Indian Beach Prop. Owners' Ass'n v. Linden

• Decision Date: 22 March 2007
• Docket Number: No. 01-05-01116-CV.,01-05-01116-CV.
• Citation: 222 S.W.3d 682
• Parties: INDIAN BEACH PROPERTY OWNERS' ASSOCIATION, Appellant, v. Mary C. LINDEN and B.J. Linden, Appellees.
• Court: Texas Court of Appeals

222 S.W.3d 682

INDIAN BEACH PROPERTY OWNERS' ASSOCIATION, Appellant, v. Mary C. LINDEN and B.J. Linden, Appellees.

No. 01-05-01116-CV.

Court of Appeals of Texas, Houston (1st Dist.).

March 22, 2007.

Rehearing Overruled May 15, 2007.

Michael L. Wilson, Rider & Wilson, Galveston, TX, for Appellant.

J. Michael Fieglein, Law Office of J. Michael Fieglein, Galveston, TX, for Appellees.

Panel consists of Chief Justice RADACK and Justices JENNINGS and BLAND.

OPINION

JANE BLAND, Justice.

This is a lawsuit over a chain-link fence. Appellant Indian Beach Property Owners' Association ("Indian") appeals a judgment entered in favor of appellees Mary C. Linden ("Linden") and B.J. Linden ("B.J."). In thirty-five issues, Indian challenges the trial court's failure to enter a permanent injunction against Linden and B.J., the legal and factual sufficiency of the evidence supporting the jury's finding that Linden and B.J.'s construction of the chain-link fence was not a wrongful act, the denial of Indian's request for attorney's fees, the propriety of submitting certain jury questions and their form, the legal and factual sufficiency of the evidence to support the jury's findings, the legal basis for the trial court's declaratory judgment, and the legal basis for the trial court's award of attorney's fees to Linden and B.J. We conclude that the trial court erred in entering a declaratory judgment stating that the deed restrictions applicable to Linden's property do not prohibit the use of chain-link fence as a fencing material, and stating that the use of chain-link fence on Linden's property is in harmony with the existing structures in the Indian Beach subdivision. We therefore modify the trial court's judgment and delete paragraphs one and two. We affirm the remainder of the trial court's judgment.

Background

Linden owns a lot in the Indian Beach subdivision on Galveston Island that is subject to certain covenants and restrictions contained in the deed. B.J. is Linden's ex-husband. B.J. has no ownership interest in the property at issue in this case, but he helps Linden manage the property and was extensively involved in the sequence of events leading to this litigation. Indian is the entity responsible for enforcing deed restrictions in the Indian Beach subdivision. Paragraph three of the deed restrictions on Linden's property provides as follows:

3. Architectural Control and Construction Time. No Building, fence, wall, pier, swimming pool, play ground equipment, outdoor cooking or eating facility of permanent nature or other structure of any kind shall be commenced, erected, or maintained upon any lot in the Subdivision, nor shall any exterior addition or change or alteration of the exterior be made until the plans and specifications showing the nature, kind, shape, height, materials and location of the same shall have been submitted to and approved in writing by the Architectural Control Committee (herein sometimes called "the Committee") composed of three or more representatives from time to time appointed by Developer. . . . Approval by the Committee shall be granted or withheld based upon [1] compliance with the provisions of this instrument, [2] quality of materials, [3] harmony of external design with the existing and proposed structures, [4] location with respect to topographical and finished grade elevation, and [5] such other relevant considerations as the Committee may, in the exercise of its sole discretion, determine to be of significance in such determination. Each application made for architectural control approval shall be accompanied by a fee of $150.00 to defray expenses of the Committee and by plans and specifications of all proposed walls, drives, curb cuts, structures, septic tanks, drain fields, and other matters relevant to architectural approval. If the plans and specifications are approved by the Committee, a Certificate of Compliance shall be issued authorizing construction of the proposed improvements in accordance with the plans and specifications so approved. In the event the Committee fails to approve or disapprove the plans within forty-five (45) days after same have been submitted to it, approval will be presumed and this paragraph will be deemed to have been fully complied with.

On February 25, 2004, Linden submitted a formal application to the Architectural Control Committee, hoping to obtain the Committee's approval to construct a chain-link fence around the perimeter of her property. Susan Gonzales, an agent of Indian, called Linden and B.J. on March 15, 2004, and informed them that the Committee had denied Linden's application. B.J. and Linden believed that the Committee had improperly denied the application because Gonzales referenced a setback provision in the deed restrictions that was not applicable to Linden's property as one of the reasons for the denial. Gonzales suggested that Linden reapply and express her contentions to the Committee. Gonzales told B.J. that a letter explaining Linden's position would be a sufficient reapplication. During that discussion, Gonzales emphasized that the Committee had another forty-five days to act on the new application. B.J. submitted Linden's reapplication letter on March 15, 2004 and Gonzales received it the same day. Indian took no action with regard to Linden's reapplication within the next forty-five days. On May 5, 2004, Linden and B.J. sent a letter to Indian advising it that, according to paragraph three of the deed restrictions, the Architectural Control Committee was presumed to have approved Linden's chain-link fence, and construction of the fence would commence immediately. Linden and B.J. completed construction of the fence before the end of May 2004.

Indian then sued Linden and B.J., asserting that they had violated the deed restrictions by building the fence without the approval of the Architectural Control Committee. Indian sought to permanently enjoin Linden and B.J. from building a chain-link fence on Linden's property, and an order mandating that Linden and B.J. remove the existing fence. Indian also sought its attorney's fees. Linden and B.J. answered, specifically denying that they had violated the deed restrictions. Linden and B.J. also counterclaimed, seeking a declaratory judgment that their construction of the fence was in compliance with the deed restrictions applicable to Linden's property. Linden and B.J. sought attorney's fees as well.

At trial, the issues upon which Linden and B.J. sought declaratory judgment were expanded to include a determination of whether the deed restrictions prohibit chain-link as an allowable fence material, and whether the chain-link fence on Linden's property is in harmony with existing structures in the subdivision. The jury returned a verdict in favor of Linden and B.J., and the trial court entered a judgment on the verdict. Indian appeals.

Permanent Injunction

In its first, second, and third issues, Indian contends (1) the trial court abused its discretion in failing to grant a permanent injunction in favor of Indian mandating that Linden remove her chain-link fence, (2) the trial court erred in ordering that Indian take nothing, and (3) the trial court erred in finding that the equities in favor of Indian did not outweigh the equities in favor of Linden, and that equitable relief in favor of Indian was not expedient, necessary, or proper.

Injunctive relief is appropriate upon a showing of the following elements: (1) the existence of a wrongful act, (2) the existence of imminent harm, (3) the existence of irreparable injury, and (4) the absence of an adequate remedy at law. Jim Rutherford Invs., Inc. v. Terramar Beach Cmty. Ass'n, 25 S.W.3d 845, 849 (Tex.App.-Houston [14th Dist.] 2000, pet. denied). "Because an injunction is an equitable remedy, a trial court weighs the respective conveniences and hardships of the parties and balances the equities." Computek Computer & Office Supplies, Inc. v. Walton, 156 S.W.3d 217, 220 (Tex. App.-Dallas 2005, no pet.); Triantaphyllis v. Gamble, 93 S.W.3d 398, 401-02 (Tex. App.-Houston [14th Dist.] 2002, pet. denied); see also State v. Tex. Pet Foods, Inc., 591 S.W.2d 800, 803 (Tex.1979) ("The jury does not determine the expediency, necessity, or propriety of equitable relief. . . . The determination of whether to grant an injunction based upon the ultimate issues of fact found by the jury is for the trial court, exercising chancery powers, and not the jury."). A party must substantially violate a deed restriction before the trial court may issue a permanent injunction. See Tien Tao Ass'n v. Kingsbridge Park Cmty. Ass'n, Inc., 953 S.W.2d 525, 529-30 (Tex.App.-Houston [1st Dist.] 1997, no pet.).

We review a trial court's ruling on applications for permanent injunctions for an abuse of discretion. Operation Rescue-Nat'l v. Planned Parenthood of Houston Se. Tex., Inc., 975 S.W.2d 546, 560 (Tex.1998). An abuse of discretion occurs if the trial court (1) acts arbitrarily and unreasonably, without reference to guiding rules or principles, or (2) misapplies the law to the established facts of the case. Butler v. Arrow Mirror & Glass, Inc., 51 S.W.3d 787, 791 (Tex.App.-Houston [1st Dist.] 2001, no pet.). "The trial court does not abuse its discretion when its decision is based on conflicting evidence and some evidence in the record reasonably supports the trial court's decision." Triantaphyllis, 93 S.W.3d at 402; see also Davis v. Huey, 571 S.W.2d 859, 862 (Tex.1978). A clear abuse of discretion arises only when the trial court's decision is not supported by some evidence of substantial and probative character. Envoy Med. Sys., L.L.C. v. State, 108 S.W.3d 333, 335 (Tex.App.-Austin 2003, no pet.). A party seeking an injunction has the burden of showing that a clear equity demands the injunction. Christensen v. Integrity Ins. Co., 719 S.W.2d 161, 163 (Tex.1986); Bridas Corp. v. Unocal Corp., 16 S.W.3d 887, 890 (Tex. App.-Houston [14th Dist.] ...