                                                                                             United States Court of Appeals
                                                                                                      Fifth Circuit
                                                                                                   F I L E D
                                                      In the                                     September 20, 2006
                           United States Court of Appeals                                      Charles R. Fulbruge III
                                          for the Fifth Circuit                                        Clerk
                                                _______________

                                                  m 05-20986
                                                Summary Calendar
                                                _______________



                              JOSEPH A. AUFMAN; JUDITH A. AUFMAN,

                                                                              Plaintiffs-
                                                                              Counter Defendants-
                                                                              Appellants,

                                                     VERSUS

                                          GOVERNMENT OF JAPAN,

                                                                              Defendant-
                                                                              Counter Claimant-
                                                                              Appellee.


                                        _________________________

                               Appeals from the United States District Court
                                    for the Southern District of Texas
                                            m 4:04-CV-3449
                                  ______________________________


Before SMITH, GARZA, and PRADO,                               Joseph and Judith Aufman appeal a sum-
  Circuit Judges.                                          mary judgment for defendant and counter
                                                           claimant the Government of Japan. The Auf-
JERRY E. SMITH, Circuit Judge:*                            mans filed this matter in state court seeking a
                                                           declaratory judgment that a deed restriction
   *
     Pursuant to 5TH CIR. R. 47.5, the court has deter-
mined that this opinion should not be published and is
                                                               *
not precedent except under the limited circumstances            (...continued)
                                        (continued...)     set forth in 5TH CIR. R. 47.5.4
prohibiting construction of a single family resi-             site is at least as large as the smallest of the
dence on Lot 16 of the Farnham Park subdivi-                  platted lots which are re-subdivided. Each
sion of the City of Piney Point Village in Har-               resulting building site shall be treated as a
ris County, Texas, is unenforceable. The Gov-                 lot for the purposes of these restrictions
ernment of Japan removed to federal court                     and the provisions of this instrument, unless
pursuant to 28 U.S.C. § 1441(d).                              a contrary intent is indicated.

    The district court held that (i) the restrictive       To amend the FP Restrictions, an instrument
covenant is valid, binding, and not an improper            must be filed in the county clerk’s office
amendment of the Farnham Park restriction;                 signed by at least 75% of the owners of the
(ii) the Government of Japan is entitled to en-            lots in the subdivision.
force the covenant; (iii) the covenant is also
enforceable as an equitable servitude; (iv) a                 In addition to the FP Restrictions, the
purported release of the covenant lacked suf-              Goete deed also included a restrictive cove-
ficient clarity to be enforceable and was not              nant limiting the use of lot 16. This covenant,
supported by consideration; and (v) the Gov-               clause 12 of the Goette deed, states that
ernment of Japan is not estopped from enforc-              “Grantees [the Bondesens] agree for them-
ing the covenant. Finding no error, we affirm.             selves and their successors in title that Lots 15
                                                           and 16, Block one (1), Farnham Park, Harris
                     I.                                    County, Texas will be used for no more than
   In 1972, James Goette acquired Lots 16                  one single family dwelling and appurtenances
and 17 in the Farnham Park subdivision and                 thereto.” This restrictive covenant was exe-
conveyed Lot 16 under a general warranty                   cuted for the benefit of Lot 17 to reduce the
deed (the “Goette deed”) to William and Nor-               density of housing in the area covered by the
ma Bondesen, who had purchased adjoining                   adjoining Lots 15 and 16. When the Goette
Lot 15. This deed was expressly subject to the             deed was executed, and at all times since, a
Farnham Park Subdivision deed restrictions                 single-family dwelling has existed on Lot 15,
(“FP Restrictions”).                                       leaving Lot 16 restricted and greatly enhancing
                                                           the desirability of Lot 17.
     The FP Restrictions are the embodiment of
a uniform plan of development applying to the                  In 1975, after building a house on Lot 17,
thirty lots of Farnham Park for the purpose of             Goette sold the lot and its residence to the
“improvement, development, and sale of the                 Government of Japan, which has since used it
lots and building sites in Farnham, for the ben-           as the residence of its Consul-General. In
efit of the present and future owners thereof .            1992 the Bondensens made a written request
. . .” According to paragraph 6,                           that the Consul-General sign a “Waiver of Re-
                                                           striction” that would release the property from
   [t]he owner or owners of adjoining lots                 restriction 12. Such a release would permit
   may consolidate the lots into one building              the Bondesens to separate the two lots and
   site, or may resubdivide such lots into two             build a single-family dwelling on Lot 16.
   or more building sites, provided the resub-
   division does not result in more building                  The Consul-General declined to sign the
   sites than the number of platted lots which             waiver, explaining in a letter that he “had re-
   are resubdivided and each resulting building            ceived instruction from the home government

                                                       2
that it was not in a position to consent to the             approved by Piney Point Village and the Farn-
‘Waiver of Restriction.’” Though the “Waiver                ham Park Homeowners’ Association. When
of Restriction” acknowledged that Goette had                they began clearing Lot 16 in preparation for
no present interest in Lots 16 and 17 and that              construction of a single-family dwelling, coun-
Restriction 12 had only inured to his benefit as            sel for the Government of Japan notified them
owner of lot 17, the Bondesens then obtained                that construction of a residence on Lot 16
from Goette and filed a “Release” that pur-                 would violate Restriction No. 12 in the Goette
ported to “release forever [the Bondesens] and              deed, which limited the use of Lots 15 and 16
their successors in title to Lots 15 and 16 . . .           together to no more than one single family
from any obligation whatsoever to said item                 dwelling, and that the Government of Japan, as
12.”                                                        record owner of Lot 17, insisted that the Auf-
                                                            mans comply with the restriction.
   Six years later, the Bondesens again re-
quested that the Consul-General release the                    The Aufmans sued for a declaratory judg-
property from restriction 12. The request was               ment “interpreting the deeds and the [Goette
by a more informal letter that did not specifi-             1992] Release . . . and decreeing that Plaintiffs
cally mention restriction 12, but merely stated             are free to construct a residence on Lot 16,
that the Bondesens wished to “re-plat” the                  and that any restrictions created with respect
lots. It contained no request for a release or              to Lot 16 by the deed [from Goette] are
waiver of the covenant, no expression of an in-             ineffective and unenforceable or have been
tent to re-subdivide lots 15 and 16, and no                 released by virtue of the [Goette 1992] Re-
expression of an intent to build a residence on             lease.” The district court held in favor of the
Lot 16 in contravention of the covenant. The                Government of Japan by denying the Aufmans’
only reason the letter gave was that the Con-               motion for summary judgment and granting
sul-General was “[the Bondesans] closest nei-               the Government of Japan’s motion for sum-
ghbor on [their] east side.” The Consul-Gen-                mary judgment.
eral acquiesced to the “re-plat.”
                                                                                   II.
   About nine years after the Government of                    We review a summary judgment de novo,
Japan first declined to waive its rights under              applying the same standard of review as did
Restriction 12, the Bondesans sold lot 16 to                the district court. Morris v. Powell, 449 F.3d
Stonebridge Homes, Inc. (“Stonebridge”).                    682, 684 (5th Cir. 2005) (citing BellSouth
The general warranty deed to Stonebridge                    Telecomm., Inc. v. Johnson Bros. Group, 106
made no reference to Restriction No. 12 con-                F.3d 119, 122 (5th Cir. 1997)). All justifiable
tained in the Goette deed. Stonebridge in turn              inferences to be drawn from the underlying
sold Lot 16 to the Aufmans by general war-                  facts must be viewed in the light most favor-
ranty deed on October 3, 2003, “subject to any              able to the nonmoving party. Minter v. Great
and all . . . valid restrictions . . . if any, to the       Am. Ins. Co., 423 F.3d 460, 465 (5th Cir.
extent, but only to the extent that they are re-            2005). Summary judgment is appropriate
flected by the records of the Office of the                 where, after such inferences have been made,
County Clerk . . . .”                                       the record demonstrates that there is no issue
                                                            of material fact and that the moving party is
  The Aufmans intended to build a house on                  entitled to judgment as a matter of law. Mar-
Lot 16 and have asserted that their plans were              tinez v. Bally’s La., Inc., 244 F.3d 474, 476

                                                        3
(5th Cir. 2001). The district court granted               restrictions are valid. Thus, for enforcement
summary judgment on the ground that, as a                 of restriction 12 of the Goette deed to be
matter of law, restriction No. 12 of the Goette           valid, it must comply with the requirements of
deed is valid and enforceable against the Auf-            the FP deed restrictions. Though courts do
mans as a covenant running with the land or as            not favor covenants restricting the free use of
an equitable servitude on Lot 16, with Lot 17             land, such restrictions will be enforced where
being the dominant estate.                                they are confined to a lawful purpose and are
                                                          clearly worded. Wilmoth v. Wilcox, 734
                      III.                                S.W.2d 656, 657 (Tex. 1987) (citing Davis v.
    The Aufmans contend that enforcement of               Huey, 620 S.W.2d 561 (Tex. 1981)).
restriction 12 would violate clause 6 of the
original FP deed restrictions, so restriction 12              “All doubts must be resolved in favor of the
should be declared invalid. They argue that               free and unrestricted use of the premises, and
paragraph 1 of the FP deed restrictions permits           the restrictive clause must be construed strictly
the construction of one single-family residence           against the party seeking to enforce it. Id.
on each lot or building site in Farnham Park.             (citing Brown v. Wehner, 610 S.W.2d 168,
That paragraph states that “Lots and building             170 (Tex. App.SSHouston [1st Dist.] 1980,
sites in Farnham shall be used for residential            writ ref’d n.r.e)). Furthermore, words used in
purposes only, and no buildings shall be placed           the covenant may not be enlarged, extended,
on any such lot or building site except one               stretched, or changed by construction; they
single family residence . . . .”                          must be given their commonly accepted mean-
                                                          ing. Id. (citing Curb v. Benson, 564 S.W.2d
    Thus, according to the Aufmans, a restric-            432, 433 (Tex. App.SSAustin 1978, writ ref’d
tive covenant preventing the erection of a sin-           n.r.e)). “[I]n construing a restrictive covenant,
gle-family dwelling on any Farnham Park                   the court’s primary task is to determine the in-
building site would violate the permission to             tent of its framers.” Dyegard Land P’ship v.
do so granted by the FP restrictions. The Auf-            Hoover, 39 S.W.3d 300, 308 (Tex.
mans then reason that when the Bondesens                  App.SSFort Worth 2001, no pet.) (citing Wil-
sold Lot 16 to the Aufmans’ predecessors in               moth, 734 S.W.2d at 657).
title, they effectively re-subdivided the two
lots, thereby creating two separate “building                 We must ascertain the intent of the original
sites.’”’ They conclude that the creation of              FP deed restrictions to decide whether en-
two separate building sites by this sale abro-            forcement of restriction 12 of the Goette deed
gated restriction 12 because the FP restrictions          would violate them. It is evident that neigh-
require that each be permitted to contain a sin-          borhood developers imposed these restrictions
gle-family dwelling.                                      to facilitate the creation of an ordered, residen-
                                                          tial community. Many of the FP restrictions
   “A developer generally has the unilateral              work to limit the housing density of the neigh-
right to impose on its subdivision, in the first          borhood and to homogenize the appearance of
instance, any restrictions that it chooses . . . .”       the dwellings within it.
City of Pasadena v. Gennedy, 125 S.W.3d
687, 689 (Tex. App.SSHouston [1st Dist.]                     Paragraph 12 does not offend either of
2003, pet. denied). Neither party disputes that           these purposes. The Aufmans point out that
the restrictive covenants in the original FP              the FP restrictions state that they are in place

                                                      4
to “create and carry out a uniform plan for the         dence on each building site, and therefore re-
improvement, development, and sale of lots              striction 12 acts as an amendment to the orig-
and building sites in Farnham, for the benefit          inal FP restrictions. Furthermore, because re-
of the present and future owners thereof.”              striction 12 limits the combined use of Lots 15
That language encouraging development, how-             and 16 to no more than one single-family
ever, does not in and of itself imply that the          dwelling, and Clause 6 of the FP restrictions
neighborhood developers intended that no lot            expressly permits consolidated lots to be re-
be encumbered by a restriction such as number           subdivided into two or more separate building
12. To the contrary, property owners are                sites, the Aufmans aver that enforcement of
explicitly given the right to consolidate mul-          the Goette covenant permanently binds the
tiple lots by clause 6 of the FP restrictions,          two lots together, preventing the separation
thereby limiting the use of some of the lots.           otherwise permitted by (and therefore amend-
The language the Aufmans rely on in para-               ing) Clause 6.
graph 1 of the FP restrictions is designed to
ensure that property in Farnham Park be used                For the original restrictive covenants gov-
only for residential purposes, not to guarantee         erning a subdivision to be amended, three con-
a right to build on each lot or building site.          ditions must be met. VICC Homeowners’
                                                        Ass’n, Inc. v. Los Campeones, Inc., 143
   We agree with the district court that, even          S.W.3d 832, 836 (Tex. App.—Corpus Christi
though the Bondesens’ sale of Lot 16 amount-            2004, no pet.). First, the original instrument
ed to a “re-subdivision” of Lots 15 and 16 into         creating the restrictive covenants must ex-
two “building sites,” the FP Restrictions do            pressly grant the right to amend those cove-
not require that the Aufmans build or be able           nants. Id. (citing Dyegard, 39 S.W.3d at 313).
to build a residence on Lot 16. We therefore            Second, any amendment may only correct, im-
do not agree with the Aufman’s contention               prove, or reform the agreement rather than
that the sale of Lot 16 by the Bondesens abro-          completely destroy it. Id. (citing Hanchett v.
gated the restrictive covenant imposed on the           Sunnyside Civic League, 696 S.W.2d 613, 615
property by restriction 12 of the Goette deed.          (Tex. App.—Houston [14th Dist.] 1985, writ
                                                        ref’d n.r.e.)). Finally, “the amendment may
                        IV.                             not be illegal or against public policy.” Id.
   The Aufmans aver that even if restriction            (citing Miller v. Sandvick, 921 S.W.2d 517,
12 does not violate clause 6 of the FP restric-         521 (Tex. App.—Amarillo 1996, writ de-
tions, it is invalid as an improper amendment           nied)).
of those restrictions. The district court held
that the Farnham Park restrictions do not spe-              The Aufmans argue that this case is analo-
cify that a lot owner must be able to build a           gous to Youssefzadeh v. Brown, 131 S.W.3d
residence on a particular lot or building site,         641, 644-45 (Tex. App.—Texarkana 2004, no
and therefore a covenant preventing the build-          pet.), in which a unilateral amendment of de-
ing of a lot on a particular building site is not       veloper-imposed restrictive covenants did not
an amendment of the FP restrictions.                    utilize the provided amendment process and
                                                        was therefore of “no force and effect.” The
   As stated in their first contention, the Auf-        Aufmans state that restriction 12 of the Goette
mans argue that paragraph 1 of the FP restric-          deed, like the unilateral amendment in Yous-
tions does permit the construction of a resi-           sefzadeh, amends the FP Restrictions by pre-

                                                    5
venting the re-subdivision of lots 15 and 16 as         eral’s acquiescence to the “re-plat” by entering
permitted by Clause 6 of the FP Restrictions.           into a settlement agreement with the City of
It thereby prohibits the construction of a single       Piney Point vacating the re-platted combina-
family dwelling on a building site that, as             tion of Lots 15 and 16.
stated, the Aufmans believe the FP restrictions
to permit. Therefore, because it was not re-                Release agreements “must be supported by
corded as required by the designated FP                 valid consideration,” such as “a benefit to the
amendment process, it must be declared in-              releasor or a detriment to the person released.”
valid.                                                  Tamez v. Southwestern Motor Trans., Inc.,
                                                        155 S.W.3d 564, 571 (Tex. App.—San
   We agree, however, with the district court           Antonio 2004, no pet.). The doctrine of
that the owner’s unilateral attempt in Yous-            estoppel may be invoked where the conduct of
sefzadeh “to change the characterization of [its        one of the parties has induced action in reli-
particular block] from commercial use to part           ance on it and where it would operate as a
commercial and part residential use is distin-          fraud to allow the party later to disavow the
guishable from the instant case. Id. at 643.            conduct. Johnson v. Structured Asset Servs.,
Clause 12 of the Goette deed functions within           LLC, 148 S.W.3d 711, 721 (Tex.
the scope of the FP Restrictions, a fact that the       App.—Dallas 2004, no pet.). The doctrine of
district court aptly points out. We find no er-         quasi estoppel does not require that a repre-
ror in that court’s reasoning that “because the         sentation be made, nor does it require reliance
combination of the two lots for use as one              by the party seeking to assert it. El Paso Nat’l
dwelling site is in harmony with what is ex-            Bank v. Southwest Numismatic Inv. Group,
pressly declared as possible in the FP Restric-         Ltd., 548 S.W.2d 942, 948 (Tex. Civ.
tions, the individual owners are free to impose         App.—El Paso 1977, no writ). This doctrine
a restriction such as Restriction No. 12 in the         precludes a party from asserting, to another’s
[Goette] deed.”                                         disadvantage, a right inconsistent with a posi-
                                                        tion it has previously taken. Quasi estoppel
   The two lots can still be subdivided in              applies where it would be unconscionable to
accord with clause 6 of the FP restrictions, but        allow a person to maintain a position inconsis-
this must be done in compliance with the                tent with one to which it has already acqui-
means by which the lots were originally com-            esced. Steubner Realty 19 v. Cravens Road
bined. Therefore, the district court is correct         88, 817 S.W.2d 160, 164 (Tex. App.—Hou-
that clause 12 of the Goette deed is not an im-         ston [14th Dist.] 1991, no writ).
proper amendment of the FP restrictions.
                                                            The district court properly concluded that
                       V.                               no consideration for the claimed release has
    The Aufmans reason that the Government              been established. Furthermore, neither doc-
of Japan is estopped from enforcing restriction         trine of estoppel is applicable, because the
12 of the Goette deed based on its Consul-              Consul-General’s conduct does not constitute
General’s approval of the Bondesens’ letter re-         a representation of, or an acquiescence in, a
questing a “re-plat.” The Aufmans contend               release of Restriction No. 12. The letter noted
that the approval of the “re-plat” constituted a        that the Bondesens’ property had been dam-
release of restriction 12 and that the Bonde-           aged by flood waters and that they were un-
sens detrimentally relied on the Consul-Gen-            sure what course of action to take as to the

                                                    6
structures on Lots 15 and 16. But the letter
lacked any indication of an intent to build a
dwelling on Lot 16 while maintaining a dwell-
ing on Lot 15, and it failed entirely to mention
Restriction No. 12. By agreeing to the “re-
plat,” the Consul-General did not acquiesce in
a release of this restriction, and therefore the
Government of Japan’s act of seeking its en-
forcement is not an inconsistent act or repre-
sentation.

   AFFIRMED.




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