Opinion
NO. 03-16-00502-CV
02-07-2018
Vicki Belcher and Michael Belcher, Appellants v. Geary Family Trust; Michael Geary and Nancy Geary as Trustees of the Geary Family Trust; and Woodlake Property Owners Association Section One, Inc., Appellees
FROM THE 146TH JUDICIAL DISTRICT COURT OF BELL COUNTY
NO. 262,852-B, HONORABLE JACK WELDON JONES, JUDGE PRESIDING MEMORANDUM OPINION
This is an appeal from a summary judgment rendered by the district court of Bell County in a restrictive covenant case. Appellants are Michael and Vicki Belcher, husband and wife (the Belchers). Appellees are Michael and Nancy Geary, husband and wife, Trustees for the Geary Family Trust and Woodlake Property Owners Association Section One, Inc. This Court will affirm the judgment.
The Belchers and Gearys are next-door neighbors on Blue Ridge Drive in the Cliffs of Woodlake subdivision located in Bell County. The parties' dispute commenced when the Belchers bought a flock of chicken hens that they kept in their backyard.
The Belchers asserted that their college-age daughter, Kelsey, suffered periodic spells of depression. At Kelsey's request, they purchased the chickens "for medical reasons." They claimed that the presence of the hens seemed to have a soothing effect on their daughter's condition. After spending time with the chickens, Kelsey "appeared more active, slept less erratically and socialized more often."
The Gearys and others in the subdivision, perhaps with ruffled feathers, did not welcome the advent of the chickens. Beginning in February 2012, through the Association, they notified the Belchers that keeping chickens in the backyard was in violation of paragraph 12 of the restrictive covenants governing the subdivision.
Paragraph 12 provides in pertinent part:
No animals, livestock or poultry shall be raised, bred or kept on any lot, except that dogs, or other household pets may be kept provided that they are not kept, bred or maintained for an [sic] commercial purposes.
The Belchers were not moved by their neighbor's opposition to the presence of the hens. They argued that the hens were mere "household pets" within the meaning of paragraph 12.
In response, the members of the Association passed a "clarification" of paragraph 12. The clarification specifically provides that poultry such as chickens are not "usual household pets" within the meaning of paragraph 12. The relevant portion of the clarification is a follows:
The Board of Directors shall have the right to determine what animal shall be deemed a "usual household pet," applying the common meaning of the phrase. However, it is expressly understood that animals that fall under the following classification are not "usual household pets" and can never be deemed as such: poultry (such as chickens, turkeys, ducks, geese, and guinea fowl) . . . .
After hearing, the district court granted the first amended motion for summary judgment filed by the Gearys and the Association. By granting the motion for summary judgment, the district court necessarily concluded that keeping chickens on the lot was prohibited by the restrictive covenants.
On appeal, the Belchers continue to argue that their chickens are household pets within the meaning of the original paragraph 12 of the restrictive covenant. This Court doubts that the phrase "household pets" contemplates a flock of chicken hens. However, we are not called upon to make that determination because the Association's clarification of paragraph 12 expressly provides that chickens are not household pets and "can never be deemed as such."
The Belchers respond that there was no summary-judgment proof that a majority of the property owners in the Association voted in favor of the clarification of paragraph 12. The Belchers observe correctly that the rules of the Association require a majority vote of the property owners to make amendments to the restrictive covenants.
The first amended motion for summary judgment is supported by the affidavit of Bill King, acting president of the Association and custodian of the records. In his affidavit, King set out the wording of the clarification and swore that the clarification was passed by a majority of the homeowners in the Association. The Belchers filed no summary-judgment proof to the contrary. Their claim has no merit.
The Belchers urge that the Association waived enforcement of paragraph 12 by allowing Mary Bollinger, in years past, to keep chickens on her lot. In her affidavit, Ms. Bollinger swore that she raised chickens for sale and sold and gave away their eggs. She never received notice from the Association that she was violating the restrictive covenants.
By date of the first hearing on the motion for summary judgment, the Belchers had not pleaded waiver, an affirmative defense. At that hearing, counsel for the Gearys and the Association pointed out that waiver had not been pleaded. Weeks later, without obtaining leave of court, the Belchers attempted to amend their pleading to include waiver. Rule 166a(c) specifically places the burden on one seeking to file a late pleading response to obtain leave of court. See Tex. R. Civ. P. 166a(c); Neimes v. Kien Chung Ta, 985 S.W.2d 132, 138 (Tex. App.—San Antonio 1998, pet. dism'd). Because the Belchers did not obtain leave of court, we will not consider their waiver argument.
The Belchers complain finally that the movants' summary-judgment proof "was not properly authenticated and did not conform to the Texas Rules of Evidence." To preserve error, one objecting to summary-judgment proof must obtain a ruling. Washington v. Tyler Indep. Sch. Dist., 932 S.W. 2d 686, 689 (Tex. App.—Tyler 1996, no writ). By failing to obtain a ruling on their objections, the Belchers have waived their complaints regarding the movants' summary-judgment proof. Id. at 689.
The judgment is affirmed.
/s/_________
Bob E. Shannon, Justice Before Chief Justice Rose, Justices Goodwin and Shannon Affirmed Filed: February 7, 2018 Before Bob E. Shannon, Chief Justice (retired), Third Court of Appeals, sitting by assignment. See Tex. Gov't Code § 74.003(b).