004, denying

all of the Committee’s allegations and asserting that the subdivision covenants were

ambiguous and were “unenforceable and/or invalid because of Waiver, Plaintiff’s unclean

hands and under equitable principles. . . .” The Wellses further stated a claim for the

recovery of attorney’s fees and court costs from the Committee.

       Subsequently, on November 19, 2004, the Wellses filed a counterclaim for

declaratory relief pursuant to chapter 37 of the Texas Civil Practice and Remedies Code

against the Committee, alleging that the subdivision covenants were unenforceable and

that the Committee, in exercising its discretion, enforced the covenants in an “arbitrary,

capricious and/or discriminatory” way. See TEX . CIV. PRAC . & REM . CODE. ANN . §§ 37.009

(Vernon 1997). The Wellses, in support of their declaratory judgment action, asserted that

the Briscoes—members of the Committee—were themselves in violation of sections 12,

47, 50, and 53 of the subdivision’s covenants.2 Specifically, the Wellses stated that the

       2
           Sections 12 and 53 of the subdivision covenants provided, in relevant part, the following:

                                FULLY PROTECTED RESIDENTIAL AREA

       12. Each Lot shall be used solely and exclusively as the personal residence of a single fam ily,
       and shall not be used for any industrial, com m ercial or other business purpose. . . .




                                                      4
Briscoes: (1) violated section 12 by allowing their lot to be used as a personal residence

by others; (2) violated section 47 by allowing trash, rubbish, and debris to be kept on their

lot; (3) violated section 50 by allowing an inoperable vehicle, a trailer, on their lot that was

visible from the public roads and the adjoining lots; and (4) violated section 53 “by having

a temporary residence—a trailer used by five or six individuals for their residence.”

Additionally, the Wellses requested civil damages and attorney’s fees pursuant to section

37.009 of the Uniform Declaratory Judgments Act and section 38.001 of the Texas Civil

Practice and Remedies Code. See id. §§ 37.009, 38.001 (Vernon 1997).

       On March 30, 2006, the Committee and the Briscoes filed joint motions for summary

judgment on traditional and no-evidence grounds. In their motions, they asserted that they

were entitled to a judgment as a matter of law because: (1) the Wellses failed to join all

necessary, interested, or indispensable parties as required by section 37.006 of the civil

practice and remedies code, see id. § 37.006 (Vernon 1997); (2) the Wellses improperly

recast their defenses and affirmative defenses to the Committee’s original claims as

affirmative claims for declaratory relief; (3) the Wellses have no justiciable controversy that

is separate or distinguishable from their defenses in the Committee’s underlying suit, and,

therefore, the Wellses’ claims are moot; (4) the Committee is not a proper party to the

Wellses’ suit for declaratory relief; (5) the Committee did not violate sections 12, 47, 50,

or 53 of the subdivision covenants because it owns no lots; (6) the Committee has not


                                       GENERAL RESTRICTIONS

               ....

       53. No structure of a tem porary nature, or trailer, m obile hom e, tent, shack, garage, barn or
       other outbuilding m ay be used as a tem porary or perm anent residence.



                                                      5
been arbitrary or capricious in enforcing the covenants; (7) the Briscoes did not violate

sections 12, 47, 50, or 53 of the subdivision covenants; and (8) the subdivision covenants

waive and bar claims against the Briscoes for enforcing or failing to enforce the covenants.

        In response to a plea for abatement filed by the Committee and the Briscoes on

March 20, 2006, the trial court abated the suit by an order signed on May 17, 2006. The

trial court ordered the Wellses to join all lot owners in the Lomita Subdivision as third-party

defendants to their action for declaratory relief.

        On May 22, 2006, the Wellses filed a second amended counterclaim for declaratory

judgment and damages.              In their counterclaim, the Wellses made the same legal

contentions as in their previously filed cross-action and claimed that they were entitled to

civil damages and attorney’s fees pursuant to chapter 37 of the Uniform Declaratory

Judgments Act, Section 38.001 of the Texas Civil Practice and Remedies Code, and

sections 5.006 and 202.004 of the property code. See id. § 37.009; see also TEX . PROP.

CODE ANN . §§ 5.006, 202.004 (Vernon 2004). In addition, the Wellses indicated that the

necessary parties would be served with citation as third-party defendants to their action for

declaratory relief.3

        The Committee and the Briscoes jointly filed amended traditional and no-evidence

motions for summary judgment on July 14, 2006, making the same contentions as in their

        3
           The necessary parties to the W ellses’ action for declaratory relief were: (1) Dr. and M rs. Joseph
Leslie Pean; (2) Mr. and Mrs. Greg Garcia; (3) Mr. and Mrs. Richard Ullrich; (4) Mrs. Maricela Garcia; (5) Mr.
and Mrs. C.A. Naylor; (6) Mr. and Mrs. Joel N. Reagan; (7) Mr. and Mrs. Manuel Banda, Jr.; (8) Mr. and Mrs.
John Kram , III; (9) Mr. and Mrs. Anselm o Davila; (10) Mr. and Mrs. Sam uel Davila; and (11) Mr. and Mrs.
Jesus P. Garza. The W ellses noted in their second am ended counterclaim that these parties were all of the
lot owners in the Lom ita Subdivision. On appeal, the C om m ittee and the Briscoes note that the W ellses
neglected to serve Brad Bierstadt, the W ellses’ next-door neighbor. The record contains original answers filed
by the Ullirchs, the Naylors, Mr. and Mrs. Sam uel Davila, the Bandas, Mr. and Mrs. Anselm o Davila, and the
Reagans. These individuals are not parties to this appeal.



                                                      6
original motions for summary judgment except for the contention that the Wellses had not

properly joined all relevant parties.

         On November 15, 2006, the trial court granted the amended motions for summary

judgment jointly filed by the Committee and the Briscoes. In its order, the trial court

determined that the Wellses should take nothing on their counterclaims against the

Committee, the Briscoes, and all of the third party defendants.

         On November 27, 2006, third-party defendants, Dr. and Mrs. Joseph Leslie Pean

filed a motion to sever with the trial court requesting that the Wellses’ claims against the

all of the third-party defendants, including the Briscoes, be severed from the Wellses’

counterclaims against the Committee and the Briscoes. The Wellses filed a motion for

new trial, a motion to set aside the summary judgment order, and a motion for

reconsideration on December 14, 2006. The trial court granted Peans’ motion to sever and

denied the Wellses’ motion for new trial, motion to set aside the summary judgment order,

and motion for reconsideration on January 9, 2007.4 Subsequently, on January 25, 2007,

the Wellses filed a request for findings of fact and conclusions of law with the trial court.

See TEX . R. CIV. P. 296. The trial court did not provide findings of fact or conclusions of

law. See IKB Indus., Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 442 (Tex. 1997) (noting that

a party is not entitled to findings of fact and conclusions of law following summary

         4
           In its order granting the Peans’ m otion to sever, the trial court ordered that the W elles’ counterclaim s
against the Com m ittee and the W elles’s counterclaim s against all of the third-party defendants, including the
Briscoes, be severed into a separate lawsuit. W ith respect to this lawsuit, the trial court noted that it “is now
a final judgm ent which disposes of all claim s between all parties in the severed cause num ber; it is intended
to create a final and appealable judgm ent as to the claim adjudicated in the Novem ber 15, 2006 order.”
Therefore, this action is final and appealable. See In re Burlington Coat Factory, 167 S.W .3d 827, 830 (Tex.
2005); Ritzell v. Espeche, 87 S.W .3d 536, 538 (Tex. 2002); Lehmann v. Har-Con Corp., 39 S.W .3d 191, 200
(Tex. 2001) (holding that when the trial court resolves som e claim s by sum m ary disposition, leaving other
claim s unresolved, the judgm ent is final if it unequivocally states it finally disposes of all claim s).



                                                          7
judgment). This appeal ensued.

                                  II. STANDARD OF REVIEW

A. Traditional Motion for Summary Judgment

       Under a traditional motion for summary judgment, the movant must establish that

no material fact issue exists and that it is entitled to judgment as a matter of law. TEX . R.

CIV. P. 166a(c); Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002); Alaniz v.

Hoyt, 105 S.W.3d 330, 345 (Tex. App.–Corpus Christi 2003, no pet.); Mowbray v. Avery,

76 S.W.3d 663, 690 (Tex. App.–Corpus Christi 2002, pet. denied). After the movant

produces evidence sufficient to show it is entitled to summary judgment, the non-movant

must then present evidence raising a fact issue. See Walker v. Harris, 924 S.W.2d 375,

377 (Tex. 1996).

B. No-Evidence Motion for Summary Judgment

       Texas Rule of Civil Procedure 166a(i) provides that "a party without presenting

summary judgment evidence may move for summary judgment on the ground that there

is no evidence of one or more essential elements of a claim or defense on which an

adverse party would have the burden of proof." TEX . R. CIV. P. 166a(i). The trial court

must grant the motion if the non-movant does not produce summary judgment evidence

raising a genuine issue of material fact on each element challenged. Id.; Mack Trucks v.

Tamez, 206 S.W.3d 572, 582 (Tex. 2006). The non-movant must produce more than a

scintilla of probative evidence to raise an issue of material fact. Oasis Oil Corp. v. Koch

Ref. Co. L.P., 60 S.W.3d 248, 252 (Tex. App.–Corpus Christi 2001, pet. denied). More

than a scintilla of evidence exists when the evidence "rises to a level that would enable


                                              8
reasonable and fair-minded people to differ in their conclusions." Merrell Dow Pharms.,

Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). We "must examine the entire record in

the light most favorable to the non-movant, indulging every reasonable inference and

resolving any doubts against the motion." Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex.

2006) (per curiam); see City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex. 2005).

Moreover, “when a trial court’s order granting summary judgment does not specify the

ground or grounds relied on for its ruling, summary judgment will be affirmed on appeal if

any of the theories advanced are meritorious.” Dow Chem. Co. v. Francis, 46 S.W.3d 237,

242 (Tex. 2001) (quoting Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989)).

                                       III. ANALYSIS

       In their sole issue on appeal, the Wellses contend that the trial court erred in

granting the traditional and no-evidence motions for summary judgment filed jointly by the

Committee and the Briscoes. Specifically, the Wellses argue that material fact issues exist

and that a justiciable controversy remains. The Wellses also contend that because the

Committee exercised its discretionary enforcement power in an arbitrary, capricious, and

discriminatory manner and because of waiver, unclean hands, and under other equitable

principles, the covenants are unenforceable. Conversely, the Committee and the Briscoes

contend that the Wellses have not provided sufficient evidence to establish that the

subdivision’s covenants were unenforceable. The Committee and the Briscoes argue that

the Wellses’ declaratory relief claims “were a ploy to transmute their defenses into a DJA

[Uniform Declaratory Judgment Act] claim to threaten attorney’s fees.”         Finally, the

Committee and the Briscoes assert that the Wellses’ claims must fail because the



                                            9
summary judgment evidence demonstrates that the Wellses failed to provide the

Committee with written notice of the alleged violations; therefore, the Wellses could not file

a private suit to enforce the covenants.

        As previously mentioned, the trial court granted summary judgment as to the

Wellses’ counterclaims for declaratory relief.                     The Wellses’ contentions in their

counterclaims for declaratory relief are virtually identical to the affirmative defenses raised

in the underlying suit for injunctive relief.5 Declaratory relief is not available to settle a

dispute that is currently pending before a court. BHP Petroleum Co., Inc. v. Millard, 800

S.W.2d 838, 841 (Tex. 1990) (“The Declaratory Judgments Act is not available to settle

disputes already pending before a court.”) (internal quotations omitted); Staff Ind., Inc. v.

Hallmark Contracting, Inc., 846 S.W.2d 542, 547-48 (Tex. App.–Corpus Christi 1993, no

writ) (same); John Chezik Buick v. Friendly Chevrolet, 749 S.W.2d 591, 594 (Tex.

App.–Dallas 1988, writ denied) (concluding that a declaratory judgment counterclaim was

not properly brought because the issue raised by the defendant was already before the

court as part of the plaintiff’s case). Furthermore, a defendant cannot institute a cross-

action for declaratory relief if the cross-action fails to present a justiciable controversy

separate from the underlying suit. See Hitchcock Props., Inc. v. Levering, 776 S.W.2d 236,

239 (Tex. App.–Houston [1st Dist.] 1989, writ denied); see also Narisi v. Legend Diversified

        5
          The W ellses argued in their first am ended answer that the subdivision covenants were am biguous
and that the subdivision covenants were “unenforceable and/or invalid because of W aiver, Plaintiff’s unclean
hands and under equitable principles. . . .” In their counterclaim for declaratory relief, the W ellses asserted
that the subdivision covenants were unenforceable and that the Com m ittee, in exercising its discretion,
enforced the covenants in an “arbitrary, capricious and/or discrim inatory” way. Essentially, the thrust of the
W ellses’ affirm ative defenses to the underlying suit for injunctive relief and their counterclaim s pertain to the
sam e issues— the enforceability of the subdivision covenants and the Com m ittee’s enforcem ent of the
covenants.




                                                        10
Invs., 715 S.W.2d 49, 51-52 (Tex. App.–Dallas 1986, writ ref’d n.r.e.) (holding that a

counterclaim brought under the DJA that presents no new controversies, but is engineered

solely to pave an avenue for an award of attorney’s fees, is not proper).

         It is clear to this Court that the Wellses have refashioned their affirmative defenses

in the underlying suit for injunctive relief as counterclaims for declaratory relief, which is

improper.6 See Millard, 800 S.W.2d at 841; Hitchcock, 776 S.W.2d at 239; Narisi, 715

S.W.2d at 51-52. As such, the Wellses failed to present a justiciable controversy to the

trial court. See Hitchcock, 776 S.W.2d at 239. “A judicial decision reached without a case

or controversy is an advisory opinion, which is barred by the separation of powers provision

of the Texas Constitution.” Brooks v. Northglen Ass’n, 141 S.W.3d 158, 164 (Tex. 2004)

(citing TEX . CONST . art. II, § 1; Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 223 (Tex.

2002); Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993)).

         Because we have found that the Wellses have not raised a justiciable controversy,

we conclude that no fact issues remain on the Wellses’ action for declaratory relief and that

the trial court did not err in granting the motions for summary judgment jointly filed by the

Committee and the Briscoes. Accordingly, we overrule the Wellses’ sole issue on appeal.


         6
            In response to the contentions m ade by the Com m ittee and the Briscoes that they have not raised
a justiciable controversy, the W ellses argue that the holdings in Lovelace v. Bandera Cemetery Association,
545 S.W .2d 194, 197-98 (Tex. App.–San Antonio 1976, writ ref’d n.r.e.) and McGuire v. Davis, 483 S.W .2d
553, 555-56 (Tex. Civ. App.–W aco 1972, writ ref’d n.r.e.) provide that a declaratory judgm ent is the
appropriate m eans for determ ining the validity, applicability, or enforceability of restrictions on the use of land.
However, this contention was inadequately briefed. See T EX . R. A PP . P. 38.1. In addition, the Lovelace and
McGuire cases do not address a situation where a party converts its affirm ative defenses in one suit into
claim s in a declaratory judgm ent action; therefore, they are not persuasive in addressing the issue of
justiciability. The McGuire case, in particular, states that “[t]o entitle a party to declaratory judgm ent relief, our
Suprem e Court has held that (a) there shall be a real controversy (som etim es called a “justiciable
controversy”) between the parties, which (b) will be actually determ ined by the judicial declaration sought.”
McGuire, 483 S.W .2d at 555. Based on the record before us, the W ellses have not proven that a justiciable
controversy exists to support their declaratory judgm ent action.



                                                         11
                                      IV. CONCLUSION

        Having overruled the Wellses’ sole issue on appeal, we affirm the judgment of the

trial court.

                                                _______________________
                                                DORI CONTRERAS GARZA,
                                                Justice

Memorandum Opinion delivered and
filed this the 29th day of April, 2008.




                                           12
