George A. Moran Jr. and Susan K. Moran v. Memorial Point Property Owners Association, Inc., 410 S.W.3d 397

Moran, Jr. and Moran own two lots in Memorial Point, subject to restrictive covenants including a 25-foot building set-back from Edgewater Drive as shown on the plat.
The plat indicates Edgewater Drive is 60 feet wide; the paved area is only about 20 feet wide, but the set-back reference is to the platted street, not the paved edges.
The Association approved Moran's 2007 proposal to build a fence just inside the set-back line, based on a drawing Moran provided that reflected the plat and a 25-foot set-back from the street edge.
A Association board member observed the fence posts too close to the street; Moran replied that the set-back line was 25 feet from the center of the road, not from the edge.
The fence was built forward of the set-back line as recorded on the plat; the Association sued to enforce the covenant and Morans sought to defend on grounds of abandonment, waiver, or ambiguity.
The trial court found in favor of the Association, ordered removal of the portion of the fence forward of the set-back line, and awarded attorney’s fees; the Morans appealed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Is the covenant ambiguous regarding the set-back line?	Moran contends ambiguity undermines enforcement.	Moran argues ambiguity favors Morans and weakens enforcement.	Covenant unambiguous; enforced as written.
Was the covenant abandoned or its enforcement waived by prior violations?	Morans show numerous violations to show waiver/abandonment.	Association treated violations as minor and not pervasive enough to waive.	Not abandoned or waived; violations too few/severe to support waiver.
Did the trial court abuse its discretion by admitting undisclosed witness testimony?	Association used undisclosed expert testimony without proper designation.	Challenge to designation preserved on appeal.	Issue not preserved for review; no reversible error.

MBM Fin. Corp. v. Woodlands Operating Co., L.P., 292 S.W.3d 660 (Tex. 2009) (standard of review for nonjury trial findings)
Catalina v. Blasdel, 881 S.W.2d 295 (Tex. 1994) (standard of review; legal sufficiency framework)
City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) (evidentiary sufficiency; standards for appellate review)
Am. Golf Corp. v. Colburn, 65 S.W.3d 277 (Tex. App.—Houston [14th Dist.] 2001) (covenant interpretation; ambiguity standard)
Pilarcik v. Emmons, 966 S.W.2d 474 (Tex. 1998) (ambiguity assessed by examining covenants as a whole)
Finkelstein v. Southampton Civic Club, 675 S.W.2d 271 (Tex. App.—Houston [1st Dist.] 1984) (abandonment/waiver analysis factors)
Witmer v. McCarty, 566 S.W.2d 102 (Tex. Civ. App.—Beaumont 1978) (covenant purposes; restrictiveness and waiver analysis)
Tanglewood Homes Ass’n, Inc. v. Henke, 728 S.W.2d 39 (Tex. App.—Beaumont 1982) (violation rate not sufficient to prove waiver)
Stephenson v. Perlitz, 537 S.W.2d 287 (Tex. Civ. App.—Beaumont 1976) (no acquiescence when violations are minor in proportion)
Uptegraph v. Sandalwood Civic Club, 312 S.W.3d 918 (Tex. App.—Houston [1st Dist.] 2010) (violation rates in large subdivisions not sufficient for waiver)