Davis v. Huey
| Decision Date | 05 November 1980 |
| Docket Number | No. 13183,13183 |
| Citation | 608 S.W.2d 944 |
| Parties | Tom H. DAVIS, et ux., Appellants, v. Robert M. HUEY, et ux. et al., Appellees. |
| Court | Texas Court of Appeals |
Tom H. Davis, Byrd, Davis & Eisenberg, Austin, for appellants.
Douglas D. Hearne, Douglass D. Hearne & Associates, and Eskew, Muir & Bednar, Austin, for appellees.
Appellants, Tom H. Davis and Hattie Davis, husband and wife, appeal from a permanent injunction entered by the district court of Travis County ordering them to remove a portion of their partially-constructed house and enjoining any further construction until plans for such construction have been approved in writing by appellee Austin Corporation. Other appellees are Robert M. Huey and Mary Paige Huey, husband and wife, and David B. Barrow. The principal issue on appeal concerns the meaning of a restrictive covenant that is applicable to appellants' lot. This Court will affirm the judgment of the district court.
This appeal is another phase of a continuing dispute between the parties. In April of 1977, the Hueys filed suit against appellants in the district court of Travis County seeking an injunctive order prohibiting appellants from proceeding with construction of the house, and ordering removal of such structure in violation of the restrictive covenant. After hearing, the district court denied appellees' application for temporary injunction. This Court reversed that judgment and granted the relief sought by appellees. Huey v. Davis, 556 S.W.2d 860 (Tex.Civ.App.1977), rev'd on other grounds, 571 S.W.2d 859 (Tex.1978). The Supreme Court reversed the judgment of this Court and remanded the cause to the district court for trial on the merits. Davis v. Huey, 571 S.W.2d 859 (Tex.1978).
The holding of the Supreme Court was that this Court's review of the order refusing the temporary injunction should have been limited to whether there had been an abuse of discretion by the district court. The Supreme Court concluded, "Without intruding upon the merits of the underlying cause of action, it may be concluded that at least some basis exists upon which the trial court could have properly held that the Hueys were not entitled to a temporary injunction pending the final hearing." Davis v. Huey, supra at page 863.
Appellees' cause of action is predicated upon paragraph eight of a set of restrictive covenants applicable to all lots in Northwest Hills, Section Seven Addition, including those owned by appellants and the Hueys. Appellants' lot adjoins the Huey lot on the canyon rim of an area known as Cat Mountain. The restrictive covenants provide as follows:
"1. Designation of Use
All lots shall be used for single family residential purposes, with not more than one residence on any lot. No lot shall be used for a trade or profession; nor shall anything be done on any lot which may be or may become an annoyance or nuisance to the neighborhood. The Developers, however, may erect a temporary sales office on any lot selected by them, in accordance with the zoning regulations of the City of Austin.
2. Retention of Easements
Easements are reserved as indicated on the recorded plat.
3. Temporary Structure and Garage Apartments
No apartment house, house trailer, tent, shack, garage apartment or other out-building shall be placed, erected, or permitted to remain on any lot or plot, nor shall any structure of temporary character be used at any time as a residence thereon.
4. Separate Garages, Guest Houses, Etc.
A separate garage building, servants' quarters of one story, or a one story quest house not to exceed 600 square feet of floor area will be permitted, provided that such structure or structures must be attached to the main residence by a common wall or by a covered passage-way, provided that the main dwelling be substantially completed prior to said erection and provided further that all other restrictions, covenants, conditions and uses herein are complied with.
5. Minimum Plat Size
No structure shall be erected or placed on any plot which plot has an average width of less than 70 feet. No resubdivision of existing lots shall be made which would create an additional lot or plot; but this shall nor prevent the modifying of boundaries of original lots in conformity with the above minimum width. For the purpose of these restrictions, a 'plot' shall consist of a lot or lots having a contiguous frontage and having an average width of not less than 70 feet.
6. Size and Construction of Dwellings
All dwellings shall be of recognized standard construction. The dwelling erected on any plot shall cover not less than 1,500 square feet of floor area of which not less than 1,300 square feet shall be in the house proper, exclusive of garage and porches. Ornamental structures, fences and walls are permitted subject to approval in writing by the Developers, or in the alternative by the Architectural Committee referred to under Paragraph No. 8.
7. Set-Back, Front Line, Side Line and Rear Line
No structure shall be located or erected on any lot nearer to the front plot line than twenty-five (25) feet, nor nearer than five (5) feet to any side plot line except that the total combined setback from both sides shall in no event be less than fifteen (15) feet, nor nearer than fifteen (15) feet to the rear plot line.
8. Architectural Control and Building Plans
For the purpose of insuring the development of the subdivision as a residential area of high standards, the Developers, or in the alternative an Architectural committee appointed at intervals of not more than five years by the ten owners of a majority of the lots in Northwest Hills Section Seven Addition, reserve the right to regulate and control the buildings or structures or other improvements placed on each lot. No building, wall or other structure shall be placed upon such lot until the plan therefor and the plot plan have been approved in writing by the Developers. Refusal of approval of plans and specifications by the Developers, or by the said Architectural Committee, may be based on any ground, including purely aesthetic grounds, which in the sole and uncontrolled discretion of the Developers or Architectural Committee shall seem sufficient. No alterations in the exterior appearance of any building or structure shall be made without like approval. No house or other structure shall remain unfinished for more than two years after the same has been commenced.
9. General Covenants
These provisions are hereby declared to be conditions, restrictions, uses and covenants running with the land and shall be fully binding on all persons acquiring property in Northwest Hills Section Seven Addition, whether by descent, devise, purchase or otherwise, and every person by the acceptance of title to any lot of this subdivision shall thereby agree to abide by and fully perform the foregoing conditions, restrictions, uses and covenants, which shall be binding until January 1, 1986. On and after January 1, 1986, said conditions, restrictions, uses and covenants shall be automatically extended for successive periods of ten years unless changed in whole or in part by a vote of three-fourth majority of the then owners of the lots in Northwest Hills Section Seven Addition, each lot, or plot, to admit of one vote.
10. Penalty Provisions
If any person or persons shall violate or attempt to violate any of the above conditions, restrictions, uses and covenants, it shall be lawful for any other person or persons owning any of the lots in Northwest Hills Section Seven Addition to prosecute proceedings at law or in equity against the person or persons violating or attempting such violations to prevent him or them from so doing, or to recover damages for such violations. No act or omission on the part of any of the beneficiaries of the covenants, conditions, restrictions and uses herein contained shall ever operate as a waiver of the operations of or the enforcement of any such covenant, condition, restriction or use."
Appellants presented their plans to appellee developers pursuant to the requirements of the above covenant. The developers disapproved the plans. Appellees pleaded that the disapproval of appellants' plans was a reasonable, good faith exercise of the discretion vested in them by the restrictive covenant. More specifically, appellees claimed that completion of appellants' house would reduce the value of the Huey property as well as neighboring property because of its extreme size, placement and disharmony with other houses already built. In addition, appellants' planned construction would obstruct the visual enjoyment of the scenery provided by the natural valley below and the southerly and southwesterly panorama of Northwest Hills, shared by the Hueys and other neighbors.
Despite the developer's disapproval, appellants launched construction of their house in the spring of 1977. Appellees filed suit in April, 1977.
The district court submitted the case to the jury by two special issues. Upon timely request, the district court also filed findings of fact and conclusions of law. The jury answered special issue number one that the developers, in refusing to approve appellants' plans, acted reasonably and in pursuance of a general plan or scheme to insure the development of the subdivision as a residential area of high standards. In connection with the submission of special issue number one, the court instructed the jury:
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