Opinion filed September 3, 2009




                                                          In The


   Eleventh Court of Appeals
                                                       __________

                                               No. 11-08-00022-CV
                                                   __________

                                   PHYLLIS A. MORTON, Appellant

                                                              V.

             PARADISE COVE PROPERTY OWNERS
   ASSOCIATION, GLENN HANSON, CHARLES R. SHOTWELL, AND
                SHERLYN SHOTWELL, Appellees


                                   On Appeal from the 258th District Court

                                             San Jacinto County, Texas

                                        Trial Court Cause No. CIV11,234


                                    MEMORANDUM OPINION

       This is an appeal from a summary judgment granted in favor of appellees.1 We affirm.
Appellant, Phyllis A. Morton, was a property owner in the Paradise Cove Subdivision. She instituted
the underlying action by filing suit against the Paradise Cove Property Owners Association, Inc. (the
Association) on May 10, 2005. She alleged in her original petition that the Association had violated

       1
           The appellees are Paradise Cove Property Owners Association, Glenn Hanson, Charles R. Shotwell, and Sherlyn Shotwell.
the deed restrictions applicable to the subdivision in the following respects: (1) allowing the
building of homes in Block 8 of the subdivision that are more than one story and (2) improperly
displaying signs or allowing signs to be improperly displayed in the subdivision. Appellant sought
injunctive relief and monetary damages against the Association in her original petition.
         Appellant subsequently amended her pleadings by expanding her claims and adding addi-
tional defendants. She alleged that Glenn Hanson, Charles R. Shotwell, and Sherlyn Shotwell were
liable as lot owners of properties that she asserted were in violation of the applicable deed
restrictions. She also asserted that these individuals were liable in their respective capacities as
members of the Association’s Architectural Control Committee or officers of the Association.
Appellant asserted that Hanson’s home and the Shotwells’ home were in violation of the deed
restrictions because they were more than one story. She also alleged that Bruce Spickard’s home
was greater than one story. Appellant additionally asserted that Hanson constructed a driveway on
his lot that violated the applicable deed restrictions. In addition to seeking injunctive relief, appellant
asserted claims for breach of contract, fraud, and “Deceptive Business Practices.” She sought
damages for diminished property values, mental anguish, and exemplary damages.
         Appellees filed a lengthy motion for summary judgment.2 They presented both traditional
and no-evidence summary judgment grounds with respect to appellant’s claims for affirmative relief
and their counterclaims for declaratory relief. In addition to filing a response to appellees’ motion
for summary judgment, appellant filed her own motion for summary judgment on her claims for
affirmative relief.
         The trial court granted appellees’ motion for summary judgment in all respects and denied
appellant’s motion for summary judgment. The only issue remaining for consideration after the
entry of the summary judgment order was appellees’ claims for attorney’s fees. After considering
the attorney’s fees issue at a bench trial, the trial court entered a final judgment that incorporated its
previous summary judgment order. In this regard, the trial court dismissed all of appellant’s causes



         2
           Appellees included a motion for sanctions in their motion for summary judgment. The text of this combined motion
exceeded 100 pages in length. Approximately 77 pages of text in the motion were devoted to the argument and authorities in support
of appellees’ requested summary judgment. Appellees included approximately 118 exhibits with the motion, many of which consisted
of multiple sub-parts. In sum, the exhibits submitted by appellees with the motion consisted of almost 2,000 pages of additional
documents. Characterizing appellees’ motion for summary judgment as simply being “lengthy” is an understatement.

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of action and entered a declaratory judgment in favor of appellees. The trial court additionally
awarded appellees $50,200 for attorney’s fees through trial, $12,000 for attorney’s fees in the event
of an appeal to the court of appeals, $3,000 for attorney’s fees in the event a petition for discretionary
review is filed in the Texas Supreme Court, and $5,000 for attorney’s fees in the event the Texas
Supreme Court requests briefing on the merits.
                                                       Issues on Appeal
        Appellant presents two issues on appeal. She asserts in her second issue that the trial court
erred in granting appellees’ motion for sanctions. A reporter’s record from a hearing conducted on
November 15, 2006, indicates that the trial court orally granted appellees’ motion for sanctions.
However, the trial court’s final judgment does not impose sanctions against appellant, and the clerk’s
record does not contain a separate written order assessing sanctions. Furthermore, the final judgment
provides that “all relief requested in this case and not expressly granted is denied.” Appellees
acknowledge the absence of a written order imposing sanctions against appellant. In this regard,
appellees contend that appellant’s second issue is moot.3 We agree. In the absence of a written order
imposing sanctions, we overrule appellant’s second issue on the basis that it is moot.
        Appellant’s first issue reads as follows: “Whether the trial court erred in granting summary
judgment [in favor of appellees].” She cites Malooly Bros., Inc. v. Napier, 461 S.W.2d 119 (Tex.
1970), for the proposition that an appellate issue stating that the trial court erred in granting summary
judgment is sufficient to preserve error and allow argument as to all possible grounds upon which
summary judgment should have been denied. Although appellant has presented a broadly stated
issue, her arguments on appeal are quite limited. She only argues the following two grounds for
overturning the trial court’s summary judgment: (1) a genuine issue of material fact exists as to
whether the “single story” deed restriction was violated and (2) the discovery rule should apply to
prevent limitations or laches from applying. In other words, appellant has not presented any
argument in her brief regarding her claim for fraud and deceptive business practices. She also has
not presented any arguments pertaining to her deed restriction claims for signs erected in the
subdivision or the construction of a driveway on Hanson’s property. Any complaints that appellant



        3
            Appellant has not filed a response to appellees’ contention that her sanctions issue is moot.

                                                                  3
may have regarding those theories of recovery are waived because she did not present argument and
legal authorities in her brief to preserve error on those complaints. See TEX . R. APP . P. 38.1(i);
Henriquez v. Cemex Mgmt., Inc., 177 S.W.3d 241, 255 (Tex. App.—Houston [1st Dist.] 2005, no
pet.) (a general Malooly issue is sufficient to preserve a complaint only if the specific ground
challenged on appeal is supported by argument); Cruikshank v. Consumer Direct Mortgage, Inc.,
138 S.W.3d 497, 502 (Tex. App.—Houston [14th Dist.] 2004, pet. denied); Pena v. State Farm
Lloyds, 980 S.W.2d 949, 959 (Tex. App.—Corpus Christi 1998, no pet.); Jatoi v. Decker, Jones,
McMackin, Hall & Bates, 955 S.W.2d 430, 433-34 (Tex. App.—Fort Worth 1997, pet. denied).
         As set forth in the preceding paragraph, the questions to be resolved in this appeal are not
particularly complex. Despite the relative simplicity of the issues, the parties have presented this
court with a clerk’s record that consists of more than 6,000 pages. Furthermore, a nineteen-volume
reporter’s record has also been filed in this appeal even though this is an appeal from a summary
judgment.4 The record filed in this appeal is excessive because it contains many items that are
unnecessary to our review of the issues on appeal. See TEX . R. APP . P. 34.5(b)(3). A record of this
magnitude would only be justified in an appeal from a lengthy jury trial or an appeal involving
unusually difficult legal or factual issues. The task of reviewing this lengthy record has been unduly
burdensome, and it has unnecessarily delayed the disposition of this case as well as other appeals
pending before this court. The attorneys in this case, both on appeal and at the trial court level, are
admonished to use greater care in the future to limit the documents filed in a particular case to
matters that are germane to the issues at hand and that are not unnecessarily duplicative.
                                                   Standard of Review
         We review the trial court’s summary judgment de novo. Valence Operating Co. v. Dorsett,
164 S.W.3d 656, 661 (Tex. 2005); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215
(Tex. 2003). A trial court must grant a traditional motion for summary judgment if the moving party
establishes that no genuine issue of material fact exists and that the movant is entitled to judgment
as a matter of law. TEX . R. CIV . P. 166a(c); Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex.


         4
           “The appellate record consists of the clerk’s record and, if necessary to the appeal, the reporter’s record.” TEX. R.
APP. P. 34.1 (emphasis added). “No oral testimony shall be received at the hearing” on a motion for summary judgment. TEX. R.
CIV. P. 166a(c). Requesting a court reporter to record a summary judgment hearing is neither necessary nor appropriate to the
purposes of such a hearing. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 677 (Tex. 1979).

                                                               4
1991). Once the movant establishes a right to summary judgment, the nonmovant must come
forward with evidence or law that precludes summary judgment. City of Houston v. Clear Creek
Basin Authority, 589 S.W.2d 671, 678-79 (Tex. 1979). When reviewing a traditional summary
judgment, the appellate court considers all the evidence and takes as true evidence favorable to the
nonmovant. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). The appellate
court “must consider whether reasonable and fair-minded jurors could differ in their conclusions in
light of all of the evidence presented” and may not ignore “undisputed evidence in the record that
cannot be disregarded.” Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755, 757 (Tex.
2007).
         A trial court must grant a no-evidence motion for summary judgment unless the nonmovant
produces more than a scintilla of probative evidence to raise a genuine issue of material fact. TEX . R.
CIV . P. 166a(i); Wal-Mart Stores, Inc. v. Rodriguez, 92 S.W.3d 502, 506 (Tex. 2002). We review
a no-evidence summary judgment for evidence that would enable reasonable and fair-minded jurors
to differ in their conclusions. Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008) (citing City of
Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005)).
                                               Analysis
         The deed restriction at issue provides as follows:
                  2. No residence shall be erected upon the property, which does not contain
         1200 square feet on waterfront lots and 900 square feet on off water lots. All homes
         must be site built with new material. Elevation of foundation shall not exceed 24
         inches above highest ground elevation under foundation, unless approved by the
         Architectural Control Committee. All homes in Block eight (8) will be single story
         only. Residence must be built behind set back lines (front being 30 feet, side being
         5 feet, and back being 20 feet) (emphasis added).

The critical inquiry in this appeal focuses on whether the three houses challenged by appellant
violate the “single story only” deed restriction. These houses are referred to by the parties as the
Spickard Home, the Shotwell Home, and the Hanson Home.
         Prior to addressing the interpretation of the deed restriction, we note some important
distinctions made by the parties with respect to the Spickard Home. Appellees acknowledge that the
Spickard Home is a two-story home located in Block 8 of the subdivision. However, appellees



                                                   5
contend that the summary judgment evidence conclusively establishes the affirmative defense of
limitations regarding the Spickard Home. We agree.
        Actions to enforce restrictive covenants are controlled by a four-year statute of limitations.
Air Park-Dallas Zoning Comm. v. Crow-Billingsley Airpark, Ltd., 109 S.W.3d 900, 911 (Tex.
App.—Dallas 2003, no pet.).        Appellees have the burden of conclusively establishing the
applicability of the statute of limitations, including the date on which the limitations commenced.
See Knott, 128 S.W.3d at 220. An enforcement action concerning deed restrictions accrues upon
breach of the restrictive covenant. See Colton v. Silsbee State Bank, 952 S.W.2d 625, 630 (Tex.
App.—Beaumont 1997, no writ); Park v. Baxter, 572 S.W.2d 794, 795 (Tex. Civ. App.—Tyler
1978, writ ref’d n.r.e.).
        Bruce Spickard testified in an affidavit that he purchased his lot in Block 8 on March 24,
1999, and that the two-story residence located on the lot was in existence both at the time he
purchased it and at the time that appellant purchased her lot in 1999. Accordingly, an enforcement
action for violating the applicable deed restriction would have accrued prior to 1999. Appellant did
not file suit until 2005. She acknowledges in her brief that she knew the Spickard Home was a two-
story home prior to filing the underlying action. In this regard, appellant does not seek to avoid the
application of the four-year limitations period by invoking the discovery rule with respect to the
Spickard Home. We conclude that the trial court did not err in determining that appellant did not
file suit with respect to the Spickard Home within the applicable limitations period.
        The crux of the dispute in this case focuses on the characterization of the Shotwell and
Hanson Homes as either one-story or two-story homes under the applicable deed restriction. These
homes are similar in construction in that a portion of the attic space in each home has been converted
into some form of useable space. According to property tax records, the Shotwell Home contains
a “second floor living area” consisting of 144 square feet located above the 1,280 square feet main
living area. Sherlyn Shotwell described the second floor living area as a ten feet by fourteen feet
“loft” above her garage. Photographs taken of the inside of the Hanson Home depict two loft areas
of approximately 250 square feet located above the 1,248 square feet main living area.
        Viewed from the exterior, the Shotwell and Hanson Homes resemble the other homes located
in Block 8 of the subdivision, with the exception of the Spickard Home. We have attached a


                                                  6
summary judgment exhibit that depicts photographs of the eight homes located in Block 8. The
Shotwell Home is depicted in the column on the right (second row from the top) and the Hanson
Home is depicted in the column on the left (bottom row).5 This exhibit shows that the distance
between the ground and the eaves of all of the homes in Block 8 (with the exception of the Spickard
Home) are roughly the same. Additionally, the height of the Shotwell and Hanson Homes is also
comparable to the height of the five homes in Block 8 that appellant has not alleged to be greater
than one story. Accordingly, the Shotwell and Hanson Homes appear to be one-story homes when
viewed from the exterior.
          Appellant contends that a fact issue exists regarding the characterization of the Shotwell and
Hanson Homes as either one-story or two-story based upon the taxing entities’ description of the
properties. While these descriptions differ from the trial court’s findings, we disagree that this
difference in characterization raises a genuine issue of material fact. There are no disputed fact
issues pertaining to the appearance of the Shotwell and Hanson Homes. The controversy in this
appeal centers on the characterization of these homes under the deed restriction. In this regard, there
is no showing that the standards used by the taxing entities for characterizing entities as one-story
or two-story are the same as the standard set out in the deed restriction.
          It is the duty of this court, as it was the duty of the trial court, to review the wording of the
restrictive language and determine the intent of the drafter. See Wilmoth v. Wilcox, 734 S.W.2d 656,
658 (Tex. 1987). We review a trial court’s interpretation of a restrictive covenant de novo.
Buckner v. Lakes of Somerset Homeowners Assoc., Inc., 133 S.W.3d 294, 297 (Tex.
App.—Fort Worth 2004, pet. denied). TEX . PROP . CODE ANN . § 202.003(a) (Vernon 2007) provides
that “[a] restrictive covenant shall be liberally construed to give effect to its purposes and intent.”
See Benard v. Humble, 990 S.W.2d 929, 930 (Tex. App.—Beaumont 1999, pet. denied).6



          5
              The Spickard Home is depicted in the left column, top row.
          6
           As reflected by the court’s opinion in Benard, there is a question regarding the effect of the statutory rule of construction
on the previously announced common-law rule of construction. See David A. Johnson, One Step Foward, Two Steps Back:
Construction of Restrictive Covenants After the Implementation of Section 202.003 of the Texas Property Code, 32 TEX. TECH L.
REV. 355 (2001). Under the common law, “[r]estrictive clauses in instruments concerning real estate must be construed strictly,
favoring the grantee and against the grantor, and all doubt should be resolved in favor of the free and unrestrictive use of the
premises.” Davis v. Huey, 620 S.W.2d 561, 565 (Tex. 1981). We do not need to resolve this question because our interpretation of
the deed restriction is the same under either standard.

                                                                   7
       The deed restriction at issue simply reads “[a]ll homes in Block eight (8) will be single story
only.” The one-story limitation is contained within a paragraph that regulates the size and location
of all homes in the subdivision. The one-story restriction only applies to homes located in Block 8.
It is significant to note that the homes in Block 8 are those located along the waterfront of the
subdivision. Accordingly, the obvious purpose of the one-story limitation for homes located along
the waterfront is to protect the view of the other property owners in the subdivision. We conclude
that the Shotwell and Hanson Homes comply with the one-story restriction because these homes
appear to be one-story homes when viewed from the exterior. The fact that the owners of these
homes chose to utilize a small portion of the attic space in the homes for use has no effect on the
other property owner’s view of the waterfront. Moreover, the remaining deed restrictions do not
regulate the use of the interior of the homes in the subdivision with the exception that the homes be
connected to an approved septic system. Accordingly, we conclude that the trial court did not err
in determining that the Shotwell and Hanson Homes are one-story homes under the deed restrictions.
Appellant’s first issue is overruled.
                                        This Court’s Ruling
       The judgment of the trial court is affirmed.




                                                              TERRY McCALL
                                                              JUSTICE


September 3, 2009
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.




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