Calvary Baptist Church at Tyler v. Adams

• Decision Date: 17 August 1978
• Docket Number: No. 1144,1144
• Citation: Calvary Baptist Church at Tyler v. Adams, 570 S.W.2d 469 (Tex. Ct. App. 1978)
• Parties: CALVARY BAPTIST CHURCH AT TYLER, Texas, Appellant, v. Jeff ADAMS et al., Appellees.
• Court: Texas Civil Court of Appeals

Page 469

570 S.W.2d 469

CALVARY BAPTIST CHURCH AT TYLER, Texas, Appellant, v. Jeff ADAMS et al., Appellees.

No. 1144.

Court of Civil Appeals of Texas, Tyler.

Aug. 17, 1978.

Rehearing Denied Sept. 7, 1978.

Mike A. Hatchell, Ramey, Flock, Hutchins, Jeffus, McClendon & Crawford, Jack W. Flock, Tyler, for appellant.

Michael E. Jones, Potter, Guinn, Minton, Roberts & Ireland, H. Kelly Ireland, Tyler, for appellees.

MOORE, Justice.

This is an appeal from the issuance of a temporary injunction. Defendant, Calvary Baptist Church, purchased a 5-acre tract of land which is contiguous to Unit 12 of the Heritage South Subdivision of the City of Tyler. In connection with its project to build a church on the 5-acre tract, defendant purchased two vacant lots within Unit 12, being lots 9 and 10, which abutted the 5-acre tract along the east side. At the time the church purchased the lots they were burdened with "residential only" restrictions. Defendant drew up proposed plans for the construction of a driveway and parking facility on lots 9 and 10 and cleared the lots in preparation for the construction. Plaintiff individual homeowners residing in Unit 12 of the Heritage South Subdivision of Tyler brought suit to permanently enjoin defendant from constructing the parking lot and driveway and from doing any other activities which are not in conformity with the "residential only" restrictions.

A temporary restraining order was issued and the cause was set down for hearing on temporary injunction. Prior to that hearing, defendant filed a plea in abatement seeking a dismissal on the ground that the action was premature and without a judicial controversy. The motion was overruled and, after a hearing, the trial court entered a temporary injunction enjoining defendant from violating the restrictions until final hearing. From this order defendant appeals.

We affirm.

After the purchase of lots 9 and 10, the church developed plans for an initial phase of construction upon the 5-acre tract, which consisted of a main church building and ancillary access and parking lots. The preliminary plans included a proposal to construct a 24-foot driveway or street from the east boundary of the 5-acre tract across the south portion of lot 9, extending east to Yale Drive, the street on which all the plaintiffs reside.

Construction commenced on the 5-acre tract in April of 1977 and has proceeded continuously. At the time of the commencement of the injunction proceeding no construction was taking place on lots 9 and 10. However, it is undisputed that defendant had laid a sewer line and a water pipeline across the lots and had cleared the lots of "forrestry, shrubbery and junk." Further, there is ample testimony showing that defendant intended to go ahead with its plans for the construction of a parking facility and driveway unless restrained.

Unit 12, of which lots 9 and 10 are a part, is burdened with a residential-only restrictive covenant, which reads, in part, as follows:

"2. LAND USE AND BUILDING TYPE.

No lot shall be used except for residential purposes. No building shall be erected, altered, placed or permitted to remain on any lot other than a single family residence . . .."

Also a part of the restrictions was the creation of an "Architectural Control Committee," which was vested with authority to receive plans for the proposed construction of any structure in the unit and to determine whether the same was in conformity with the restrictions. The provisions creating the committee and outlining its procedure are as follows:

"19. ARCHITECTURAL CONTROL.

No building shall be erected, placed or altered on any lot until the construction plan, front elevation, specifications and a plan showing the location of the structure have been permanently filed with and approved by the Architectural Control Committee as to materials, harmony of external design with existing structures and as to location with respect to topography and finish grade elevation. . . ."

"21. PROCEDURE.

The Committee's approval or disapproval as required in these covenants shall be in writing. In the event the Committee fails to approve or disapprove within thirty days after plans and specifications have been submitted to it, or in any event if no suit to enjoin the construction has been commenced prior to the completion thereof, approval shall not be required and the related covenants shall be deemed to have been fully complied with. . . ."

It is undisputed that the proposed plans for any construction on lots 9 and 10 had not been submitted to the Architectural Control Committee for approval when this action was commenced.

Under the first point of error defendant contends that the trial court erred in overruling its plea in abatement. Defendant argues the action is not ripe for litigation and no judicial controversy exists, because at the time suit was filed the Architectural Control Committee had not passed on the plans and specifications relating to defendant's proposed construction on the two lots in question. Defendant takes the position that the individual lot owners in the restricted unit have no authority to institute suit unless and until the Architectural Control Committee has initially acted to determine the controversy. Accordingly, defendant argues there could be no judicial controversy until the occurrence of one of two things: (1) commencement of construction subsequent to an actual disapproval of plans and specifications by the control committee, or (2) an attempt by the constructing owner to bypass the administrative process altogether by commencement of a prohibited or unapproved form of construction. We find no merit in this contention.

The language of the restrictive covenant dealing with the procedure of the Architectural Control Committee specifically provides that ". . . if no suit to enjoin the construction has been commenced prior to the completion thereof, approval (by the committee) shall not be required . . .." Thus, the covenant contemplates the right of injunctive action by a homeowner regardless of whether any determination had first been made by the committee. The duty to submit the proposed construction plans to the committee and have them approved rests with the potential builder, not with the homeowner. The body of covenantal restrictions makes it clear that homeowners are given express authority to bring a suit to restrain a violation or an attempted violation of any covenant, without any condition precedent to the commencement of the suit. See First State Bank of Corpus Christi v. James, 471 S.W.2d 868 (Tex.Civ.App. Corpus Christi 1971, no writ history); Martin v. Moore, 562 S.W.2d 274 (Tex.Civ.App. Austin 1978, no writ history). Appellant's first point is overruled.

In the second point defendant contends that the trial court erred in granting the temporary injunction because plaintiffs failed to prove any potential violation of the subdivision restrictions by defendant's construction upon or contemplated use of its property. Under this point defendant argues that the proposed construction is prospective and speculative and therefore does not qualify for relief by temporary injunction. We do not agree.

While an injunction will not, as a rule, issue upon mere fear, apprehension or possibility of injury, this does not mean that the remedy may not be granted to prevent future wrongs. Where the danger is probable and threatened, the party may invoke the aid of equity to prevent it, and need not delay his application for injunction until injury has actually been inflicted. 42 Am.Jur.2d Injunctions sec. 31, p. 768.

The evidence shows that prior to the time plaintiffs filed suit, defendant had theretofore laid water and sewer lines across lots 9 and 10. The evidence further shows that defendant had delivered a brochure to the plaintiffs explaining to them the proposed parking lot and driveway. Moreover, the chairman of the building committee testified that it was the intention of the defendant to construct the driveway and parking lot at some future date. There is no question, then, but that defendant manifested an intent to construct the driveway and parking lot across lots 9 and 10 in violation of the residential-only restrictions. See Fowler v. Brown, 535 S.W.2d 46 (Tex.Civ.App. Waco 1976, no writ history).

The purpose of a temporary injunction is to...