X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:The Anderson Mill Municipal Utility District and neighborhood resident Pascual Marquez obtained a judgment enforcing restrictive covenants to bar John and Theresa Robbinses’ parking of a 30-foot travel trailer at their residence and constructing a 14-foot tall trailer-port to house it. Specifically, the district court declared that the Robbinses’ trailer-port and trailer violated deed restrictions, that the district and Marquez had not waived their rights to enforce the deed restrictions, and that the Robbinses must remove the trailer-port and trailer within 30 days and not place such a structure on the property in the future. But the district court ordered each party to bear its own attorney’s fees and costs. The parties appealed. HOLDING:Affirmed in part, reversed and rendered. The parties’ dispute centers on whether the district court was required to award the district its attorney’s fees. The district argues that Texas Water Code 54.237 made such an award mandatory. While the Robbinses concede that 54.237 is a mandatory attorney’s fee statute, they respond with various grounds they contend could support the judgment. The Robbinses argue that the district failed to preserve its issue regarding attorney’s fees by failing to object or otherwise raise the issue post-judgment. But the court’s examination of the record leads it to conclude that the district sufficiently alerted the district court to its contentions so as to preserve error. The court pointed out that the district had not only alerted the district court to its argument that it was entitled to attorney’s fees under 54.237, but had briefed the issue at some length. In fact, the court finds that attorney’s fees was apparently a primary disputed issue before the district court as it prepared to render judgment following trial, and that the district court ruled on the issue when rendering judgment. The Robbinses’ waiver argument rests entirely on the fact that the district did not object post-judgment to the district court’s failure to award attorney’s fees. But the court notes that there is no categorical rule requiring a party, after having alerted the trial court to its arguments regarding attorney’s fees prior to judgment, to also raise that issue post-judgment in order to preserve error on that issue. Therefore, the court concludes that the district preserved error. Having found no legal support for a judgment that both enforced the restrictive covenant on behalf of the district and refused to award it attorney’s fees, the court notes that it would be required to sustain the district’s issue unless there are grounds for reversing the portion of the judgment awarding the district relief under 54.237. Therefore, the court moves on to address the Robbinses’ arguments on appeal. The Robbinses contend that 54.237 placed the burden on the district to disprove that it had waived its right to enforce the restrictive covenants and that the district failed to meet this burden. They rely on the wording of 54.237′s definition of restriction, which includes limitations that have “not been abandoned, waived, or properly rescinded.” The court finds that there was conflicting evidence regarding the consistency with which the district had enforced restrictions on structures, set-backs and vehicles. At trial, the Robbinses introduced photographs of alleged violations to which the district purportedly had not objected. The district introduced evidence demonstrating its prior enforcement efforts, including demand letters, suits and attempts to reach agreements over other alleged restrictions. The court concludes that the district’s evidence rises to a level that would enable reasonable and fair-minded people to differ in their conclusions as to whether the district had waived the restrictive covenants at issue. Consequently, there was legally sufficient evidence that the district did not waive the restrictions. The Robbinses next assert that 54.237 is unconstitutional on its face. The court notes that, to prevail on their facial challenge, the Robbinses have the burden of showing that 54.237 is unconstitutional in every possible application. But the court notes that if, for example, a restrictive covenant prohibited dumping oil into a storm sewer, the district would be within its constitutional authority in enforcing the restrictive covenant. Thus, the court holds that 54.237 is not unconstitutional in every possible application and, therefore, is not facially unconstitutional. The court sustains the district’s issue and overrules the Robbinses’ issues. It affirms the portion of the district court’s judgment awarding declaratory and injunctive relief to the district, reverses the portion regarding attorney’s fees, and renders judgment awarding the district attorney’s fees in the amount of $89,000. OPINION:Pemberton, J.; Law, C.J., Smith and Pemberton, JJ.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 1 article* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.