Aufman, et al v. Government of Japan

United States Court of Appeals
Fifth Circuit
F I L E D
September 20, 2006
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 05-20986
Summary Calendar
_______________
JOSEPH A. AUFMAN; JUDITH A. AUFMAN,
Plaintiffs-
Counter Defendants-
Appellants,
VERSUS
GOVERNMENT OF JAPAN,
Defendant-
Counter Claimant-
Appellee.
_________________________
Appeals from the United States District Court
for the Southern District of Texas
m 4:04-CV-3449
______________________________
Before SMITH, GARZA, and PRADO,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Joseph and Judith Aufman appeal a sum-
mary judgment for defendant and counter
claimant the Government of Japan. The Auf-
mans filed this matter in state court seeking a
declaratory judgment that a deed restriction
* Pursuant to 5TH CIR. R. 47.5, the court has deter-
mined that this opinion should not be published and is
not precedent except under the limited circumstances
(continued...)
*(...continued)
set forth in 5TH CIR. R. 47.5.4

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prohibiting construction of a single family resi-
dence on Lot 16 of the Farnham Park subdivi-
sion of the City of Piney Point Village in Har-
ris County, Texas, is unenforceable. The Gov-
ernment of Japan removed to federal court
pursuant to 28 U.S.C. § 1441(d).
The district court held that (i) the restrictive
covenant is valid, binding, and not an improper
amendment of the Farnham Park restriction;
(ii) the Government of Japan is entitled to en-
force the covenant; (iii) the covenant is also
enforceable as an equitable servitude; (iv) a
purported release of the covenant lacked suf-
ficient clarity to be enforceable and was not
supported by consideration; and (v) the Gov-
ernment of Japan is not estopped from enforc-
ing the covenant. Finding no error, we affirm.
I.
In 1972, James Goette acquired Lots 16
and 17 in the Farnham Park subdivision and
conveyed Lot 16 under a general warranty
deed (the “Goette deed”) to William and Nor-
ma Bondesen, who had purchased adjoining
Lot 15. This deed was expressly subject to the
Farnham Park Subdivision deed restrictions
(“FP Restrictions”).
The FP Restrictions are the embodiment of
a uniform plan of development applying to the
thirty lots of Farnham Park for the purpose of
“improvement, development, and sale of the
lots and building sites in Farnham, for the ben-
efit of the present and future owners thereof .
. . .” According to paragraph 6,
[t]he owner or owners of adjoining lots
may consolidate the lots into one building
site, or may resubdivide such lots into two
or more building sites, provided the resub-
division does not result in more building
sites than the number of platted lots which
are resubdivided and each resulting building
site is at least as large as the smallest of the
platted lots which are re-subdivided. Each
resulting building site shall be treated as a
lot for the purposes of these restrictions
and the provisions of this instrument, unless
a contrary intent is indicated.
To amend the FP Restrictions, an instrument
must be filed in the county clerk’s office
signed by at least 75% of the owners of the
lots in the subdivision.
In addition to the FP Restrictions, the
Goete deed also included a restrictive cove-
nant limiting the use of lot 16. This covenant,
clause 12 of the Goette deed, states that
“Grantees [the Bondesens] agree for them-
selves and their successors in title that Lots 15
and 16, Block one (1), Farnham Park, Harris
County, Texas will be used for no more than
one single family dwelling and appurtenances
thereto.” This restrictive covenant was exe-
cuted for the benefit of Lot 17 to reduce the
density of housing in the area covered by the
adjoining Lots 15 and 16. When the Goette
deed was executed, and at all times since, a
single-family dwelling has existed on Lot 15,
leaving Lot 16 restricted and greatly enhancing
the desirability of Lot 17.
In 1975, after building a house on Lot 17,
Goette sold the lot and its residence to the
Government of Japan, which has since used it
as the residence of its Consul-General. In
1992 the Bondensens made a written request
that the Consul-General sign a “Waiver of Re-
striction” that would release the property from
restriction 12. Such a release would permit
the Bondesens to separate the two lots and
build a single-family dwelling on Lot 16.
The Consul-General declined to sign the
waiver, explaining in a letter that he “had re-
ceived instruction from the home government

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that it was not in a position to consent to the
‘Waiver of Restriction.’” Though the “Waiver
of Restriction” acknowledged that Goette had
no present interest in Lots 16 and 17 and that
Restriction 12 had only inured to his benefit as
owner of lot 17, the Bondesens then obtained
from Goette and filed a “Release” that pur-
ported to “release forever [the Bondesens] and
their successors in title to Lots 15 and 16 . . .
from any obligation whatsoever to said item
12.”
Six years later, the Bondesens again re-
quested that the Consul-General release the
property from restriction 12. The request was
by a more informal letter that did not specifi-
cally mention restriction 12, but merely stated
that the Bondesens wished to “re-plat” the
lots. It contained no request for a release or
waiver of the covenant, no expression of an in-
tent to re-subdivide lots 15 and 16, and no
expression of an intent to build a residence on
Lot 16 in contravention of the covenant. The
only reason the letter gave was that the Con-
sul-General was “[the Bondesans] closest nei-
ghbor on [their] east side.” The Consul-Gen-
eral acquiesced to the “re-plat.”
About nine years after the Government of
Japan first declined to waive its rights under
Restriction 12, the Bondesans sold lot 16 to
Stonebridge Homes, Inc. (“Stonebridge”).
The general warranty deed to Stonebridge
made no reference to Restriction No. 12 con-
tained in the Goette deed. Stonebridge in turn
sold Lot 16 to the Aufmans by general war-
ranty deed on October 3, 2003, “subject to any
and all . . . valid restrictions . . . if any, to the
extent, but only to the extent that they are re-
flected by the records of the Office of the
County Clerk . . . .”
The Aufmans intended to build a house on
Lot 16 and have asserted that their plans were
approved by Piney Point Village and the Farn-
ham Park Homeowners’ Association. When
they began clearing Lot 16 in preparation for
construction of a single-family dwelling, coun-
sel for the Government of Japan notified them
that construction of a residence on Lot 16
would violate Restriction No. 12 in the Goette
deed, which limited the use of Lots 15 and 16
together to no more than one single family
dwelling, and that the Government of Japan, as
record owner of Lot 17, insisted that the Auf-
mans comply with the restriction.
The Aufmans sued for a declaratory judg-
ment “interpreting the deeds and the [Goette
1992] Release . . . and decreeing that Plaintiffs
are free to construct a residence on Lot 16,
and that any restrictions created with respect
to Lot 16 by the deed [from Goette] are
ineffective and unenforceable or have been
released by virtue of the [Goette 1992] Re-
lease.” The district court held in favor of the
Government of Japan bydenying the Aufmans’
motion for summary judgment and granting
the Government of Japan’s motion for sum-
mary judgment.
II.
We review a summary judgment de novo,
applying the same standard of review as did
the district court. Morris v. Powell, 449 F.3d
682, 684 (5th Cir. 2005) (citing BellSouth
Telecomm., Inc. v. Johnson Bros. Group, 106
F.3d 119, 122 (5th Cir. 1997)). All justifiable
inferences to be drawn from the underlying
facts must be viewed in the light most favor-
able to the nonmoving party. Minter v. Great
Am. Ins. Co., 423 F.3d 460, 465 (5th Cir.
2005). Summary judgment is appropriate
where, after such inferences have been made,
the record demonstrates that there is no issue
of material fact and that the moving party is
entitled to judgment as a matter of law. Mar-
tinez v. Bally’s La., Inc., 244 F.3d 474, 476

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(5th Cir. 2001). The district court granted
summary judgment on the ground that, as a
matter of law, restriction No. 12 of the Goette
deed is valid and enforceable against the Auf-
mans as a covenant running with the land or as
an equitable servitude on Lot 16, with Lot 17
being the dominant estate.
III.
The Aufmans contend that enforcement of
restriction 12 would violate clause 6 of the
original FP deed restrictions, so restriction 12
should be declared invalid. They argue that
paragraph 1 of the FP deed restrictions permits
the construction of one single-family residence
on each lot or building site in Farnham Park.
That paragraph states that “Lots and building
sites in Farnham shall be used for residential
purposes only, and no buildings shall be placed
on any such lot or building site except one
single family residence . . . .”
Thus, according to the Aufmans, a restric-
tive covenant preventing the erection of a sin-
gle-family dwelling on any Farnham Park
building site would violate the permission to
do so granted by the FP restrictions. The Auf-
mans then reason that when the Bondesens
sold Lot 16 to the Aufmans’ predecessors in
title, they effectively re-subdivided the two
lots, thereby creating two separate “building
sites.’”’ They conclude that the creation of
two separate building sites by this sale abro-
gated restriction 12 because the FP restrictions
require that each be permitted to contain a sin-
gle-family dwelling.
“A developer generally has the unilateral
right to impose on its subdivision, in the first
instance, any restrictions that it chooses . . . .”
City of Pasadena v. Gennedy, 125 S.W.3d
687, 689 (Tex. App.SSHouston [1st Dist.]
2003, pet. denied). Neither party disputes that
the restrictive covenants in the original FP
restrictions are valid. Thus, for enforcement
of restriction 12 of the Goette deed to be
valid, it must comply with the requirements of
the FP deed restrictions. Though courts do
not favor covenants restricting the free use of
land, such restrictions will be enforced where
they are confined to a lawful purpose and are
clearly worded. Wilmoth v. Wilcox, 734
S.W.2d 656, 657 (Tex. 1987) (citing Davis v.
Huey, 620 S.W.2d 561 (Tex. 1981)).
“All doubts must be resolved in favor of the
free and unrestricted use of the premises, and
the restrictive clause must be construed strictly
against the party seeking to enforce it. Id.
(citing Brown v. Wehner, 610 S.W.2d 168,
170 (Tex. App.SSHouston [1st Dist.] 1980,
writ ref’d n.r.e)). Furthermore, words used in
the covenant may not be enlarged, extended,
stretched, or changed by construction; they
must be given their commonly accepted mean-
ing. Id. (citing Curb v. Benson, 564 S.W.2d
432, 433 (Tex. App.SSAustin 1978, writ ref’d
n.r.e)). “[I]n construing a restrictive covenant,
the court’s primary task is to determine the in-
tent of its framers.” Dyegard Land P’ship v.
Hoover, 39 S.W.3d 300, 308 (Tex.
App.SSFort Worth 2001, no pet.) (citing Wil-
moth, 734 S.W.2d at 657).
We must ascertain the intent of the original
FP deed restrictions to decide whether en-
forcement of restriction 12 of the Goette deed
would violate them. It is evident that neigh-
borhood developers imposed these restrictions
to facilitate the creation of an ordered, residen-
tial community. Many of the FP restrictions
work to limit the housing density of the neigh-
borhood and to homogenize the appearance of
the dwellings within it.
Paragraph 12 does not offend either of
these purposes. The Aufmans point out that
the FP restrictions state that they are in place

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to “create and carry out a uniform plan for the
improvement, development, and sale of lots
and building sites in Farnham, for the benefit
of the present and future owners thereof.”
That language encouraging development, how-
ever, does not in and of itself imply that the
neighborhood developers intended that no lot
be encumbered by a restriction such as number
12. To the contrary, property owners are
explicitly given the right to consolidate mul-
tiple lots by clause 6 of the FP restrictions,
thereby limiting the use of some of the lots.
The language the Aufmans rely on in para-
graph 1 of the FP restrictions is designed to
ensure that property in Farnham Park be used
only for residential purposes, not to guarantee
a right to build on each lot or building site.
We agree with the district court that, even
though the Bondesens’ sale of Lot 16 amount-
ed to a “re-subdivision” of Lots 15 and 16 into
two “building sites,” the FP Restrictions do
not require that the Aufmans build or be able
to build a residence on Lot 16. We therefore
do not agree with the Aufman’s contention
that the sale of Lot 16 by the Bondesens abro-
gated the restrictive covenant imposed on the
property by restriction 12 of the Goette deed.
IV.
The Aufmans aver that even if restriction
12 does not violate clause 6 of the FP restric-
tions, it is invalid as an improper amendment
of those restrictions. The district court held
that the Farnham Park restrictions do not spe-
cify that a lot owner must be able to build a
residence on a particular lot or building site,
and therefore a covenant preventing the build-
ing of a lot on a particular building site is not
an amendment of the FP restrictions.
As stated in their first contention, the Auf-
mans argue that paragraph 1 of the FP restric-
tions does permit the construction of a resi-
dence on each building site, and therefore re-
striction 12 acts as an amendment to the orig-
inal FP restrictions. Furthermore, because re-
striction 12 limits the combined use of Lots 15
and 16 to no more than one single-family
dwelling, and Clause 6 of the FP restrictions
expressly permits consolidated lots to be re-
subdivided into two or more separate building
sites, the Aufmans aver that enforcement of
the Goette covenant permanently binds the
two lots together, preventing the separation
otherwise permitted by (and therefore amend-
ing) Clause 6.
For the original restrictive covenants gov-
erning a subdivision to be amended, three con-
ditions must be met. VICC Homeowners’
Ass’n, Inc. v. Los Campeones, Inc., 143
S.W.3d 832, 836 (Tex. App.—Corpus Christi
2004, no pet.). First, the original instrument
creating the restrictive covenants must ex-
pressly grant the right to amend those cove-
nants. Id. (citing Dyegard, 39 S.W.3d at 313).
Second, any amendment may only correct, im-
prove, or reform the agreement rather than
completely destroy it. Id. (citing Hanchett v.
Sunnyside Civic League, 696 S.W.2d 613, 615
(Tex. App.—Houston [14th Dist.] 1985, writ
ref’d n.r.e.)). Finally, “the amendment may
not be illegal or against public policy.” Id.
(citing Miller v. Sandvick, 921 S.W.2d 517,
521 (Tex. App.—Amarillo 1996, writ de-
nied)).
The Aufmans argue that this case is analo-
gous to Youssefzadeh v. Brown, 131 S.W.3d
641, 644-45 (Tex. App.—Texarkana 2004, no
pet.), in which a unilateral amendment of de-
veloper-imposed restrictive covenants did not
utilize the provided amendment process and
was therefore of “no force and effect.” The
Aufmans state that restriction 12 of the Goette
deed, like the unilateral amendment in Yous-
sefzadeh, amends the FP Restrictions by pre-

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venting the re-subdivision of lots 15 and 16 as
permitted by Clause 6 of the FP Restrictions.
It thereby prohibits the construction of a single
family dwelling on a building site that, as
stated, the Aufmans believe the FP restrictions
to permit. Therefore, because it was not re-
corded as required by the designated FP
amendment process, it must be declared in-
valid.
We agree, however, with the district court
that the owner’s unilateral attempt in Yous-
sefzadeh “to change the characterization of [its
particular block] from commercial use to part
commercial and part residential use is distin-
guishable from the instant case. Id. at 643.
Clause 12 of the Goette deed functions within
the scope of the FP Restrictions, a fact that the
district court aptly points out. We find no er-
ror in that court’s reasoning that “because the
combination of the two lots for use as one
dwelling site is in harmony with what is ex-
pressly declared as possible in the FP Restric-
tions, the individual owners are free to impose
a restriction such as Restriction No. 12 in the
[Goette] deed.”
The two lots can still be subdivided in
accord with clause 6 of the FP restrictions, but
this must be done in compliance with the
means by which the lots were originally com-
bined. Therefore, the district court is correct
that clause 12 of the Goette deed is not an im-
proper amendment of the FP restrictions.
V.
The Aufmans reason that the Government
of Japan is estopped from enforcing restriction
12 of the Goette deed based on its Consul-
General’s approvalof the Bondesens’ letter re-
questing a “re-plat.” The Aufmans contend
that the approval of the “re-plat” constituted a
release of restriction 12 and that the Bonde-
sens detrimentally relied on the Consul-Gen-
eral’s acquiescence to the “re-plat” by entering
into a settlement agreement with the City of
Piney Point vacating the re-platted combina-
tion of Lots 15 and 16.
Release agreements “must be supported by
valid consideration,” such as “a benefit to the
releasor or a detriment to the person released.”
Tamez v. Southwestern Motor Trans., Inc.,
155 S.W.3d 564, 571 (Tex. App.—San
Antonio 2004, no pet.). The doctrine of
estoppel may be invoked where the conduct of
one of the parties has induced action in reli-
ance on it and where it would operate as a
fraud to allow the party later to disavow the
conduct. Johnson v. Structured Asset Servs.,
LLC, 148 S.W.3d 711, 721 (Tex.
App.—Dallas 2004, no pet.). The doctrine of
quasi estoppel does not require that a repre-
sentation be made, nor does it require reliance
by the party seeking to assert it. El Paso Nat’l
Bank v. Southwest Numismatic Inv. Group,
Ltd., 548 S.W.2d 942, 948 (Tex. Civ.
App.—El Paso 1977, no writ). This doctrine
precludes a party from asserting, to another’s
disadvantage, a right inconsistent with a posi-
tion it has previously taken. Quasi estoppel
applies where it would be unconscionable to
allow a person to maintain a position inconsis-
tent with one to which it has already acqui-
esced. Steubner Realty 19 v. Cravens Road
88, 817 S.W.2d 160, 164 (Tex. App.—Hou-
ston [14th Dist.] 1991, no writ).
The district court properly concluded that
no consideration for the claimed release has
been established. Furthermore, neither doc-
trine of estoppel is applicable, because the
Consul-General’s conduct does not constitute
a representation of, or an acquiescence in, a
release of Restriction No. 12. The letter noted
that the Bondesens’ property had been dam-
aged by flood waters and that they were un-
sure what course of action to take as to the

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structures on Lots 15 and 16. But the letter
lacked any indication of an intent to build a
dwelling on Lot 16 while maintaining a dwell-
ing on Lot 15, and it failed entirely to mention
Restriction No. 12. By agreeing to the “re-
plat,” the Consul-General did not acquiesce in
a release of this restriction, and therefore the
Government of Japan’s act of seeking its en-
forcement is not an inconsistent act or repre-
sentation.
AFFIRMED.

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