      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-03-00310-CV



                                   Gregory Daniels, Appellant

                                                  v.

                              Balcones Woods Club, Inc., Appellee




     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 201ST JUDICIAL DISTRICT
       NO. GN200811, HONORABLE MARGARET A. COOPER, JUDGE PRESIDING



                             MEMORANDUM OPINION


               In this case, the district court granted a permanent injunction in favor of neighborhood

association Balcones Woods Club, Inc., requiring appellant Gregory Daniels to remove a car parked

on his front lawn in violation of neighborhood association restrictive covenants. Daniels argues that

the district court was not fair and impartial, and challenges, among other things, findings of fact and

conclusions of law supporting the issuance of the injunction. We will affirm.


                                         BACKGROUND

               Balcones Woods Club, Inc. is a neighborhood association in northwest Austin. It is

governed by a board of directors who set neighborhood policy, ensure that the budget is spent

properly, and enforce covenants, deed restrictions, and dues collections. Property in the Balcones
Woods neighborhood is subject to certain covenants, conditions, and restrictions that were filed and

recorded with the Travis County clerk in January 1974.

                 Two restrictions are at issue in this case. Section eleven of article five, entitled

“Nuisances,” states that “No noxious or offensive activity shall be carried on upon any Lot, nor shall

anything be done thereon which may be or become an annoyance or nuisance to the neighborhood.

No vehicle or motor repair work other than minor emergency repair shall be conducted on any lot

or in the street or streets adjoining any lot. . . . [N]o disabled vehicle shall be stored or parked in the

open on any lot or on any street adjoining any lot.” Section twelve, entitled “Unsightly Objects,”

provides, in part, that “No boat, motor boat, camper, truck, trailer, motor home, recreational vehicle,

travel trailer or unsightly vehicles or objects shall be parked or stored between the curb and building

line of any lot or on any street adjoining any lot.”1

                 Daniels is the owner of a home on Flagstaff Street in the Balcones Woods

neighborhood.2 In the summer of 2001, Daniels began parking a late model Mazda 626 on his front

lawn, next to the driveway and under an oak tree.3 In the late summer of 2001, Brooks Colson, the

chairperson of the covenants enforcement committee, informed the Board that the car was parked




        1
          As the district court explained, “there is no curb at the driveway. That is a flat piece of
concrete . . . the curb abuts either side of the driveway. So if [the vehicle is] between the curb and
the building line—i.e., on the lawn adjacent to the driveway—that would be a violation. In the
driveway is not between the curb and the building line, as I interpret the plain language of this
section.”
        2
            It is undisputed that the restrictions apply to Daniels’s property.
        3
            Daniels testified that he has been parking different vehicles in the same area since 1991.

                                                    2
on Daniels’s front lawn. In a letter dated October 5, the Balcones Woods Operating Committee

notified Daniels that it believed that parking a vehicle in his yard was a violation of the

neighborhood covenants, conditions and restrictions.4 The letter also stated that if Daniels disagreed

with the allegation, he could contact the committee and explain his position. The committee

requested compliance within ten days, but gave Daniels the option of requesting an extension. It

notified him that if the violation was not corrected, the matter would be turned over to legal counsel

for action.

                  On January 31, 2002, the Board sent Daniels another letter notifying him that it was

prepared to file suit for the “ongoing violation of Article V, Sections 11 and 12 of the restrictive

covenants governing [Daniels’s] property” regarding a vehicle parked in the front yard, and that he

may be required to pay attorney’s fees and costs if he did not comply with the covenants. The letter

also stated that Daniels could request a hearing before the Board within thirty days in an effort to

resolve the matter. Daniels never responded to the Board’s letters, sought a hearing, or otherwise

attempted to resolve the dispute.

                  On March 8, 2002, Balcones Woods filed suit, alleging that Daniels was in violation

of sections eleven and twelve of the restrictive covenants and seeking a temporary and permanent

injunction in addition to attorney’s fees and costs. After a bench trial, the district court granted a

permanent injunction and assessed attorney’s fees and costs against Daniels. Daniels requested

findings of fact and conclusions of law, which were timely filed. This appeal followed.




        4
            Daniels signed a return receipt, acknowledging delivery of the letter, on November 6, 2001.

                                                    3
                                          DISCUSSION

               Daniels complains that the district court was not fair and impartial, as allegedly

evidenced by the manner in which it ruled, interjected objections, and prevented cross-examination

of witnesses. He also challenges several findings of fact and conclusions of law and attacks the

issuance of the injunction.


Standard of review

               Generally, the necessary elements of an injunction are: (1) a wrongful act, (2) the

existence of imminent harm, (3) the existence of irreparable injury, and (4) the absence of an

adequate remedy at law. Democracy Coalition v. City of Austin, 141 S.W.3d 282, 295-96 (Tex.

App.—Austin 2004, no pet.); see Texas Health Care Info. Council v. Seton Health Plan, Inc., 94

S.W.3d 841, 853 (Tex. App.—Austin 2002, no pet.). However, when an injunction is sought to

enforce a restrictive covenant, the movant is not required to show proof of irreparable injury.

Marcus v. Whispering Springs Homeowners Ass’n, 153 S.W.3d 702, 707 (Tex. App.—Dallas 2005,

no pet.); see Bankler v. Vale, 75 S.W.3d 29, 39 (Tex. App.—San Antonio 2001, no pet.); Jim

Rutherford Invs., Inc. v. Terramar Beach Cmty. Ass’n, 25 S.W.3d 845, 849 (Tex. App.—Houston

[14th Dist.] 2000, pet. denied). Instead, the movant need show only that the defendant intends to do

an act that would breach the covenant. Marcus, 153 S.W.3d at 707; Vale, 75 S.W.3d at 39;

Terramar Beach Cmty. Ass’n, 25 S.W.3d at 849.

               We review a district court’s issuance of injunctive relief for an abuse of discretion.

Operation Rescue-Nat’l v. Planned Parenthood of Houston & S.E. Tex., Inc., 975 S.W.2d 546, 560




                                                 4
(Tex. 1998). The test for an abuse of discretion is not whether, in the opinion of the reviewing court,

the facts present an appropriate case for the district court’s action but “whether the court acted

without reference to any guiding rules and principles.” Cire v. Cummings, 134 S.W.3d 835, 839

(Tex. 2004) (quoting Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241 (Tex. 1985)).


Whether the district court was fair and impartial

                Daniels cites several examples of what he contends is evidence that the district court

was not fair and impartial because the court “made it obvious” that it favored Balcones Woods and

“effectively eliminated any possibility of discovering the complete truth behind this matter.”5

                Judicial rulings alone almost never constitute a valid basis for a bias or partiality

motion, and judicial remarks during the course of a trial that are critical or disapproving of, or even

hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge.

Dow Chem. Co. v. Francis, 46 S.W.3d 237, 240 (Tex. 2001) (citing Liteky v. United States, 510 U.S.

540, 555 (1994)). Furthermore, “‘not establishing bias or partiality . . . are expressions of

impatience, dissatisfaction, annoyance, and even anger. . . . A judge’s ordinary efforts at courtroom

administration—even a stern and short-tempered judge’s ordinary efforts at courtroom

administration—remain immune.’” Id. (quoting Liteky, 510 U.S. at 555-56). In short, a district

court has the inherent power to control the disposition of cases “with economy of time and effort for




        5
         Although Daniels represented himself at trial, pro se litigants are generally held to the same
standards applied to licensed attorneys. Wheeler v. Green, 157 S.W.3d 439, 444 (Tex. 2005).

                                                    5
itself, for counsel, and for litigants.” Id. (quoting Landis v. North Am. Co., 299 U.S. 248, 254

(1936)). Moreover, the district court has great discretion over the conduct of a trial. Id. (citing

Schroeder v. Brandon, 172 S.W.2d 488, 491 (Tex. 1943); see Metzger v. Sebek, 892 S.W.2d 20, 38

(Tex. App.—Houston [1st Dist.] 1994, writ denied). It may properly intervene to maintain control

in the courtroom, to expedite the trial, and to prevent what it considers to be a waste of time.

Francis, 46 S.W.3d 237, 241; see Tex. R. Evid. 611(a) (court shall exercise reasonable control over

mode and order of interrogating witnesses and presenting evidence so as to (1) make interrogation

and presentation effective for ascertainment of truth, (2) avoid needless consumption of time, and

(3) protect witnesses from harassment or undue embarrassment).

               We have reviewed the transcript of the circumstances surrounding Daniels’s

complaints. First, he complains that the court would not allow him to question a witness regarding

what the witness believed was “unsightly”—using Daniels’s necktie as an example—in an apparent

attempt to prove that the meaning of the term is subjective. However, the court accurately informed

Daniels that the interpretation of a term in the restrictive covenant is a question of law which is not

an appropriate subject for a fact witness. See Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778,

783 (Tex. 2001) (determining what contract says is generally question of law for court); see also

Pilarcik v. Emmons, 966 S.W.2d 474, 478 (Tex. 1998) (restrictive covenants are subject to general

rules of contract construction).

               Next, Daniels argues that the “same problem occurred” when he “tried to focus on

the issue of waiver or speculative real estate values or to simply test an expert witness’s knowledge

of critical provisions.” In these examples, the district court was avoiding needless consumption of



                                                  6
time, see Tex. R. Evid. 611(a), because Daniels was asking questions about what the witness did not

consider to be a violation of the covenants, whether the witness had protested the value assigned to

his own property for property tax purposes, and whether individuals may enforce deed restrictions.

These lines of questioning were either irrelevant to the legal question of whether Daniels had

violated the applicable deed restrictions or improperly called for a legal conclusion.6 See Tex. R.

Evid. 402, 701. It is true that the district court played a somewhat active role in the questioning of

witnesses. However, this was a bench trial where the court was acting in its dual capacity as both

finder of fact and magistrate. See Qantel Bus. Sys., Inc. v. Custom Controls Co., 761 S.W.2d 302,

306 (Tex. 1988). We hold that the district court properly acted within its discretion to maintain

control in the courtroom, to expedite the trial, and to prevent what it considered to be a waste of

time. See Francis, 46 S.W.3d 237, 241; see also Tex. R. Evid. 611(a). We overrule Daniels’s first

issue.


Findings of fact

               Next, Daniels challenges three findings of fact, asserting that they are erroneous and

not supported by evidence.

               A district court’s findings of fact are reviewed for factual sufficiency of the evidence

under the same legal standards as jury verdicts. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996)




         6
          Daniels also contends that the district court prevented cross-examination by “running
interference.” Specifically, he complains that the court responded to a question asked by the witness.
However, the transcript reveals that Daniels asked the witness if Daniels had already asked questions
regarding a specific area, and the court responded, reminding Daniels of the witness’s testimony.

                                                  7
(citing Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991)). In reviewing a factual

sufficiency point, we weigh all of the evidence in the record. See Southwestern Bell Tel. Co. v.

Garza, 164 S.W.3d 607, 631 (Tex. 2004); Jones, 917 S.W.2d at 772. Findings may be overturned

only if they are so against the great weight and preponderance of the evidence as to be clearly wrong

and unjust. Jones, 917 S.W.2d at 772 (citing Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986)).

                Finding of fact number nine states that “Daniels allowed grass to grow up around and

under the Mazda 626.” Douglas Huyck, Daniels’s next-door neighbor of twelve years, testified at

the permanent injunction hearing that the car was parked on Daniels’s front lawn from mid-

September 2001 until the end of May 2002.7 During that time, he never saw any indication that the

car had ever been moved. Huyck stated that a picture of the car, introduced into evidence, accurately

depicted the fact that grass was “almost touching the undercarriage of the car” and that the rest of

the lawn did not appear to be mowed. However, he noted that he had seen Daniels mowing the lawn

and observed him mowing around the car. Daniels testified that he moved the car at different times

and argues that there is no evidence “suggesting any extensive amount of grass was allowed to grow

around the vehicle.” He also urges that other testimony indicated the grass was actually mowed and

that it is not necessary to mow under the car each time the grass is mowed. However, he does not

challenge the eighth finding of fact, that he parked the Mazda 626 on his lawn for months without

moving it. There was sufficient evidence that Daniels allowed grass to grow up around and under




       7
           Daniels apparently removed the car in compliance with the temporary injunction.

                                                 8
the Mazda 626. The ninth finding of fact was not so against the great weight and preponderance of

the evidence as to be clearly wrong and unjust. Jones, 917 S.W.2d at 772.

                Daniels also challenges findings of fact twelve and thirteen. Finding twelve states

that “[t]he parking of the car on the front lawn was considered to be unsightly by some of the

Balcones Woods residents,” and thirteen states that “[t]he Board is of the opinion that the parking

of a car on the lawn is a violation of the restrictive covenants, specifically Article V, Sections 11 and

12.”

                Huyck testified that he was “distressed, anxious, [and] annoyed about [the car] being

there.” Furthermore, John Schexnayder, Balcones Woods treasurer and member of the Board,

testified at the permanent injunction hearing. In response to a question about why the Board is

concerned about cars parked on lawns, Schexnayder explained that “the Board strongly feels that it’s

unsightly, that it is a nuisance, that it is detrimental to the appearance of the neighborhood, to

property values in the neighborhood. And the Board has been told by residents in the area that it is

offensive and unsightly to them as well.” He also testified that the Board’s “complaint was that Mr.

Daniels was parking an automobile in the front yard of his residence on the grass, in violation of the

covenants,” and that “the Board unanimously felt . . . that he violated both Section 11 and Section

12 of Article 5, that it was both a nuisance and it was an unsightly vehicle.” The testimony of Huyck

and Schexnayder provided sufficient evidence to support findings of fact twelve and thirteen. We

hold that the three challenged findings of fact are not so against the great weight and preponderance

of the evidence as to be clearly wrong and unjust. Jones, 917 S.W.2d at 772 (citing Cain v. Bain,

709 S.W.2d 175, 176 (Tex. 1986)). We overrule Daniels’s second issue.



                                                   9
Conclusions of law

                 Daniels also challenges four conclusions of law. We review a district court’s

conclusions of law as a legal question. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 794

(Tex. 2002). An appellant may not challenge a district court’s conclusions of law for factual

insufficiency; however, we may review the district court’s legal conclusions drawn from the facts

to determine their correctness. Id.


     Statute of limitations

                 Conclusion of law number four states that “The Association Board filed this lawsuit

within the limitations period.” Daniels pleaded the affirmative defense of statute of limitations, and

carries the burden of conclusively establishing the applicability of the statute of limitations, including

the date on which the limitations commenced. See Provident Life & Accident Ins. Co. v. Knott, 128

S.W.3d 211, 220 (Tex. 2003). 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.). When a restrictive covenant is initially violated, but

that violation ceases, limitations does not bar future enforcement of the covenant. See Schoenhals

v. Close, 451 S.W.2d 597, 599-600 (Tex. Civ. App.—Amarillo 1970, no writ).

                 Daniels argues that limitations commenced in 1991 when he began parking a vehicle

on his front lawn. Huyck agreed that Daniels had been parking cars in that location since 1991 or

1992.8 Although Huyck recalled that certain specific vehicles were parked on Daniels’s front lawn,




        8
            Huyck did not file a complaint with the neighborhood association until September 2000.

                                                   10
he could not recall when or how long they were parked on Daniels’s front lawn. Daniels admits that

he did not begin parking the car at issue, a Mazda 626, on his front lawn until 2001. Balcones

Woods filed suit on March 8, 2002, less than a year after Daniels began parking the Mazda 626 on

his front lawn. Based on the evidence introduced at trial, Daniels failed to meet his burden of proof

to show that limitations commenced more than four years prior to the time the Board filed this

lawsuit.9


    Whether the Board properly exercised its authority

                Daniels challenges three conclusions of law regarding the Board’s exercise of

authority and the accuracy of its conclusion that Daniels was in violation of the restrictive covenants.

                Restrictive covenants are subject to the general rules of contract construction.

Emmons, 966 S.W.2d at 478. We liberally construe them in order to give effect to their purpose and

intent. Tex. Prop. Code Ann. § 202.003 (West 1995). An exercise of discretionary authority by a

property owners’ association or other representative designated by an owner of real property

concerning a restrictive covenant is presumed reasonable unless the court determines by a

preponderance of the evidence that the exercise of discretionary authority was arbitrary, capricious,

or discriminatory. Id. § 202.004 (West 1995).




        9
          Daniels also argues that the Board had notice that cars were parked in the same location
since 1991 because Huyck or Schexnayder were agents of the Board for that purpose. However,
even if notice to Huyck or Schexnayder constituted notice to the Board, the record does not contain
sufficient evidence of a continuous violation which may have implicated the statute of limitations.

                                                  11
               Conclusion of law number seven states that “The Board, in determining that Daniel’s

[sic] parking a car on the lawn constituted a violation of Article V, Sections 11 and 12 of the

restrictive covenants, exercised its discretionary authority in a reasonable manner.” The eighth

conclusion of law states that “The Board’s exercise of its discretionary authority was not arbitrary,

capricious or discriminatory.”

               Huyck testified that the fact that Daniels parked a car on Daniels’s lawn annoyed

Huyck and was a nuisance. Schexnayder testified that the Board “strongly feels that it’s unsightly,

that it is a nuisance, that it is detrimental to the appearance of the neighborhood, to property values

in the neighborhood,” and that neighborhood residents had complained to the Board. Approximately

one month after Huyck complained about the location of the car to the Board, the Balcones Woods

Operating Committee notified Daniels that it believed that parking a vehicle in his yard was a

violation of the neighborhood covenants, conditions and restrictions. On January 31, 2002, the

Board of Directors sent Daniels another letter notifying him that it was prepared to file suit for the

“ongoing violation of Article V, Sections 11 and 12 of the restrictive covenants governing

[Daniels’s] property” regarding a vehicle parked in the front yard, and that he may be subject to

paying reasonable attorney’s fees and costs if he did not comply with the covenants. Daniels never

responded to the notices, and approximately one month later, on March 8, Balcones Woods filed suit.

There is no evidence that Balcones Woods was notified of the violations yet delayed action. We

hold that the exercise of Balcones Woods’s discretionary authority was reasonable and was not

arbitrary, capricious, or discriminatory. See id.




                                                    12
                Next, we review de novo the district court’s finding that Daniels violated the deed

restrictions, supported by conclusion of law number twelve. Buckner v. Lakes of Somerset

Homeowners Ass’n, Inc., 133 S.W.3d 294, 297 (Tex. App.—Fort Worth 2004, pet. denied);

Crow-Billingsley Airpark, Ltd., 109 S.W.3d at 909. Section twelve of the restrictive covenant

provides, in part, that “No boat, motor boat, camper, truck, trailer, motor home, recreational vehicle,

travel trailer or unsightly vehicles or objects shall be parked or stored between the curb and building

line of any lot or on any street adjoining any lot.” Daniels admits to parking his car on the front

lawn, which is between the curb and the building line of his lot. Furthermore, there is a photograph

in evidence which depicts the Mazda parked on his front lawn. We overrule Daniels’s third issue.


Waiver

                Next, Daniels contends that Balcones Woods’s tolerance of similar violations

constituted waiver as a matter of law.

                In order to carry the burden of demonstrating a waiver of restrictive covenants, a party

must prove that “the violations then existing were so extensive and material as to reasonably lead

to the conclusion that the restrictions had been abandoned.” Anderson Mill Mun. Util. Dist. v.

Robbins, No. 03-04-00369-CV, 2005 Tex. App. LEXIS 7482, at *29-30 (Tex. App.—Austin 2005,

pet. abated) (quoting Cox v. Melson-Fulsom, 956 S.W.2d 791, 794 (Tex. App.—Austin 1997, no

pet.)). The number, nature and severity of the existing violations, any prior acts of enforcement, and

whether it is still possible to realize to a substantial degree the benefits sought to be obtained through

the covenants are factors to be considered in determining waiver. Melson-Fulsom, 956 S.W.2d at

794.

                                                   13
               Huyck testified that he was aware of other violations in the neighborhood, but

explained that he did not “feel that there were any other violations that [he was] aware of as a

homeowner on Flagstaff Drive in relation to the sections in question.” Schexnayder testified that

in the five years preceding the lawsuit, he had not seen other vehicles parked on other individuals’

front lawns in the neighborhood. Although Daniels testified that other people park cars on their front

lawns, Daniels did not produce any evidence to support his allegation, including any evidence

regarding the number, nature and severity of the existing violations, any prior acts of enforcement,

or specific other violations that were so extensive and material as to reasonably lead to the

conclusion that the restrictions had been abandoned. See id. We overrule Daniels’s fourth issue.


Notice of violation

               Daniels asserts that he did not receive proper notice of a violation because he claims

that the car parked on his lawn was not “unsightly”; thus, section twelve does not prohibit parking

his car on the lawn. He argues that the car runs, the bumper is smooth and uniform in color, and

there are no significant defects on the vehicle. Furthermore, he asserts, “to imply that [he] had a duty

to perceive annoyance without explicit communication to that effect is preposterous.”10

               Daniels was explicitly notified twice of the Board’s interpretation of the restrictive

covenants. The first letter, dated October 5, was addressed to “Mr. Daniels at 4401 Flagstaff Dr.”

and explained the complaint as “specifically—vehicle parked in yard.” It notified him that he could




        10
           Daniels adds that the “impersonal tone and threatening nature of the notices with
envelopes addressed to ‘Daniels or Occupant’ certainly did nothing to alleviate . . . implications [that
Daniels’s] vehicle was ‘unsightly.’”

                                                  14
contest the violation, which he apparently chose not to do. The second letter, dated January 31,

2002, stated that the Board was preparing to file suit for “the following ongoing violations of Article

V, Sections 11 and 12 of the restrictive covenants governing your property at 4401 Flagstaff Drive:

Vehicle parked in front yard.” It gave Daniels another chance to contest the Board’s determination

by requesting a hearing, which Daniels also apparently chose not to pursue. We determine that

Daniels had notice that the Board considered his vehicle “unsightly” and that it believed that parking

the vehicle on the front lawn violated the applicable restrictive covenants. We hold that Daniels had

proper notice of the Board’s claims. We overrule Daniels’s fifth issue.


Adequate remedy at law

               Daniels argues that an injunction should not have been issued because Balcones

Woods had an adequate remedy at law by pursuing enforcement of Austin city ordinance number

020829-58 which, he argues, also prohibits parking vehicles on front lawns. The district court took

judicial notice of the ordinance. Assuming that Balcones Woods was required to prove the lack of

an adequate remedy, its burden was met in this case. Balcones Woods would have to rely on the City

of Austin to enforce the ordinance, and there is no evidence that the fine contemplated by the

ordinance would be an effective remedy, as Balcones Woods notes by Daniels’s willingness to spend

“much more than $40 to defend his right to park on his grass.” Furthermore, Daniels did not provide

evidence that his property is subject to the city ordinance, or explain how enforcement of the

ordinance would provide an adequate remedy to Balcones Woods. We overrule Daniels’s sixth

issue.




                                                  15
                                        CONCLUSION

               Based on the record before us, we find that the district court properly issued the

permanent injunction. We affirm the order of the district court.




                                             __________________________________________

                                             W. Kenneth Law, Justice

Before Chief Justice Law, Justices B. A. Smith and Puryear

Affirmed

Filed: February 2, 2006




                                               16
