* Pursuant to 5 T H C IR. R. 47.5, the court has determined that this opini o n

should not be published and is not precedent except under the limited

circumstances set forth in 5 TH C IR . R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 96-20363

Summary Calendar

_______________

BERLIOZ INVESTMENTS, LTD.,

Plaintiff-Appellant-Cross Appellee,

VERSUS

TANGLEWOOD HOMES ASSOCIATION, INC.,

Defendant-Appellee-Cross Appellant.

_________________________

Appeal from the United States District Court

for the Southern District of Texas

(H-94-CV-4081)

_________________________

January 10, 1997

Before SMITH, DUHÉ, and BARKSDALE, Circuit Judges.

JERRY E. SMITH, Circuit Judge: *

Berlioz Investments, Ltd. (“Berlioz”), appeals a declaratory

judgment that it may not build a swimming pool, driveway, parking

area, fence, or hedge on one of its two lots. Concluding that the

subject restrictive covenants do not proscribe the anticipated use,

we reverse.21 The racially restrictive portion of the covenants, of course, is not

enforceable. See Shelley v. Kraemer , 334 U.S. 1 (1948).

3 I.

The relevant facts are not in dispute. Berlioz, a Bahamian

corporation, owes two lots (“Lot 4” and “Lot 20”) in the Tanglewood

Addition. The two lots, which face different streets, are offset

slightly but abut each other on the rear of each lot.

Berlioz has constructed a house on Lot 20 and wishes to

construct a swimming pool, driveway, parking area, fence, and hedge

on Lot 4. All of these improvements will be for the use of the

r esidents of Lot 20, as Berlioz has no intention of building a

house on Lot 4.

The lots are subject to restrictive covenants that Tanglewood

Homes Associa tion, Inc. (“Tanglewood”), a Texas association, has

the right to enforce. 1 The covenants state, in relevant part:

(2) Thi s property shall be used for residence

purposes only.

(3) Only one residence shall be constructed on each

lot; however, this shall not prohibit the construction of

a residence on a portion of two or more lots as shown by

said map, provided such tract constitutes a homesite as

defined in the succeeding paragraph.

(4) Parts of two or more adjoining lots facing the

same street in the same block may be designated as one

homesite provided the lot frontage shall not be less than

the minimum frontage of lots in the same block facing the

same street.

. . .

(6) The word “house” or “residence” as used herein

with reference to building lines shall include galleries,4

porches, porte cocheres, steps, projections and every

other permanent part of the improvements, except roofs.

Tanglewood denied Berlioz permission to begin construction.

Berlioz then filed an action for a declaratory judgment that it

could proceed. Tanglewood counterclaimed for a declaration that

Berlioz’s plans would violate the covenants.

The district court held a bench trial and, at the close of

Berlioz’s case, granted Tanglewood judgment as a matter of law and

denied Tanglewood’s request for attorneys' fees. Berlioz filed a

timely notice of appeal, and Tanglewood filed a timely cross-appeal

of the denial of fees.

II.

A.

Under Texas law, whether a restrictive covenant is ambiguous

is a question of law that is reviewed de novo

. S ee Candlelight

Hills Civic Ass’n v. Goodwin

, 763 S.W.2d 474, 477 (Tex. App. SSHouston [14th Dist.] 1988, writ denied). A mere disagreement over the

interpretation of a covenant does not render it ambiguous. S ee

Miller v. Sandvick

, 921 S.W.2d 517, 522 (Tex. App. SS Amarillo 1996,

writ denied). Instead, a covenant is ambiguous “when it is

susceptible of two or more meanings.” S ilver Spur Addition

Homeowners v. Clarksville Seniors Apartments , 848 S.W.2d 772, 774

(Tex. App. SS

Texarkana 1993, writ denied).

When a covenant is unambiguous, its construction is a question2 Wilmoth survives the enactment of T EX

. P ROP

. C ODE A NN

. art. 202. 0 03(a)

(Vernon 1995). S ee Ashcreek Homeowners Ass’n v. Smith

, 902 S.W.2d 586, 589 (Tex.

App. SS Houston [1st Dist.] 1995, no writ).

5 of law reviewed de novo

. S ee Candlelight Hills

, 763 S.W.2d at 477.

The words and phrases used should be given their “commonly accepted

meaning,” and the restriction “may not be enlarged, extended,

stretched or changed by construction.” W ilmoth v. Wilcox

,

734 S.W.2d 656, 657-58 (Tex. 1987). “[T]he restrictive clause must

be construed strictly against the party seeking to enforce it.”

Id. at 657. 2

B.

We agree with the district court that the relevant paragraphs

of the restricti ve covenants, as applied to the instant controversy, are susceptible of only one meaning and thus are unambiguous. Paragraph 3, read in conjunction with paragraph 4, prohibits

two things: (1) building more than one “residence” on a single lot

and (2) building a single “re sidence” on two or more lots unless

the lots face the same street and have the appropriate frontage.

This paragraph bars Berlioz’s plans only if “resi dence” includes

swimming pools, driveways, parking areas, fences, and hedges.

Tanglewood urges that “residence” refers to “yards, garages,

driveways, carports, off street parking spaces, fences, and walls,

and/or swimming pools . . . .” This definition flies in the face

of the commonly accepted meaning of the word. C f. W EBSTER ’ S T HIRD N EW3 Tanglewood also suggests that paragraph 3 must be read this broadly or

it is meaningless, because city ordinances prevent the construction of a building

ov er the utility easements in the rear of the lots. S ee Crispin v. Paragon

Homes, Inc.

, 888 S.W.2d 78, 81 (Tex. App. SS Houston [1st Dist.] 1994, writ denied)

(stating that a covenant should be construed so as not to render any provision

meaningless). Because city ordinances may change, we are not surprised that

Tanglewood included this provision in the covenant.

6 I NTERNATIONAL D ICTIONARY 1931 (W EBSTER ’ S ) (1986) (defining “residence”

as “a building used as a home”). It also is suspect in light of

paragraph 6, which defines “residence” (for the purpose of building

lines) solely in terms of things that usually are physically

attached to a building. 3 Because we conclude that “residence” does

not encompass the improvements Berlioz proposed, paragraph 3 does

not bar Berlioz’s planned construction.

C.

Tanglewood suggests that pa ragraph 4 has restrictive power

above and beyond its role in defining the restrictions contained in

paragraph 3. Again, we find that this reading opposes the commonly

accepted meaning of the words in the covenant. Paragraph 4

contains no words of prohibition; it merely explains when two lots

facing the same street may be designated as a homesite. C f.

Crispin

, 888 S.W.2d at 81 (stating that a restriction containing no

words of prohibition may not be construed to forbid that which it

does not allow).

Even assuming arguendo

, see, e.g.

, R ashidi v. American

President Lines

, 96 F.3d 124, 126 (5th Cir. 1996), that paragraph 44 Berlioz requests that the costs of the district court s uit be taxed

against Tanglewood. We leave the proper allocation of these costs to the sound

discretion of the district court.

7 has restrictive power, Tanglewood still would not prevail.

Paragraph 4 then would prohibit designating lots 4 and 20 as “one

homesite.” Tanglewood suggests that “homesite” refers to any use

of two lots in conjunction with each other. This definition is not

consistent with the commonly accepted meaning of “homesite.” Cf.

W EBSTER ’ S at 1083 (defining “homesite” as “a location suitable for

a home”). This provision simply does not prohibit all uses of lots

in conjunction with each other. We see no reason why “homesite”

should be understood to include a swimming pool as well as a home.

III.

In conclusion, we find that t he Tanglewood restrictive

covenants are unambiguous. As a matter of law, they provide no bar

to Berlioz’s proposed construction. Because Tanglewood no longer

is the prevailing party, the question whether the district court

abused its discretion in denying Tanglewood legal fees is moot. 4

The judgment is REVERSED and REMANDED for further proceedings

consistent with this opinion.