Opinion issued August 13, 2015




                                     In The

                              Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                              NO. 01-14-00717-CV
                           ———————————
        JAIMIE MARTINEZ AND JENNIE MARTINEZ, Appellants
                                       V.
 JBIC, INC. DOING BUSINESS AS JAMAICA BEACH IMPROVEMENT
                     COMMITTEE, Appellee


                   On Appeal from the 212th District Court
                          Galveston County, Texas
                      Trial Court Case No. 14-CV-0201


                         MEMORANDUM OPINION

      JBIC, Inc., which does business as the Jamaica Beach Improvement

Committee and enforces the Jamaica Beach subdivision’s restrictive covenants,

sued Jaimie and Jennie Martinez, who own property in the subdivision, for

violations of restrictive covenants. JBIC obtained an order permitting substituted
service of the citation and petition. When the Martinezes did not answer the suit,

the trial court entered a default judgment against them. The judgment contains

various injunctions regarding the Martinezes’ use and upkeep of their property.

      In this restricted appeal, the Martinezes contend that (1) the trial court did

not have jurisdiction to enter judgment against them because the affidavit

submitted in support of JBIC’s motion for substituted service failed to comply with

Texas Rule of Civil Procedure 106(b) in that it did not contain a specific averment

that the address listed in the affidavit was the Martinezes’ usual place of abode or

where they probably could be found and (2) the injunction failed to adequately

inform them of the acts that it prohibits and, thus, is impermissibly vague in

violation of Civil Procedure Rule 683.

      We reverse.

                                    Background

      Jaimie and Jennie Martinez own property in the Jamaica Beach subdivision

in Galveston. Their property is subject to various restrictive covenants. Many of

the properties in the subdivision—including the Martinezes’—were damaged by

Hurricane Ike in 2008. JBIC, which enforced the subdivision’s restrictive

covenants, notified the Martinezes in 2012 that they needed to address various

deficiencies on their property to bring it into compliance with the restrictive

covenants. Specifically, they needed to (1) repair or replace the pilings; (2) add all


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necessary handrails to the outside stairs on the residential house; (3) add all

necessary railings to the entire upstairs deck; (4) repair or replace the siding on the

house; (5) repair or replace the roof; (6) “paint the entire residential house on the

Lot to preserve the attractiveness thereof”; (7) resolve the temporary connection of

electricity to the home; (8) “remove all of the materials and equipment which are

stored on the Lot in a manner that is not for normal residential requirements”; and

(9) “abate all of the characteristics of the residential house on the Lot that cause it

to be an annoyance or a nuisance to the neighborhood.” When the property was not

brought into compliance, JBIC filed suit against the Martinezes.

      JBIC was unable to obtain service on the Martinezes and moved for

substituted service. In support of its motion, it attached affidavits from a process

server detailing his past attempts to effect service at 5423 Timbers Trail Drive,

Humble, TX 77346 and listing the license plate numbers for each vehicle observed

at the residence on each attempted service. JBIC also attached various documents

to the affidavits and motion indicating that the Martinezes reside at that address

and that the license plate numbers observed there are assigned to vehicles

registered to the Martinezes. The trial court granted the motion, and JBIC served

the Martinezes by substituted service at the Humble address by leaving a copy of

the citation and petition with a person over the age of 16.




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      When the Martinezes failed to answer suit, a default judgment was entered

against them. The order permanently enjoins the Martinezes as follows:

      IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that
      . . . Defendants, JAIME MARTINEZ and JENNIE MARTINEZ . . .
      be, and hereby are, commanded to desist and refrain from, directly or
      indirectly, (a) failing to keep in good repair, and failing to keep
      painted when necessary to preserve the attractiveness of, the
      residential house located on said Lot, (b) storing material and
      equipment on said Lot except for normal residential requirements, and
      (c) carrying on a noxious or offensive activity upon said Lot; and that
      Defendant, JAIME MARTINEZ and JENNIE MARTINEZ . . . be,
      and hereby are, mandated to (1) promptly and properly repair, keep in
      good repair, paint to preserve the attractiveness of, and keep painted
      when necessary to preserve the attractiveness of, the residential house
      located on said Lot, (2) promptly cease to use said Lot for storage of
      material and equipment except for normal residential requirements,
      and (3) promptly abate the noxious or offensive activity carried on
      upon said Lot.

Through a restricted appeal, the Martinezes challenge both the substituted service

and the specificity of the injunction.

                              Specificity of Injunction

      In their second issue, the Martinezes argue that the trial court erred by

issuing an injunction against them that lacks the necessary specificity and precision

to be enforced by contempt.

A.    Standard of review

      The standard of review when a trial court grants a permanent injunction is

whether the trial court abused its discretion. Glattly v. Air Starter Components,

Inc., 332 S.W.3d 620, 642 (Tex. App.—Houston [1st Dist.] 2010, pet. denied);

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Morris v. Collins, 881 S.W.2d 138, 139 (Tex. App.—Houston [1st Dist.] 1994,

writ denied). A trial court abuses its discretion if it (1) acts arbitrarily and

unreasonably without reference to guiding rules or principles or (2) misapplies the

law to the established facts of the case. Indian Beach Prop. Owners’ Ass’n v.

Linden, 222 S.W.3d 682, 691 (Tex. App.—Houston [1st Dist.] 2007, no pet.);

Butler v. Arrow Mirror & Glass, Inc., 51 S.W.3d 787, 791 (Tex. App.—Houston

[1st Dist.] 2001, no pet.).

B.    Specificity requirement for permanent injunction

      A person who violates a trial court’s injunction may be held in contempt;

therefore, the language enjoining the party should be clear so that the party

subjected to the prohibitions is not misled. See TEX. R. CIV. P. 692 (permitting trial

court to have violator arrested and committed to jail without bail); Ex parte

Padron, 565 S.W.2d 921, 924 (Tex. 1978) (“Civil contempt in Texas is the process

by which a court exerts its judicial authority to compel obedience to some order of

the court.”); In re Coppock, 277 S.W.3d 417, 419 (Tex. 2009).

      Civil Procedure Rule 683 contains the specificity requirement: “Every order

granting an injunction . . . shall be specific in terms [and] shall describe in

reasonable detail and not by reference to the complaint or other document, the act

or acts sought to be restrained . . . .” TEX. R. CIV. P. 683. The rule’s purpose is to

ensure that enjoined parties are given adequate notice of the acts they are


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prohibited from doing. Rugen v. Interactive Bus. Sys., Inc., 864 S.W.2d 548, 552

(Tex. App.—Dallas 1993, no writ). As the Texas Supreme Court has explained:

      An injunction decree must be as definite, clear and precise as possible
      and when practicable it should inform the defendant of the acts he is
      restrained from doing, without calling on him for inferences or
      conclusions about which persons might well differ and without
      leaving anything for further hearing. But obviously the injunction
      must be in broad enough terms to prevent repetition of the evil sought
      to be stopped, whether the repetition be in form identical to that
      employed prior to the injunction or (what is far more likely) in
      somewhat different form calculated to circumvent the injunction as
      written.

San Antonio Bar Ass’n v. Guardian Abstract & Title Co., 291 S.W.2d 697, 702

(Tex. 1956).

      Thus, for example, an injunction prohibiting a homeowner from “playing

excessively loud music that can be heard outside of the dwelling located on the

Property” is not impermissibly vague because the common meaning of

“excessively loud”—which the appellate court stated meant “so loud it exceeds

what is usual, proper, necessary, or normal”—provides sufficient guidance

regarding which acts are prohibited. Webb v. Glenbrook Owners Ass’n, Inc., 298

S.W.3d 374, 388 (Tex. App.—Dallas 2009, no pet.). However, another provision

in that same injunction prohibiting the property owner from playing “obscene

music” was held to be impermissibly vague. See id. at 388–89. The court stated

that the term “obscene” is “highly subjective” and, as a result, held that the



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injunction “lacks sufficient specificity required for an enforceable order of the

court.” Id.

      Other examples of vague injunctions include prohibitions against contacting

clients or selling products to individuals without adequately identifying the clients

and individuals who may not be contacted. See Computek Computer & Office

Supplies, Inc. v. Walton, 156 S.W.3d 217, 222–23 (Tex. App.—Dallas 2005, no

pet.) (injunction failed to specify clients company could not contact); Heat Shrink

Innovations, LLC v. Med. Extrusion Technologies-Texas, Inc., No. 02-12-00512-

CV, 2014 WL 5307191 (Tex. App.—Fort Worth Oct. 16, 2014, pet. denied)

(injunction enjoined sales to “Farm” and “Calypso” without providing any further

clues to their identities). Additionally, an injunction that sought to enjoin activity

related to a roadway but failed to sufficiently describe the particular roadway at

issue was held unenforceable. See Wood v. Walker, 279 S.W.3d 705, 714 (Tex.

App.—Amarillo 2007, no pet.).

C.    JBIC’s injunction against the Martinezes

      The three Jamaica Beach restrictive covenants at issue provide as follows:

      7.      No noxious or offensive activity shall be carried on upon any lot
              nor shall anything be done thereon which may be or may become
              an annoyance or a nuisance to the neighborhood.
      . . . .

      11. The owners or occupants of all lots in this subdivision shall . . . in
          no event use any lot for storage of material and equipment except
          for normal residential requirements . . . .
                                           7
      . . . .

      15. All residences and other buildings must be kept in good repair,
          and must be painted when necessary to preserve the
          attractiveness thereof.

      JBIC informed the Martinezes, by letter, that to comply with the restrictive

covenants they needed to: (1) repair or replace the pilings; (2) add all necessary

handrails to the outside stairs on the residential house; (3) add all necessary railings

to the entire upstairs deck; (4) repair or replace the siding on the house; (5) repair

or replace the roof; (6) “paint the entire residential house on the Lot to preserve the

attractiveness thereof”; (7) resolve the temporary connection of electricity to the

home; (8) “remove all of the materials and equipment which are stored on the Lot

in a manner that is not for normal residential requirements”; and (9) “abate all of

the characteristics of the residential house on the Lot that cause it to be an

annoyance or a nuisance to the neighborhood.” These same deficiencies were

included in JBIC’s petition without additional detail.

      The permanent injunction issued by the court following default, requires the

Martinezes to abide by covenants 7, 11, and 15. These requirements are stated both

as prohibitions and mandates. First, the injunction prohibits the Martinezes from

      (a) failing to keep in good repair, and failing to keep painted when
      necessary to preserve the attractiveness of the residential house
      located on said Lot, (b) storing material and equipment on said Lot
      except for normal residential requirements, and (c) carrying on a
      noxious or offensive activity upon said Lot . . . .


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It then requires that they

      (1) promptly and properly repair, keep in good repair, paint to
      preserve the attractiveness of, and keep painted when necessary to
      preserve the attractiveness of, the residential house located on said
      Lot, (2) promptly cease to use said Lot for storage of material and
      equipment except for normal residential requirements, and
      (3) promptly abate the noxious or offensive activity carried on upon
      said Lot.

D.    The injunction is vague

      The Martinezes contend that the injunction is impermissibly vague because

it fails to adequately inform them of the acts for which they are subject to contempt

for violation. JBIC responds that the injunction is not vague because it tracks the

language of the subdivision’s restrictive covenants, to which the Martinezes

knowingly agreed to be bound. JBIC points out that the covenants have been in

effect since 1964, without amendment, and, thus, are “clear and unambiguous . . .

guidelines to property owners” in the Jamaica Beach subdivision.

      To the extent the covenants are not specific, JBIC asserts that the nine

deficiencies listed in its petition and above “describe[ ] specific acts by Defendants

that have resulted in violations of the deed restrictions” and, therefore, adequately

“define what actions are required to comply with the restrictions and have a

definite and certain legal meaning for the purpose of notice to Defendants.” We do

not agree for several reasons.




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      First, incorporation of the restrictive-covenant terms into the injunction does

not insulate the injunction from a vagueness challenge. See Johnson v. Linton, 491

S.W.2d 189, 196 (Tex. App.—Dallas 1973, no writ) (holding that phrases used in

injunction which were same phrases used in restrictive covenants—including that

structures “shall not exceed one and one-half story in height,” “all garages must be

not less than two car size,” and “conformity and harmony of external design with

existing structures in the subdivision” is required—were too vague and uncertain to

meet requirements of Rule 683).

      Second, the specificity required of the order cannot be met by reference to

another more detailed document. See TEX. R. CIV. P. 683 (requiring injunction

order to “describe in reasonable detail and not by reference to the complaint or

other document, the act or acts sought to be restrained . . . .” (emphasis added));

Computek, 156 S.W.3d at 222 (“[T]he injunction itself must provide the specific

information . . . without inferences or conclusion, or, in this case, implied

references to other records [the enjoined party] might have.”).

      And third, even if JBIC could refer back to these documents to find the

necessary specificity, the documents did not describe the materials or equipment

being stored on the Martinezes’ property that JBIC viewed as “not for normal

residential requirements.” Nor did they define the activities taking place on the

Martinezes’ property that JBIC considered “noxious or offensive.”


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       Because the order, itself, is required to specifically describe the acts sought

to be restrained, we consider each of the three provisions in the Martinezes’

permanent injunction to determine whether they meet the requirements of Rule

683.

       1.    Painting to preserve attractiveness

       The injunction incorporates the language of covenant number 15 to require

the Martinezes to keep their home in good repair and to “keep [it] painted when

necessary to preserve the attractiveness of the residential house.”

       An injunction “must spell out the details of compliance in clear, specific and

unambiguous terms so that such person will readily know exactly what duties or

obligations are imposed upon him.” Lasser v. Amistco Separation Prods., Inc., No.

01-13-00690-CV, 2014 WL 527539, at *4 (Tex. App.—Houston [1st Dist.] Feb. 6,

2014, no pet.) (mem. op.) (quoting Drew v. Unauthorized Practice of Law Comm.,

970 S.W.2d 152, 156 (Tex. App.—Austin 1998, pet. denied)); Hellenic Inv., Inc. v.

Kroger Co., 766 S.W.2d 861, 866 (Tex. App.—Houston [1st Dist.] 1989, no writ).

An injunction order “should not be framed so broadly as to prohibit the enjoyment

of lawful rights.” Hellenic Inv., Inc., 766 S.W.2d at 866.

       Under these guidelines, applying a subjective “attractiveness” standard to a

requirement that homeowners paint their home is impermissibly vague. See Webb,

298 S.W.3d at 388–89 (holding that prohibition against playing “obscene music” is


                                          11
impermissibly vague because obscenity is “highly subjective.”). This injunction

could subject the Martinezes to contempt based on a newly painted home under an

allegation that their color choice detracted from the subjective “attractiveness” of

the home.

      We conclude that this injunction is impermissibly vague.

      2.    Storing non-residential materials

      The next injunction incorporates language from covenant 11 and prohibits

the Martinezes from storing materials and equipment on their property except

“normal residential requirements.”

      We give restrictive covenants’ words and phrases their commonly accepted

meaning. Uptegraph v. Sandalwood Civic Club, 312 S.W.3d 918, 925 (Tex.

App.—Houston [1st Dist.] 2010, no pet.). “Residential” is defined as “of or

connected with residence” or “characterized by, or suitable for residences, or

homes.” WEBSTER’S NEW WORLD COLLEGE DICTIONARY 1236 (5th ed. 2014).

“Normal” means “conforming with or constituting an accepted standard, model, or

pattern . . . .” WEBSTER’S NEW WORLD COLLEGE DICTIONARY 998. Black’s Law

Dictionary states that “normal” “describes not just forces that are constantly and

habitually operating but also forces that operate periodically or with some degree

of frequency. In this sense, its common antonyms are unusual and extraordinary.”

BLACK’S LAW DICTIONARY 1160 (9th ed. 2004).


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      Nowhere in the order does the trial court provide the Martinezes with any

guidance regarding what they have stored that violates this provision. Again, JBIC

refers back to specific deficiencies listed in its petition but, as discussed earlier,

reference to another pleading does not supply the definiteness and specificity

required by Rule 683. See Computek, 156 S.W.3d at 222. Even if it did, the petition

does not list which items have been stored on the property that are not properly

considered “normal residential” materials, particularly in the context of an on-

going repair project.

      We conclude that this broadly worded injunction is impermissibly vague and

fails to inform the Martinezes of the acts it prohibits and for which they could be

subject to contempt.

      3.     Noxious or offensive activities

      The final injunction incorporates language from covenant 7 and prohibits the

Martinezes from “carrying on a noxious or offensive activity” on their property.

“Noxious” means “harmful to the health” and “injurious.” WEBSTER’S NEW

WORLD COLLEGE DICTIONARY 1002; BLACK’S LAW DICTIONARY 1170. “Injurious”

means “harmful; tending to injury.” BLACK’S LAW DICTIONARY 856. It also has

been defined as “offensive or abusive.” WEBSTER’S NEW WORLD COLLEGE

DICTIONARY 749. “Offensive” means “unpleasant or disagreeable to the sense;

obnoxious.” BLACK’S LAW DICTIONARY 1188. Another definition is “giving


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painful or unpleasant sensations.” MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY

861 (11th ed. 2003).

      Again, the order fails to provide the Martinezes with any guidance regarding

the acts that would violate this particular injunction. JBIC may not refer back to

another pleading to provide the specificity required under Rule 683. See Computek,

156 S.W.3d at 222. But even if it could, the petition does not detail which activities

have been considered noxious or offensive in the past to guide the Martinezes’

future conduct. We conclude that this injunction provision is impermissibly vague

and fails to inform the Martinezes of the acts it prohibits and for which they could

be subject to contempt.

      Having found that all three injunction provisions are impermissibly vague,

we sustain the Martinezes’ second issue. Because the judgment against them is

being reversed and the Martinezes have appeared, we do not address their first

issue. See McKanna v. Edgar, 388 S.W.2d 927, 930 (Tex. 1965); see also TEX. R.

CIV. P. 123.

                                    Conclusion

      We reverse the trial court’s injunction and remand the cause for further

proceedings consistent with this opinion.




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                                             Harvey Brown
                                             Justice

Panel consists of Justices Jennings, Bland, and Brown.




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