Davis v. Huey

• Decision Date: 04 October 1978
• Docket Number: No. B-7182,B-7182
• Parties: Tom H. DAVIS et ux., Petitioners, v. Robert M. HUEY et al., Respondents.
• Court: Texas Supreme Court

Page 859

571 S.W.2d 859

Tom H. DAVIS et ux., Petitioners, v. Robert M. HUEY et al., Respondents.

No. B-7182.

Supreme Court of Texas.

Oct. 4, 1978.

Rehearing Denied Nov. 1, 1978.

Graves, Dougherty, Hearon, Moody & Garwood, John T. Anderson and Robert J. Hearon, Jr., Byrd, Davis & Eisenberg, Tom H. Davis, Austin, for petitioners.

Eskew, Brady, Womack & Muir, Doren R. Eskew, David L. Tisinger, Austin, for respondents.

JOHNSON, Justice.

The primary issue presented by this case is the proper scope and standard of review by the court of civil appeals of a trial court's denial of a temporary injunction.

The respondents, Robert M. Huey and wife, Mary Paige Huey, filed suit to permanently enjoin the petitioners, Tom and Hattie Davis, from building upon their lot until their plans therefor had been approved by the developer. The Hueys further sought an immediate temporary restraining order and, after a hearing, a temporary injunction similarly restraining the Davises. After a hearing the trial court denied the temporary injunction and the Hueys appealed the denial of the temporary injunction. The court of civil appeals reversed the trial court judgment and rendered judgment that the cause be remanded to the district court, with instructions to enter judgment enjoining the Davises from continuing with construction until the plans had been approved by the developer. 556 S.W.2d 860. We reverse the judgment of the court of civil appeals and affirm the judgment of the trial court.

Petitioners Tom and Hattie Davis purchased a lot in Northwest Hills, a subdivision of Austin, Texas, noted for its view of the surrounding hills. The Davis lot abuts on its west side a lot owned by respondents Robert and Mary Paige Huey. A house was already constructed on the Huey lot at the time of the Davis purchase. The Davis lot, as are all other lots in the subdivision, is subject to certain restrictive covenants in its deed, including restrictions 7 and 8, as follows:

"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 "8. Architectural Control and Building Plans

than fifteen (15) feet, nor nearer than fifteen (15) feet to the rear plot line.

"For the purpose of insuring the development of the subdivision as a residential area of high standards, the Developers . . . 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 . . . may be based on any ground, including purely aesthetic grounds, which in the sole and uncontrolled discretion of the Developers . . . shall seem sufficient. No alterations in the exterior appearance of any building or structure shall be made without like approval. . . . " ¹

The Davises proposed to build a house on their lot to be situated twenty-five feet from the rear plot line. This placement of the house on the lot will clearly comply with restriction 7. However, the developer, respondent Austin Corporation, acting through respondent David Barrow, refused to approve the Davises' plans because the proposed placement of the house on the lot would bar the side view from the Hueys' existing house. In its refusal of the plans the developer purports to exercise its general authority under restriction 8 to refuse approval of a plan "on any ground, including purely aesthetic grounds, which in the sole and uncontrolled discretion" of the developer shall seem sufficient.

The Hueys filed the instant lawsuit to permanently enjoin the Davises from building any structure upon their lot until the plans therefor had been approved in writing by the developer. The Hueys' petition included a prayer that an immediate temporary restraining order be granted and that after a hearing a temporary injunction be entered, both similarly restraining the Davises. The trial court granted an immediate and Ex parte temporary restraining order. After a hearing the trial court entered an order dissolving the temporary restraining order and denying the temporary injunction. No findings of fact or conclusions of law were requested or filed.

The Hueys appealed the denial of the temporary injunction. The court of civil appeals reversed the trial court judgment and rendered judgment "that the cause be remanded to the district court, with instructions to enter judgment enjoining Appellees Davis and wife from continuing with construction until the house and plot plans have been approved by the developer." In reaching this result the court of civil appeals opinion concluded that the covenants in question were valid. The opinion discussed at length the authorities in Texas and other jurisdictions which uphold restrictive covenants implementing a general scheme of development for the common benefit of all lot owners by providing for approval of building plans by the developer. The court of civil appeals further examined the issue of the standard governing the developer's conduct in exercising its plan approval authority and concluded that the developer's conduct is improper only if it is arbitrary or in bad faith.

THE TEMPORARY INJUNCTION REVIEW

The Davises contend that the court of civil appeals far exceeded the proper scope of appellate review of a temporary injunction and improperly granted premature review of the entire case on its merits. We must agree. The appeal of an order granting or denying a temporary injunction is an appeal from an interlocutory order, which is expressly authorized by Article 4662, Texas Revised Civil Statutes Annotated. Accordingly, the merits of the underlying case are not presented for appellate review. Appellate review of an order The court of civil appeals opinion contains no indication that it confined its appellate consideration to review for abuse of discretion. To the contrary, it appears that the court of civil appeals gave full consideration to the merits of the underlying lawsuit. The opinion itself characterizes the case as an appeal from an order denying an injunction. The opinion makes no reference to the interlocutory nature of the injunction or to the abuse of discretion standard. Further, the order which the court of civil appeals directed the trial court to enter upon remand fully grants the relief sought by the Hueys in their lawsuit: injunction of the construction until the Davises' plans are approved by the developer.

granting or denying a temporary injunction is strictly limited to determination of whether there has been a clear abuse of discretion by the trial court in granting or denying the interlocutory order. State v. Southwestern Bell Tel. Co., 526 S.W.2d 526 (Tex.1975); City of Spring Valley v. Southwestern Bell Tel. Co., 484 S.W.2d 579 (Tex.1972); State v. Cook United, Inc., 469 S.W.2d 709 (Tex.1971); Texas Foundries v. International Moulders & F. Wkrs., 151 Tex. 239, 248 S.W.2d 460 (1952).

The Hueys argue that the court of civil appeals opinion was clearly limited to review of the temporary injunction because that was the only issue raised before that court. However, a reading of the court of civil appeals opinion and order will not support this contention. The effect of premature review of the merits accomplished by the court of civil appeals here is to deny the Davises their right to trial by jury. This court will not assume that the evidence taken at a preliminary hearing will be the same as the evidence developed at a full trial on the merits. Houston Belt & T. Ry. Co. v. Texas & New Orleans R. Co., 155 Tex. 407, 289 S.W.2d 217 (1956); Transport Co. of Texas v. Robertson Transports, 152 Tex. 551, 261 S.W.2d 549 (1953).

At a hearing upon the request for a temporary injunction the only question before the trial court is whether the applicant is entitled to preservation of the status quo...