### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-11-00270- CV

Jeff rey A . F ox, Appellan t

v. Jam es F . O’Leary, Jr ., Appellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 126 TH JUDICI AL DISTRICT NO. D-1 -GN-1 0-0 0239 4, H ONO RAB LE AMY CLARK MEACH UM, J UDGE P RESIDING

M E M O R A N D U M O P I N I O N

J eff rey A. Fox a

ppeals a take- nothing judgme nt r ender ed ag ainst him in his suit for injunctive relief arising out of his c laim tha t James F. O’L ear y , J r.’s construction of a home on his lot violated deed restric tions g overni n g t h ei r s u bdivision. After a bench trial, the trial court conclude d that Fox’s claims wer e barr ed by the aff irmative defe nse of lache s. We w ill reve rse the trial court’ s judgme nt and re mand the ca use for further proce eding s.

F ACTUAL AND P ROCEDURAL BACK GR OUND Fox and O’L ear

y own adjoining lots in the Hi gh l an d Hi lls subdivision in Austin. O’L ear y purcha sed his lot in 1977, and Fox purcha sed his lot in ear ly 2007. At the time of both purcha ses, the lots had houses on them that wer e built during the orig inal develop m ent of the subdivision in the 1960s. All the lots in the subdivision, including those owned by Fox and O’L ear y ,are subject to deed restric tions rec orded in Volume 2392, Pag e 62 0 o f t h e T ra vis County Dee d

Records. The deed r estrictions have been in plac e since 1963 and provide , in pertinent par t:

8. Set-Ba ck: Fr ont L ine, Side L ine, and Rea r L ine No structure shall be located or ere cted on any plot near er to the front plot line than 40 fee t; or near er tha

n 10 fee t to any

side line; or near er than 25 fee t to a side street line; or near er than 20 fee t to any rea r line; provided, that the [S ]ubdi viders, or in the alterna te, the Arc hitectura l Commi ttee ref err ed to in Parag raph 10 may vary set-bac k require ments to City minimum wher e in the opinion of the Subdividers or the Commi ttee no adver se eff ect will be had on the neig hborhood and wher e, beca use of tree s and/or topogr aphy , the strict enfor ce m en t of the provisions of this para g raph would milit ate ag ainst the best utili z at i on of the lot. Under no circ umstances, howeve r, shall a structure approa ch near er than 25 fee t to the front li n e; o r near er than 7 1/2 f

eet to a ny side line; or near er than 10 fee t to any rea r line, or if a corne r, near er tha n 15 fee t to a side stree t line.

I n October 2007 O’L ear

y ’s house was destroy ed by fire. I n 2009 O’L ear y decide d to rebuild on the lot and hired an arc hitect to prepa re plans and specific ations for the new construction. Construction beg an in J anuar

y 2010. By mid-Fe bruar

y the slab for the foundation (appa rently slightly larg er than the old slab) wa s poured, a nd by ear ly Marc h fra ming of

the exterior walls wa s under wa y . On Marc h 4 Holly Eaton, O’L ear y ’s next-door neig hbor o n t h e south side of his
proper ty , notified O’L ear

y that his new house was in violation of the setbac k provisions of the deed restric tions. Specifica lly , she informed him that the house was near er than 10 fee t to the boundary betwee n their lots. At that time she showed O’L ear y a copy of the deed restric tions. The next day , O’L ear y revie wed the Travis County rea l proper ty rec ords and confirme d the exis tence of the deed restric tions Eaton had showed him. O’L ear y testified that he “we nt down there to chec k to find out wh ether or not there wer e any other additional documents that wer e rele vant to the do cu m en t s o r

2the copy of the deed restric tions [Eaton] had provided” and “to find out if there was an y thing in addition to those deed restric tions that would impact the validity of the orig inal document.” O’L ear y further testified:

But still and all, I rea liz ed that the deed restric tions—reg ardle ss of what [Eaton] did to soften the blow, so to speak, the deed restric tions wer e what they wer e. And I rea liz ed shortly there afte r—I probably measure d the north proper ty line and rea liz ed that I was in violation at that point also. And all throug h this proc ess, I ’m thinking how can I live here in this proper t y , i n t h i s s ubdivision for 30 y ear s, and be totally oblivious of any deed restric tions? And I —I fe l t as t h o ug h I was absolutely in an incre dulous position to be in. I started thinkin g ab o u t , at that time, the amount of money , whi ch was in the neig hborhood of well over $200,000 that I had—that we had d ra wn already on the construction draw , and the amount of work that we had done on the house, the fra ming had been complete, and I took all of those things into acc ount and dec ided to g o ahea d and continue w ith the—with the project.

I n mid-May Eaton had a conver sation with Fox, who was O’L ear y ’s neig hbor to the north, during which she pointed out the fac t tha t O’L ear y ’s new house was being built in violation of the setbac k provisions in the deed restric tions. Fox revie wed the deed restric tions and confirme d that Eaton was corr ect. Fox then attempted to contac t O’L ear y . Not having a telephone number for O’ L eary , Fox finally located him by driving throug h the neighborhood looking for O’L ear y ’s car, whi ch was parke d in front of the home O’L ear y was living in while his new house was under construction. Fox testified that on J une 10, he and O’L ear y discussed the new construction and that he asked O’L ear

y how he was able to circ umvent the deed restric tions. Acc ording to Fox, O’L ear y stated that he did not think the deed restric tions wer e enfor cea ble. On J une 14 Fox notified O’L ear y in writing t h at h e objected to the new construction beca use it violated the deed restric tions and

3advised O’L ear y to consult with his ar ch i t ec t reg arding how to reme dy the violations. O’L ear y testified that he did not stop construction on the house be cause

I felt in my hear

t of hear ts tha t g iven the amount of work that had been done on the house, g iven what it would take to now rede sign the house, I thought I was just in an impossibl e situation, and I wasn’t about [si c] halting construction at that point, allowing the projec t to lay [si c] dormant while we tried to work throug h this proce ss. I felt as though, at least until I had rec eived this letter and then may be a littl e bey ond it, that there was a chanc e that we might be able to—specifica lly my self and Mr. Fox might be a

ble to work something out to accommodate his conce rns.

I n J uly 2010 Fox sued O’L ear y for brea ch of restric tive co v en ants , alleg ing that O’L ear y ’s co n s t ruction of the home violated deed restric tions g overning their subdivision. Fox
soug ht a perma

nent injunction that would require O’L ear y to br ing his home into compliance with the deed restric tions. O’L ear y filed a g ener al denial and, as aff irmative defe nses, asser

ted that Fox’s claims wer e bar

red by limit ations, waiver , lache s, and uncle an hands. I n a countercla im, O’L ear y alleg ed that Fox ’s house a lso failed to comply with the deed restric tions and sought to enjoin Fox fr o m al l o wi n g his house to rema in on his proper ty in violation there of. O’L ear y also soug ht a decla ration that Fox’s rig ht to enfor ce the deed restric tions was barr ed by limit ations and had been waived by (1) the prese nce of other non-conf o rm i n g re s i dence s in the subdivision, and (2) Fox’s conduct in waiting an unreas o n ab le l eng th of t ime to asser t his claim. O’L ear

y reque sted that the trial court declare any non-complianc e to be de minimis , balanc e th e eq u i t i es between the parties, and allow the hous e to rema in in place

. After a four-day bench trial, the court render ed judgment in O’L ear y ’s favor on the g round that he had established that Fox’s cla i m s were barr ed by the aff irmative defe nse of lache s. The trial court expressly denied O’L ear y ’s other aff

irmative defe nses

4and also re ndere d judgme nt that O’L ear y take nothing by way of hi s counter claim. Fox perfe cted this appeal.

STANDARD OF REVIEW

I n an appeal from a judgment rendere d afte r a bench trial, th e trial court’s findings of fac t have the same weig ht as a jury ’s verdic t, and we revie w the leg al and fac t u al s u ff i ci ency of the evidenc e to support them as we would revie w a jury ’s finding s. See Catali na v. B l asdel , 881 S.W .2d 295, 297 (Tex. 1994). When the trial court’s express finding s of fac t do not addre ss all
g rounds for r ecove ry

or def enses, a n appellate court implies finding s of fac t r eg arding the omitted
g rounds or defe nses that are neede d to support the judgme nt. Pulley v. Milberger , 198 S.W .3d 418, 427 (Tex. App.—Dallas 2006, pet. denied)

. To d etermine whether leg ally sufficie nt evidenc e supports a challeng ed findin g, we m u s t cre dit evidenc e favor able to the finding if a rea sonable fac tfinder c ould, disreg ard c ontrary evidenc e unless a r easona ble fa ctfinder

could not, and re verse the fac tfinder’ s deter

mination only if t he evidenc e prese nted in the trial court would not enable a

rea sonable and fair- minded fac tfinder to rea ch the judgme nt under revie w. City of Keller v. W

ilson , 168 S.W .3d 802, 827 (Tex. 2005). W e wi l l sustain a leg al-suff iciency challeng e if the rec ord

reve als: (1) the complete absenc e of evidenc e of a vital fac t; (2) that the court is barr ed by rules of law or evidenc e from g iving weig ht to the only evidenc e offe red to prove a vital fac t; (3) t h at t he evidenc e offe red to prove a vital fac t is no m o re t h an a m ere scintilla; or (4) that the evidenc e conclusively

establishes the opposite of a vital fac t. Id. at 810.
I n revie wing a fac tual-suffic iency challen ge, we examine the entire rec ord and consider and weig h all the evidenc e, both in support of and contra ry to the challeng ed finding

. Ortiz

5v. Jones , 917 S.W .2d 770, 772 (Tex. 1 9 9 6 ). W h en a party attacks the fac tual sufficie ncy of an

adver se finding on an issue on which it has the burden of proof, it must demonstrate on appea l that the adverse finding is ag ainst the gre at weight and prep o n d er an ce of t he evidence. Urista v. Bed, Bath & Bey ond, Inc ., 245 S.W .3d 591, 601 (Tex. App.—Houston [1st Dist.] 2007, no pet.). When

a party attacks the fac tual sufficie ncy of an adver se finding on which it does not have the burden of proof, we set aside the finding only if the evidenc e is so wea k as to make the finding clea rly wrong and manife stly

unjust. Cain v. Bain , 709 S.W .2d 175, 176 (Tex. 1986). We revie w the trial court’ s conclusions of law de novo. BMC Software Belgium, N.V.

v. Marchand , 83 S.W .3d 789, 794 (Tex. 2002). Although an appellant may not cha l l en ge a trial court’s conclusions of law for fac t u al s u fficiency , we revie w de novo the trial court’s leg al conclusions dra

wn from the f

acts to dete rmine whe ther the c onclusions are corr ect. Id.

DISCUSSIO N I n his first issue, Fox complains of the trial court’s conclusion that lache s barr ed his claim, challeng ing both the leg al and fac tual sufficie ncy of the evidenc e supporting that conclusion.
L ache s is an equitable reme dy that preve nts a plaintiff from asser ting a claim due to a lapse of time. See Gree n v. Parrack , 974 S.W .2d 200, 204 (Tex. A pp.—San Antonio 1998, no pet.); Bluebonnet Sav. Bank, F.S.B. v. Grayridge Apartment Homes, Inc. , 907 S.W .2d 904, 912 (Tex. App.—Houston [1st Dist.] 1995, writ denied)

. T h e d ef ense of lache s require s proof of (1) a party ’s unrea sonable delay in asserting a leg al or e quitable rig ht, and (2) a g ood-fa ith detrimental cha ng e of position by another beca

use of the delay

. Rogers v. Ricane Enters., Inc. , 772 S.W .2d 76, 80 (Tex. 1989)

. The party asser

ting lache s has the burden of proving both of these elements. C o l ton v. Silsbee State

6Bank , 952 S.W .2d 625, 629 (Tex. App.—B ea u m ont 1997, no pet.). Moreove r, as an equitable

theory , lache s is subject to the d o ct ri n e o f “uncle an hands,” which require s that a party seeking equity must come to court with clea n hands. See Eagle Global Logist ics, L.P. , 89 S.W .3d 761, 766 (Tex. App.—Houston [1st Dist.] 2002, orig

. proce eding ); see also Truly v. Austin , 744 S.W .2d 934, 938 (Tex. 1988) (citing City of W ink v. Griffit h Amuseme nt Co. , 100 S.W .2d 695, 702 (Tex. 1936), and Breaux v. Allied Bank , 699 S.W .2d 599, 604 (Tex. App.—Houston [14t h Dist.] 1985, writ ref ’d n.r.e.) ) (par

ty seeking equitable reme dy “must do equity and come to court with clea n hands”) ; Tru o n g v. City of Houston , 99 S.W .3d 204, 212 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (par ty with “unclea

n hands” is not permitted t o pursue e quitable re lief). The doctrine of “uncle an hands” bars equitable relief soug ht by “one whose conduct in connec tion wi t h t h e same matter

or transac tion has been u n co n s ci en tious, unjust, or marke d by a want of g ood faith, or one who has v i o l at ed t h e principles of equity and rig hteous dealing .” In re Jim W alter Homes, Inc ., 207 S.W .3d 888, 899 (Tex. A pp.—Houston [14t h Dist.] 2006, orig . proce eding ) (quoting Thomas
v. Mc Nair , 882 S.W .2d 870, 880-81 (Te x . App.—Corpus Christi 1994, no writ)). We first addre ss whether O’L ear y had “uncle an hands” with respe ct to the events at issue in this case . The evidence prese nted at trial reve als that O’L ear y closed on t h e co nstruction financ ing for his new house in Dec ember 2009. I n connec tion with the financ ing, O’L ear y obtained

a new title commitment. S ch ed u l e B of the t itle policy sets forth the Ex ceptions from Coverag e. The fir st ex ception appe aring on Schedule B states:
We do not cover loss, costs, attorne y ’s fe es and e x penses r esulting f rom:

71. T h e f o ll o w in g restric tive covena nts of rec ord itemiz ed below (We must either insert spec ific re cording

data or delete this exception): Volume 16, Pag e 84 Plat Records; Volume 2392, Pag e 620, Volume 2650, Pag e 66, De ed Rec ords, Tra vis County , Texas.

I n connec tion with the closing , O’L ear y executed a “Closing Affidavit.” The aff idavit contains

sever al par ag raphs, each of which is initialed by O’L ear y . The second and third pa rag raphs state 1 the following :
2) RECEI PT OF TI TL E COMMI TMENT: You acknow ledg e having rece ived and revie wed a copy of the Title Commi tment issued in connec tion with this transac tion and y ou understand that y our Owner Title Policy will contain the exceptions set forth in Schedule B o f the Title Commi tment, and any additional exceptions to title resulting from the documents i nvol v ed i n this transac tion. 3) NOTI CE: You may wish to consult an attorney to discuss matters shown in Schedule B or C of the Title Comm i t m ent. These matters will affect your title and use of

your Property

. . . . Title Company does not repr esent that y our intended use of the Property is allowed under the law or un d er the restrictions or exce

ptions to t itle on your Property

. (Emphasis added.) I t is evident, there fore , that O’L ear y was notified of the exis tence of deed restric tions g overning his proper ty in Dec ember 2009. Moreove r, he was informed of their prec ise location in the Travis Coun t y re al proper ty rec ords. Rather than underta ke to familiarize himself

w it h the content of the deed restric tions, O’L ear y appar ently took no steps to obtain and revie w them

.

The aff idavit expressly states that by initial ing the para g raphs, O’L ear y “ac knowledg es 1 understanding of the disclosures being made by Title Company and aff irms the repr esenta tions made to [ him] .” 8Whil e O’L ear y claims t o have lacke d actua l notice of the content of the deed restric tions, that information was r eadily

available to him had he ac ted with rea sonable dilig ence .

Means of knowledg e with the duty of u s ing them are in equity equivalent to knowledg e itself.

. . . So that, in leg al parla nce, actua l knowledg e embra ces those things of which the one soug ht to be char g ed has express information, and likewise t hose things which a rea sonably diligent inquiry and exercise of the mea n s o f information at hand w ould have disclosed.
Champlin Oil & Ref. C o. v. C hastain , 403 S.W .2d 376, 388 (Tex. 1965) (quoting Hex ter v. Pratt , 10 S.W .2d 692, 693 (Tex. Comm’n App. 1928, judgm’ t adopted) (“Where there is a duty of finding out and knowing , neg lige nt ig noranc e has the same eff ect in law a s actua l knowledg e.”) ); see also Cooksey v. Sinder , 682 S.W .2d 252, 2 5 3 (T ex . 1 9 8 4) (per curia m) (“A purcha ser is char g ed with knowledg e of the provisions and contents of r e c o r d ed instruments.”). O’L ear y ’s neg lige nt ignor ance of the constraints the deed restric tions i m p o s ed o n his use of his proper ty equate s to actua l knowledg e of them. We conclude , there fore , that the evidenc e conclusively establishes that O’L ear y h ad “u n cl ean hands” with respe ct to the matter at issue in this case —constructing a house on his
proper ty in violation of the deed restric tions. Whil e the trial court made no express finding t h at O’ L ear y did not have “uncle an hands,” we conclude that any implied finding to that eff ect i s n o t supported by leg ally sufficie nt evidenc e; rathe r, the evidenc e conclusively establishes the opposite.

I n addition to the predic ate require ment that O’L ear y , as a party seeking equity , come
to court with clea

n hands, he was also require d to establish both elements of the aff irmative defe nse of lache s. As such, he was obliga ted to prove that he conducte d himself in g ood faith. See City of
Fort W orth v. Johnson , 388 S.W .2d 400, 403 (Tex. 1964) (p ar t y as s er ting aff irmative defe nse of

9lache s must prove that he chang ed h i s p o s i tion in g ood faith). O’L ear y ’s lack of diligenc e in familiarizing himself with the constraints imposed on his projec t by the deed restric tions, of which he was awa

re no later than Dec ember 2009, conclusively establishes that he did not act in g ood faith. Moreove r, O’L ear

y testified that “within a number of day s” of his neig hbor telling him on Marc h 4 that the construc tion violated the deed restric tions, a nd afte r he “lost a number of nig hts of sleep,” he consciously “dec id ed t o go ahea d and continue” the projec t. Whil e the trial court made no express finding that O’L ear y acte d in g oo d fa i t h , ei t her when the projec t commence d or when he decide d to continue construction within day s of being told by his neig hbor that he was violating the deed restric tions, there is insufficient evidenc e to support any implied finding to that eff ect. Be cause O’L ear y had “unc lean ha

nds” with respe ct to the transa ction at issue and did not ac t in g ood faith, the trial court err ed in concluding that Fox ’s cl ai m for brea ch of restric tive covena nts was barr ed by lache s. I n three crosspoints, O’L ear y contends t h at the judgme nt should be upheld on the alterna tive g rounds t hat, as a matter of law, F ox ’s claims ar e bar red by limit ations, waiver , and/or unclea n hands. The trial court’s judgme nt ex p re s s ly denied eac h of these aff irmative defe nses. When attacking the leg al suffic iency of the e vidence to support an adverse finding on an is sue for which it had the burden of proof, the appellant must demonstrate that the evidenc e conclusively established all vital facts in support of t he is sue. Dow Chem. C o. v. Francis , 46 S.W .3d 237, 241 (Tex. 2001). A party attempting to overc ome an adver se finding as a matter of law must surmount
two hurdles. Sterner v. Marathon Oil Co. , 767 S.W .2d 686, 690 (Tex. 1989). First, the rec ord must be examined for evidenc e that supports the finding , while ignor ing all evidenc e to the contra ry . Id.

10Second, if there is no evidenc e to support the finding , then the entire rec ord must be examined to see

if the contra

ry proposition is established as a matter of law. Id

. On l y if the contra ry position is conclusively established can we sustain the leg al sufficie ncy challeng e. There fore , none of t h e

rema i n i ng aff

irmative defe nses can support the judgme nt unless the rec ord conclusively demonstrates that the elements of at least one of the particula r aff irmative defe nses have been met.

Statu te of Limi tation s

O’L ear y contends that, as a m at t er of law, Fox’s claim is barr ed by the applicable four- y ear statute of limitations. See Tex. Civ. P rac . & Re m. Code Ann. § 16.051 (West 2008). A

cause of action for enfor ceme nt of deed restric tions acc rues upon brea ch of the restric tive covena nt. See Girsh v. St. John , 218 S. W

. 3 d 9 2 1 , 9 2 5 (Tex. App.—B eaumont 2007, no pet.). O’L ear y contends that his orig inal home, which was built in the 1960s, encr oache d upon the setbac ks
presc ribed by the deed restric tions. He further asser ts that when he enclose d his car port in 1988, it

cre ated an additional encr oachme nt. He there fore contends that the statute of limit ations for the 2 front setbac k violation beg an to run in the 1960s (construc tion of the orig inal house), the statute of

O’L ear y contends that other

fea tures of his prope rty , specific ally stone walls and fence s, 2 constitute encr oachme nts on the setbac k under the theory th at t h e t er m “structur e” as used in the deed restric tions encompa sses these things. W e conclude that this is an unrea sonably broad construction of the term “structur e” as used in the deed restric tions. See Bollier v. Austin Gurdwara Sahib, Inc. , Nos. 03-09-00313- CV & 03-09-00317- CV, 2010 WL 2698765, at *5 n.6 (Tex. App.—Austin J uly 9, 2010, pet. denied) (mem. op.) (def ining “building” as s y

n o ny mous with “structur e” and stating that “ [s] tructure usually implies considera ble siz e and emphasizes phy sical make- up with respec t to material and de sign” (empha sis in original)) ; see also De Nina v. Bammel Forest Civic Club, Inc. , 712 S.W .2d 195, 198 (Tex. App.—Houston [1st Di s t

. 1 9 8 6 , no pet.) (“Restric tive covena

nts are to be strictly construed ag ainst those wh o seek to restric t the use of proper ty , and all doubt must be resolve d in favor of the fre e use of

the prope rty .”) 11limit ations for the south side setbac k violation beg an to run in 1988 (enc losure of the car port), and the statute of limit ations for the north side setbac k beg an to run at some time pri o r t o Fox’s purcha se of his home (pre sence of HVAC unit). Ho we v er , o n ce a violation of a restric tive

covena nt has cea sed, the enfor cea bility of the restric tive coven an t i s renewed, and limit ations does not bar enfor ceme nt of any future violations. See Daniels v. B a lcones W oods Club, Inc. , No. 03-03-00310- CV, 2006 WL 263589, at *5 (Tex. App.—Austin Fe b. 2, 2006, pet. denied) (mem. op.); Schoenhals v. Clo s e , 451 S.W .2d 597, 599 (Tex. Civ. App.—Amar illo 1970, no writ) (l i m itations period revive d when violation of restric tive covena nt cea sed). Even if O’L ea ry ’s previous residenc e, including the HVAC unit and the enclose d g ara g e, violated the deed restric tions, that violation cea sed when the house was destroy ed by fi re i n 2007. The statute of limit ations applicable to the new vio l at i o n of the deed restric tions beg an to run in J anuar y 2010 when construction of the new house beg an. O’L ear y has failed to demon s t rate that Fox’s claim is, as a matter of la

w, bar red by limit ations.

Waiver O’L ear

y next contends that Fox’s claims are barr ed by waiver

. Waiver is define d as the intentional relinquishment of a known rig ht or inte n t i o n al conduct inconsistent with claiming that rig ht. Jernigan v. Langley , 111 S.W .3d 153, 156 (T ex . 2 0 0 3). Waiver can be established by

a party ’s express renunc i at i o n of a known rig ht or by silence or inaction for so long a period of time as to show an intent to y ield the known rig ht. Tenneco, Inc. v. E n terprise Prods. Co , 925 S.W .2d 640, 643 (Tex. 1996); Aguilar v. Segal , 167 S.W .3d 443, 451 (Tex. App.

— Ho u s t o n [14t h Dist.] 2005, pet. denied)

. Waiver is larg ely a matter of intent, and for implied waiver to be

12found throug h a party ’s actions, intent must be clearly demonstrated by the s urrounding fa ct s an d

circ umstances. Jernigan , 111 S.W .3d at 156.

O’L ear y arg ues that t h e evidenc e conclusively establishes that Fox waived

en fo rce ment of the deed restric tions beca use of the exis tence of a number of houses i n t h e neig hborhood that are located in place s that encr oach on the set b ac k re q u i rements of the deed restric tions. As an initial matter, we note that counsel for O’L ear y expressly stated at trial that he was “not seeking a waiver or a declara tion that this particula r s et of covenants i s waived as to the entire neig hborhood.” O’L ear y has there fore waived any defe nse based on an asser tion that the deed restric tions have been abandone d in their entirety

. Rather, the waiver issue is limit ed to whether the evidenc e at trial conclusively establishes that Fox voluntarily and intentionally relinquished his rig ht
to enfor ce the deed res t ri ct i o n s . S ee id. O’L ear

y asser ts that Fox has never taken any steps to enfor ce the deed restric tions ag ainst another person in the subdivision, despite the fac t that,

acc ording t o O’ L ea ry , sever al other proper ties violated the setbac k require ments. We note first, howeve r, that t he record does not conclusively establish the ex istence of widespre ad violations of the setbac k require ments in the neig hborhood. The rec ord includes the testimony of Donald Cummi ns, one of t h e o rig inal develope rs of the subdivision and a member of the Arc hitectura l C o n t ro l Commi ttee and Property Owner s’ C ommitt ee until 1976, by which ti me hous es had been built on all lots in the neig hborhood. Cummins t estified that the loca tion of eac h of the originally
constructe d houses was ap p ro v ed by the pertinent committee, and that to his knowledg e, any varia nces from the setbac k require ments wer e revie wed and approve d in writing

. Although O’L ear y

13attempted to introduce evidenc e of his own evalua tion of which houses in the neig hborhood violated

the setbac k require ments, the trial cour t refuse d to admit the evidence

. There was evidenc e admitted at trial that Fox was awa re that the corne r of one of his neig hbor’s houses encr oache d on the side setbac k. Fox’s awa rene ss and failure to act on one other possible violation of the deed restric tions is not, howeve r, suffic i ent to establish waiver

. See Jim Rutherford Invs., Inc. v. Terramar Beac h Cmty. Assoc. , 25 S.W .3d 845, 852 (Tex. App.—Houston [14t h Dist.] 2000, pet. denied)

. Moreove r, the evidenc e showed that the house at issue was orig inal construction. Acc ording ly , taking into account Cummins’s testimony , it is a reasona ble infer ence that a v ar i ance had been approve d by either the Arc hitectura l Control Commi ttee or the Property Owner s’ Commi ttee. And even if it wer e in violation of the deed restric tions, Fox would be barr ed by limit ations from taking any action to enf

orce the dee d restric tions in t hat ca se. Fox ’s fa ilure to
pursue a time-barr ed claim ag ainst another neig hbor is not conclusive proof of his intentional rig ht to relinquish his “rig ht” to enfor ce the deed r estrictions ag ainst O’L ear y .

Unclean Hands

Fina l l y , O’L ear

y arg ues that Fox is barr ed from pursuing his claim due to his own unclea n hands as evidenc ed by the fac t that his own house encr oache s on the side setbac k. O’L ear y contends that, under the doctrine of unclea n hands, a court may ref

use t o g rant equitable relief (in this case the injunctive relief Fox seeks) to a plaintiff who has been g uilty of unlawful or inequitable conduct reg arding the issue in dispute. See Lazy M Ranch v. TXI Operation, LP , 978 S.W .2d 678, 683 (Tex. App.—Austin 1998, pet. denied)

. I n deed restric tion case s, unclea n hands applies “whe n the plai n t i ff i s g uilty of the same actions of which the defe ndant is acc used.” Bollier v. Austin

14Gurdwara Sahib, Inc. , Nos. 03-09-00313- CV & 03-09-00317- CV, 2010 WL 2698765, at *7 (Tex.

App.—Austin J uly 9, 2010, pet. denied) (mem. op.). The evidenc e at t ri al does not conclusively establish that Fox’s house actua lly violates the deed restric tions. Fox’s ho u s e i s o rig inal construction. Whil e a corne r of Fox’s g ara g e is only 7.6 fee t from the proper ty line, the deed restric tions p er m i t a varia nce from the setbac k require ments that reduc es the side setbac k from 10 to 7.5 fee t to acc ommodate t ree s or t opog raphy

. Fox testified t hat due to the presence of l arg e
tree s on his proper

ty , he assumed that such a varia nce had been g iven when the house was orig inally
constructe d. And as discussed above, C u m m i n s testified that eac h of the houses orig inally
constructe d in the subdivision was revie wed by the Arc hitectura l Control Commi ttee or the Property Owner s’ Commi ttee to ensure their compliance with the deed restric tions or to revie w any varia nces there from, and that there was no orig inal cons t ru ct i o n built without committee approva l. This testimony g ives rise to a rea sonable infere nce that a varia nce had been g rante d to the orig inal owner of F ox ’s house. Thus, the r ecor d does not conc lusively establish that Fox’s claim i s barr ed by his own unclea

n hands. 3
For the fore g oing rea sons, we sustain Fox’s first appellate issue and o v errule O’L ear y ’s crosspoints rela

ted to the aff

irmative defe nses of limit ations, waiver , and unclea n hands.
Request for Inju nctive Relief

I n his second appe llate issue, Fox contends that the trial c ourt abused its discre tion “in deny ing Fo x a perma nent injunction.” Howeve r, beca use it conclude d that Fox’s claim was

I n addition, it is problematic whether O’L ear y could, as a result of his own unclea n hands, 3 avail himself of a

ny equitable doc trine. 15b ar red by lache s, the trial court did not rea ch the issue of whether he was otherwise en t i t l ed t o

injunctive relief and, if so, the nature of any such relief

. I n his live pleading , Fox alleg ed that in the
event O’L ear

y wer e permitted to continue to violate the setbac k require ments, he would be require d
to incur costs to improve his proper ty to restore some enjoy

ment to it. The trial court did not balanc e the equities and enter finding s of fac t rela ting to whether the injunctive relief Fox seeks is available under the circ umstances, nor wer e there fac t finding s reg arding whether , as some evidenc e adduce d
at trial sug g ests, equitable relief short of requiring strict compliance with the deed restric tions may be appropr iate. To deter

mine whether enfor cing the restric tive covena nts would be inequitable
t owar d a particula

r proper ty owner , the trial court must weig h the equities favor ing that proper ty

owner ag ainst the equities fa voring the other property owner s who acquired their proper ty subject
to those restric tions. W

infield v. L amoyne , No. 05-09-01851-CV, 1995 WL 634161, at * 1 3 (T ex. App.—Dallas Oct. 16, 1995, writ dism’d) (mem. op.). We there fore rema nd the cause t o the t rial court in orde r to provide it with the opportuni ty to balance the equities and ma ke a de termination, in the first instance, as to whether Fox is entitled to injunctive relief

. We overr

ule Fox’s second issue. Be cause we are rema nding the cause to the trial court, we need not addre ss Fox’s third issue rela ted to his request for

attorney s’ fe es.

CONCLUSION The trial court err ed in concluding that Fox’s claim was barr ed by lache s and, having done so, did not make finding s of fac t reg arding Fox’s reque st for injunctive relief

. Consequently ,

we r ever se the trial c ourt’s judg ment and re mand the ca use for further proce eding s.

16_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ J . Woodfin J ones, Chief Just ice Be fore Chief J ustice Jones, J ustices Pemberton a nd Rose Reverse d and Remande d Filed: Mar ch 14, 2012

17