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JOEL T. PENA, Appellant,

M. K. TIDWELL COMMERCIAL

REALTY, LTD., ET AL. Appellees.

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On appeal from the 103rd District Court of Cameron County, Texas.

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Before Chief Justice Seerden and Justices Hinojosa and Yañez

Opinion

M.K. Tidwell Commercial Realty, Ltd., Larry Jokl, and John Wood, appellees, brought suit seeking a declaratory judgment setting aside a restrictive covenant on their deeds. Joel Pena, appellant, was a defendant in the declaratory judgment suit. The trial court granted summary judgment for the appellees, and from that judgment Pena now appeals. We reverse and remand.

All of the property involved in this suit was originally owned by Kenneth and Ada Slater. The Slaters subdivided their property and began selling lots in 1963.⁽¹⁾ Most of the deeds contained a restrictive covenant that all the lots in the subdivision would remain residential, with the exception that lots seventeen, eighteen, nineteen and twenty could be retail. The deeds stated that the restrictive covenants were to be enforceable by any person who owned any land contained in the subdivision. The deeds further stated that the covenants were "to run with the land, and . . . be binding upon all the parties and all persons claiming under them for a period of twenty five (25) years [.]" Appellees own eight lots in the subdivision. Larry Jokl and John Wood own lots five, six, seven, eight, and nine; the original deeds all contain the restrictive covenant. These lots were all purchased in August, 1983. Tidwell owns lots twenty, twenty-one, and twenty-two.⁽²⁾ The deed to lot twenty does not contain the restrictive covenant, however the deeds to lots twenty-one and twenty-two do have the restrictive covenant.

Appellees brought suit under the Uniform Declaratory Judgments Act, seeking to have the restrictive covenants on their properties declared void. See Tex. Civ. Prac. & Rem. Code Ann. § 37.004 (Vernon 1997). Appellees also sought a judgment that the twenty-five year duration of the covenants had expired. On March 2, 1998, appellees filed a motion for summary judgment, which was granted with an order dated June 26, 1998. In the motion, the appellees argued that once the twenty-five year period had elapsed on a particular piece of property, the owner of that property no longer had authority to enforce the covenant. The motion also includes the argument that the twenty-five year time limit on the restrictions began to run in 1964, when the first lot containing the restriction was sold.

"A motion for summary judgment must itself expressly present the grounds upon which it is made, and must stand or fall on these grounds alone." Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 912 (Tex. 1997); Pena v. State Farm Lloyds, 980 S.W.2d 949, 952 (Tex. App.--Corpus Christi 1998, no pet). On appeal, the only grounds the appellate court is to consider are those grounds expressly presented in the motion. Travis v. City of Mesquite, 830 S.W.2d 94, 100 (Tex. 1992); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 677 (Tex. 1979); Pena, 980 S.W.2d at 952. The rules applied by an appellate court when reviewing a summary judgment are:

(1) The movant has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law; (2) in deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true; and (3) every reasonable inference must be indulged in favor of the nonmovant and any doubts must be resolved in favor of the nonmovant.

American Tobacco Co., Inc. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997) (citing Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985)).

Appellant argues, in his first issue, that the appellees have failed to demonstrate that they have an interest in the real property which is the subject of this suit. Appellant alleges that appellees have failed to produce any evidence that they own lots in the Slater subdivision. It appears that appellant is arguing that appellees do not have legal capacity to bring this suit. However, a claim that a plaintiff lacks the legal capacity to sue must be brought to the attention of the trial court by a verified pleading. Tex. R. Civ. P. 93 (1). Failure to file such a verified pleading prior to the signing of a judgment constitutes waiver. Tex. R. Civ. P. 90. If appellant is alleging a lack of capacity, then he waived this point by not raising it in a verified pleading before the trial court.

Arguably, appellant is actually attacking appellees' standing, which may be raised for the first time on appeal. See Nootise v. Williamson County Appraisal Dist., 925 S.W.2d 659, 662 (Tex. 1996). In the interest of justice, we will consider the argument that appellees have failed to produce evidence of their standing to bring this suit. In fact, appellant provided evidence of appellees' ownership in his response to appellees' motion for summary judgment. In his affidavit supporting his response, appellant states that appellees seek to remove restrictive covenants from appellees' property. Appellant has himself stated, in his affidavit, that appellees have an interest in property subject to the restrictive covenant in question. Issue number one is overruled.

With his second issue, appellant contends that the trial court erred in ruling that appellant had no right to enforce the restrictive covenants because the restrictions on appellant's land had expired. In essence, the trial court held that when the twenty-five year period has expired on a piece of property, the owner of that property loses the right to enforce the restrictive covenant on other owners.

The Texas Supreme Court has addressed this issue in Curlee v. Walker, 112 Tex. 40, 244 S.W. 497 (Tex. 1929). In Curlee, the restrictive covenant was written so as to be in force for ten years from the date each piece of property was purchased. Id. at 497. The court held that if a restrictive covenant is adopted by the owner of a tract of land as part of a general plan or scheme for the benefit of each purchaser of a part of that land, each purchaser, and his assigns, may enforce the covenant against any other purchaser or his assigns, until the covenant expires on the other purchaser's property. Id. at 498. The restriction may only be enforced against a purchaser or his assign if he bought with actual or constructive knowledge of the general plan or scheme. Id. The supreme court held that if purchasers have conformed to the restrictions, "there surely could be no equity for them to demand the observance by the last one of his obligations . . . according to the plan." Id. at 499. A purchaser who has abided by the restrictive covenant may enforce that covenant, even after it has expired on his property, against later purchasers, until it has expired on those later purchasers' properties. Id.

In the instant case, appellees admit in their pleadings that the Slater subdivision was developed under a general plan or scheme. Furthermore, the restrictive covenant in each deed states that all the lots in the subdivision are restricted to residential use, except for lots seventeen, eighteen, nineteen, and twenty. Thus, appellees had actual knowledge of the existence of the general scheme or plan. The appellant may enforce the restrictions on the appellees, as long as the restrictions on the appellees' properties are still in effect. See Curlee 244 S.W. at 499. The trial court was incorrect in issuing a summary judgment stating that the period during which appellant had the right to enforce the covenant expired in 1997.⁽³⁾ Appellant has a right to seek to have the restriction enforced against any owner who is still under the restriction. Issue number two is sustained.

In his third issue, appellant contends that the trial court erred in ruling that the restrictive covenants were void as they applied to the appellees' property, and that the restrictions had expired. To address this issue, we must determine if the trial court correctly interpreted the restrictive covenant.

Restrictive covenants are subject to the general rules of contract construction. Whether restrictive covenants are ambiguous is a question of law. Courts must examine the covenants as a whole in light of the circumstances present when the parties entered the agreement. Like a contract, covenants are "unambiguous as a matter of law if [they] can be given a definite or certain legal meaning."

Pilarcik v. Emmons, 966 S.W.2d 474, 478 (Tex. 1998) (citations omitted). Courts may not consider extraneous evidence to interpret a contract, unless the contract is first determined to be ambiguous. Kelley-Coppedge, Inc. v. Highland Ins., 980 S.W.2d 462, 464 (Tex. 1998). Ambiguity in contracts has been classified as being "patent" or latent." "[P]atent ambiguity is evident on the face of the contract . . . latent ambiguity arises when a contract which is unambiguous on its face is applied to the subject matter with which it deals and an ambiguity appears by reason of some collateral matter." National Union Fire Ins. v. CBI Indus., 907 S.W.2d 517, 520 (Tex. 1995) (citations omitted). If a contract is not fairly susceptible to more than one meaning, extrinsic evidence is inadmissible to vary or contradict the meaning of the explicit language of the contract. Id. at 521.

In the instant case, the restrictive covenants are not ambiguous. The deeds containing the covenant state that the "covenants are to run with the land and shall be binding upon all parties and all persons claiming under them for a period of twenty five (25) years[.]" Without looking at any evidence outside of the deed, each restrictive covenant is susceptible of only one meaning: the property is to remain residential for twenty-five years following the signing of the deed.

The record shows that the properties now owned by Jokl and Wood were originally purchased in 1983. The twenty-five year period began running at the time of the purchase, therefore these properties are bound by the restrictions until the year 2008. The trial court erred in granting summary judgment for the plaintiffs, in regards to these pieces of property: they are still under the restrictions, and appellant has the right to enforce these restrictions. However, the deeds contained in the record show that lot twenty was originally purchased in 1973, lot twenty-one was originally purchased in 1972 and lot twenty-two was originally purchased in 1974. The restrictions have expired for these pieces of property.⁽⁴⁾

The trial court erred in granting summary judgment, holding that the appellant's right to enforce the restrictive covenant expired in "1996 or 1997." Appellant may enforce the restrictions upon any owner who is still bound by the restrictions. Lots five, six, seven, eight and nine are still bound by the restrictive covenants. The restrictive covenants have expired for lots twenty, twenty-one, and twenty-two, and the summary judgment is proper as to these lots.

The judgment of the trial court is AFFIRMED, as it refers to lots twenty, twenty-one, and twenty-two. The judgment of the trial court, as it refers to lots five, six, seven, eight, and nine, and insofar as it holds that appellant may not enforce the restrictive covenant as to these lots, is REVERSED and REMANDED for further proceedings consistent with this opinion.

LINDA REYNA YAÑEZ

Justice

Do not publish. Tex. R. App. P. 47.3.

Opinion delivered and filed this the

2nd day of November, 2000.

1. The first lots sold were sold by Kenneth and Ada Slater. Later, sales were made by Kenneth Slater alone, as Ada had passed away. The lots owned by Jokl and Wood were originally purchased from a person acting under a power of attorney for Kenneth Slater. Throughout this opinion, we will refer to all of the properties as having been purchased from Slater, whether the properties were purchased from Kenneth and Ada, Kenneth alone, or Kenneth's assignee.

2. Lot twenty was originally purchased from Kenneth Slater by Jesus and Hortencia Gonzalez in 1973, Lot twenty-one was originally purchased from Slater by Domingo and Estela Salazar in 1972, and Lot twenty-two was originally purchased by Mariano and Virginia Caballero in 1974.

3. The trial court held that the covenants on appellant's property "expired by lapse of time in the years 1996 and 1997." Apparently, the trial court was calculating twenty-five years from the dates appellant's property was originally purchased, in 1972. There is no explanation in the record to support the ruling that the time lapsed in 1996.

4. In any event, lot twenty was one of the lots that, by the terms of the restrictive covenant, could be used for retail purposes.