Aluminum Co. of America v. Kohutek

• Decision Date: 26 March 1970
• Docket Number: No. 524,524
• Citation: 455 S.W.2d 789
• Parties: ALUMINUM COMPANY OF AMERICA, Appellant, v. Albert W. KOHUTEK, Appellee.
• Court: Texas Court of Appeals

Page 789

455 S.W.2d 789

ALUMINUM COMPANY OF AMERICA, Appellant, v. Albert W. KOHUTEK, Appellee.

No. 524.

Court of Civil Appeals of Texas Corpus Christi.

March 26, 1970.

Rehearing Denied June 25, 1970.

Vinson, Elkins, Searls & Connally, John B . Holstead, III, Houston, for appellant.

Cullen, Edwards, Williams & Stevenson, Donald A. Edwards, Victoria, for appellee.

OPINION

SHARPE, Justice.

This suit was brought by appellant, a corporation, sometimes hereafter 'Alcoa' to permanently enjoin appellee Kohutek from parking, maintaining, improving, residing in, using or occupying a trailer house (or mobile home) on a 2.5 acre tract of land in Port Lavaca, Texas, on the ground that trailer house on the property violated a restrictive covenant in favor of appellant which was included in appellee's deed. After jury trial, the lower court rendered judgment based on the verdict that appellant take nothing by its suit.

Calhoun Development Company, a wholly owned subsidiary of appellant, originally organized, restricted and platted the Lynnhaven subdivision in Port Lavaca, Texas. Subsequently, Calhoun Development Company was dissolved and Alcoa acquired title to all unsold tracts in Lynnhaven. The land within the boundaries of the subdivision was divided into some 250 residential lots and several acreage tracts. On June 1, 1949, Calhoun Development filed of record a plat of Lynnhaven subdivision. As a part of the plan or scheme for the development of Lynnhaven as a first class residential area for management employees of Alcoa a detailed set of restrictions on the use of the residential lots was filed of record along with the plat of the subdivision. Paragraph 8 of such restrictions provides in part:

'No trailer * * * shall at any time be used as a residence, temporarily or permanently, nor shall any structure of a temporary character be used as a residence.'

The acreage lots in the subdivision were not subject to that specific restriction but, as is material to this case, to a different deed restriction now to be discussed. On May 3, 1962, Alcoa conveyed a 2.5 acre tract in Lynnhaven to J. W. Linville, Jr. subject to a deed restriction reading as follows:

'It is a condition of this conveyance that until ten (10) years have elapsed from the date hereof, no building or other improvement shall be placed, constructed, or built upon the land hereby conveyed unless plans and specifications for the same have been submitted to Grantor and Grantor has given its written approval of the same; by acceptance of this deed Grantee agrees for himself, his heirs and assigns that the condition just stated shall be a covenant running with the land, which shall be faithfully observed by Grantee, his heirs and assigns.'

All acreage tracts located in Lynnhaven which have been sold by Alcoa were subject to a similar deed restriction.

On March 3, 1969, Kohutek acquired title to the said 2.5 acre tract by deed from Linville which adopted the Alcoa restriction last above set out. Prior to securing that deed and without obtaining Alcoa's written approval, Kohutek parked a trailer house on the property and with his family began to reside therein. On April 14, 1969, Alcoa filed suit against Kohutek to enforce the deed restriction and to enjoin Kohutek from parking, maintaining, improving, residing in or otherwise using or occupying as a residence the trailer house located on the 2.5 acre tract in Lynnhaven. Kohutek answered and pleaded that an Alcoa employee, G. A. Rhoades, verbally consented to placing of the trailer house upon the land; and, therefore, Alcoa was estopped from securing the injunction it seeks; and that Alcoa had waived its claim to enforce the covenant or restriction. Kohutek further pleaded that enforcement of the deed restriction would be '* * * discriminatory and unlawful.'

In response to seven special issues the jury found in substance as follows: (1) The action of Kohutek in locating his trailer house on the land in question without securing Alcoa's written consent constitutes a distinct and substantial breach of the restrictive covenant in question. (2) Alcoa acted arbitrarily or capriciously in refusing to consent in writing to Kohutek maintaining a trailer house as a residence on the land in question. (3) On February 19, 1969, Rhoades falsely represented to Kohutek that Alcoa consented to Kohutek placing a trailer house on the land in question. (4) At the time Rhoades represented to Kohutek that Alcoa consented to Kohutek placing a trailer house on the land in question Rhoades knew that Alcoa had not so consented. (5) Kohutek did not have knowledge or the means of determining that Alcoa would not consent to his placing a trailer house on the land in question. (6) Rhoades represented to Kohutek that Alcoa consented to the placing of a trailer house on the land in question with the intention that such representation should be acted upon by Kohutek. (7) Kohutek purchased the trailer house and placed same on the land in question in reliance upon the representation of Rhoades that Alcoa consented to his placing a trailer house on the land in question.

Appellant asserts fourteen points of error. Point one asserts that the trial court erred in rendering a take-nothing judgment against Alcoa because the evidence conclusively established that appellee breached the restriction in his deed and that Alcoa did not act arbitrarily or capriciously in refusing to consent in writing to appellee placing a trailer house on the land in question. Appellant's point four asserts additionally that Alcoa is not estopped from asserting the deed restriction. Appellant's remaining twelve points assert that the evidence is legally and factually insufficient to support the jury answers to special issues 2, 3, 4, 5, 6 and 7. Appellant agrees with the jury finding on special issue No. 1.

Appellee's brief not only replies to appellant's fourteen points of error but also contains 'appellee's point in support of judgment,' which we will first consider. Here appellee contends that the judgment should be affirmed irrespective of the jury verdict because as a matter of law a trailer house is not a building or improvement within the terms of the restrictive covenant in appellee's deed. We disagree with appellee's stated contention and hold that the trailer house here involved is at least a building within the meaning of the restrictive covenant.

It may be said that generally the word 'building' includes an erection or structure intended for use and occupation as a habitation or for some purpose of trade, manufacture, ornament, or use. See Mutual Lumber Co. v. Sheppard, 173 S.W.2d 494 (Tex.Civ.App ., Austin, 1943, n.w.h.), in which the Court said:

'* * * It is generally held, however, that the meaning of the noun 'building' depends usually upon the particular facts and circumstances of each case, controlled largely by the intention of the parties, or by the aim or purpose of a particular statute. The noun 'building' has been generally held to include any edifice erected by the hand of a man of lumber, iron, stone, brick, wood, marble, cement, or any other substance, connected together, and designed for any use in the position fixed; or to include an edifice, an erection, a fabric built or constructed; a structure designed for the habitation of men or animals, or for the shelter and protection of property. Whenever the noun 'building' is used in this sense it has been held to include all sorts of structures, fabrics built or constructed, edifices or erections used or useful to man. * * *'

At the time the present dispute arose the trailer house was more or less permanently located on the 2.5 acre tract purchased by Kohutek. The trailer house had been deprived of all means of locomotion, not only by detachment from the truck that delivered it but also by reason of the fact that it had been lifted off its wheels and placed on blocks. It has a roof, side walls, floor, cross walls and furnishings. It is connected to public utilities. It has beds, bath, toilet and cooking facilities. It is used as a place in which eight people live, eat and sleep. Under the facts, the trailer house falls within the scope of the definition of 'building' whether such word be given a broad or restricted meaning. See 12 C.J.S. Building p. 380.

In Corning v. Town of Ontario (1953), 204 Misc. 38, 121 N.Y.S.2d 288, Corning sought to restrain the defendants from attempting to enforce the provisions of a town zoning ordinance which provided that one story residential buildings in 'A' districts should contain at least 900 square feet. Corning and family lived in a trailer house containing less than 900 square feet. The trial court granted Corning the injunction sought, but the judgment was vacated on appeal. The Court held in part as follows:

'The papers before the court do not indicate whether the trailer rests upon wheels, jacks, blocks, or some type of permanent foundation. The plaintiffs do however allege that sanitary facilities have been installed including a septic tank and well and that electricity has also been installed. It is apparent, therefore, that the trailer has been affixed to the land by such sanitary and electrical connections. The plaintiffs further say that they sold their house and bought the trailer and the lot upon which it stands for the purpose of their residence and that they now have no other place in which to live. It is therefore apparent that the plaintiffs intend to occupy this trailer and the lot on which it is located as a permanent residence.

'Plaintiffs claim that the trailer is not a building because it is something mobile. Mobile it was when used upon the highway, but mobility cases when it was removed from the highway, attached to the soil and occupied as living quarters. A metamorphosis has occurred; the mobile vehicle has become a fixed residence.'

'The meaning of the word 'building' as used in the Zoning Ordinance must also be...