Deep East Texas Regional Mental Health and Mental Retardation Services v. Kinnear

• Decision Date: 09 June 1994
• Docket Number: No. 09-93-316,09-93-316
• Citation: 877 S.W.2d 550
• Parties: , 5 NDLR P 277 DEEP EAST TEXAS REGIONAL MENTAL HEALTH AND MENTAL RETARDATION SERVICES, Appellant, v. Joe Bruce KINNEAR, et al., Appellees. CV.
• Court: Texas Court of Appeals

Page 550

877 S.W.2d 550

5 A.D.D. 998, 5 NDLR P 277

DEEP EAST TEXAS REGIONAL MENTAL HEALTH AND MENTAL RETARDATION SERVICES, Appellant, v. Joe Bruce KINNEAR, et al., Appellees.

No. 09-93-316 CV.

Court of Appeals of Texas Beaumont.

Submitted May 5, 1994.

Decided June 9, 1994.

Wayne D. Haglund, Robin B. Phillips, Cassels, Haglund & Clark, Lufkin, for appellant.

T. Alan Hart, Jasper, for appellees.

Before WALKER, C.J., and BROOKSHIRE and BURGESS, JJ.

OPINION

BROOKSHIRE, Justice.

This appeal follows the granting of a temporary and permanent injunction in favor of appellees against the appellant, Deep East Texas Regional Mental Health Mental Retardation Services (DET), prohibiting DET from constructing a community home in a certain subdivision. DET proposed to build an architecturally correct structure wherein six female citizens of Texas with mental impairment would reside and would be supervised and carefully regulated by two staff members. The supervision would be on a 24-hour, seven-day week basis. This appeal as presented and argued involves certain Federal and State constitutional questions, as well as several Federal and State statutes. Kinnear filed four original and amended petitions using the wording "Kinnear, et al". The phrase "et al" implies other plaintiffs. None were named.

Part I--The Restrictive Covenants Issues

DET briefs, argues and presents points of error ten and eleven together; this grouping is logical and proper. Point of error ten complains that the trial court erred in finding the restrictive covenants forbade DET's intended use of its lots in the Bay Meadows Subdivision. In point of error eleven, DET challenges the trial court's conclusion that the proposed home would not as a structure constitute a single family residence and thereby a violation of certain restrictive covenants would result. We agree; DET's points of error ten and eleven are sustained.

The relevant restrictions are:

1. All lots shall be known and described as lots for residential purposes only. Only one one-family residence may be erected, altered, placed or be permitted to remain on any lot. Said lots shall not be used for business purposes or any kind nor for any commercial, manufacturing or apartment house purposes.

....

3. No noxious or offensive activity shall be carried on upon any lot, nor shall anything be done thereon which may be or become an annoyance or nuisance to the neighborhood.

We conclude that the trial court erred in finding that the proposed structure would violate the restrictive covenants of Bay Meadows. The restrictive covenants as noted above restrict the architectural form of the structure. However, such restrictions do not address the use to which the proposed residence is put. See, Permian Basin Centers v. Alsobrook, 723 S.W.2d 774 (Tex.App.--El Paso 1986, writ ref'd n.r.e.); Collins v. City of El Campo, 684 S.W.2d 756 (Tex.App.--Corpus Christi 1984, writ ref'd n.r.e.).

In Permian Basin Centers, the unanimous El Paso Court of Appeals held that such a term as single family dwelling deals with the character of the structure that may be erected, altered, or placed or permitted to remain on any residential building plot. This term does not refer to the use to be made of the structure. The restriction in our case, since it speaks of erection, alteration, and placement on a plot definitely refers to structures. There is obviously no mention of any type of restriction or covenant that seeks to impose an actual single family occupancy within the structure. The lots are permitted to be used for residential purposes. DET satisfies the residential requirement.

Thus, it is now the established law in our state that the term "single family residence" refers to the architectural character and the architectural form of the structure that may be built, not the use which may be made of the structure. By necessary, logical reasoning, the term "single family residence" deals with the design or form of the residence in an architectural, structural sense. This is the correct interpretation inasmuch as the restriction itself is explained and limited by its wording: "Only one one-family residence may be erected, altered, placed or be permitted to remain on any lot." Note that a separate provision deals with the use, reading: "Said lots shall not be used for business purposes of any kind nor for any commercial, manufacturing or apartment house purposes." This first restriction has to do with the construction and building and erection of the architectural structure. Indeed, the only meaningful "use" provisions in the restrictions merely distinguish between business, commercial uses on the one hand and residential uses on the other. Residential uses are not prohibited and under this record there is no evidence or legal basis for holding that the community home or family home to be built would be either business or commercial. See, Permian Basin Centers, supra; Collins v. City of El Campo, supra.

It is well established that if a restrictive covenant is susceptible of two reasonable interpretations or if the wording is not entirely clear, stringent, and limiting; then, any doubt must be resolved in favor of freer use and against restrictions. Southampton Civic Club v. Couch, 159 Tex. 464, 322 S.W.2d 516 (1959). Restrictive clauses must be stringently and rigorously construed, favoring the grantee; and any doubt and all doubt must be resolved in favor of the autarchical use of property. Id.

In Permian Basin Centers, for example, the court found that the erection of a residential structure or home for six unrelated mentally retarded adults and two staff persons or, in the alternative, two house parents, did not violate covenants which disallowed all but single family dwellings. Again, the El Paso court determined that the restrictions limited only the character of the structure or the architectural type of house that would be permitted. Inasmuch as the proposed DET structure is to be used for residential purposes, there is no violation of the restrictive covenant.

Appellees place major reliance on Shaver v. Hunter, 626 S.W.2d 574 (Tex.App.--Amarillo 1981, writ ref'd n.r.e.), cert. denied, 459 U.S. 1016, 103 S.Ct. 377, 74 L.Ed.2d 510 (1982). Shaver is different and meaningfully distinguishable from this case on appeal. The restrictive covenants have different wording and dissimilar language and meaning. In Shaver, there was a mixture of the use restrictions and the structural or architectural restrictions. Such a mixture is absent here. Indisputably, here, the proposed house was designed as a single family residence--as opposed, for example, to duplexes or apartment buildings.

A cardinal purpose of the remedial, rehabilitative statutes (noted below) is to surround the citizens of Texas who suffer from mental impairment with a residential, family structure in his or her own familiar community. In Collins, supra, as we have noted above, the court held that the term "single family dwelling" in the restrictive covenants, did not require occupancy by a single family, and did, indeed, permit use of the property as a family home or community home for four unrelated, mentally retarded men inasmuch as the structure was architecturally designed as a single family residence. See Collins, supra, 684 S.W.2d at 761, 762. We sustain DET's points ten and eleven.

Appellant's points of error fifteen and sixteen aver the trial court erred in finding that the proposed community home of DET would constitute an annoyance and a nuisance and therefore would be a violation of the restrictions of Bay Meadows. As we read the record, there has been no construction on the land. No earthwork has been started. No foundation work has been commenced. No structure has been initiated. But the trial court held that, nevertheless, Deep East Texas' construction and future operation of the proposed community home would constitute both an annoyance and a nuisance. There is no evidence to sustain these rulings and findings. We have assiduously adhered to the established standards of appellate review, pursuant to the following landmark authorities: Garza v. Alviar, 395 S.W.2d 821 (Tex.1965); In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951); Robert W. Calvert, "No Evidence" and "Insufficient Evidence" Points of Error, 38 TEX.L.REV. 361 (1960); St. John Garwood, The Question of Insufficient Evidence on Appeal, 30 TEX.L.REV. 803 (1952). We sustain appellant's point of error number fifteen.

By like reasoning we sustain appellant's point of error sixteen. As to point of error sixteen, the trial court held that a future building constituted an annoyance and a nuisance. Under established rules of law in our State, a "nuisance per se" is an act, structure or an occupation that is a nuisance at all times and under any and all circumstances and located at any location. See City of Sundown v. Shewmake, 691 S.W.2d 57 (Tex.App.--Amarillo 1985, no writ). No evidence exists in this record to prove a "nuisance per se".

A "nuisance in fact", on the other hand, is a fact situation or determination of an actual nuisance which depends on the facts of each particular case. Before it is proper to enjoin the construction of a house or building, the record must clearly establish that the proposed use or activity therein will necessarily create a nuisance. The mere speculative, future prospect of some type of future annoyance or injury from a structure to be built in the future is simply not a valid ground for the issuance of an injunction. McAshan v. River Oaks Country Club, 646 S.W.2d 516 (Tex.App.--Houston [1st Dist.] 1982, writ ref'd n.r.e.); Schulman v. City of Houston, 406 S.W.2d 219 (Tex.Civ.App.--Tyler 1966, writ ref'd n.r.e.).

In Schulman, the court reaffirmed the established rule that injunctive relief will be denied where the threatened or anticipated act or acts complained of may or may not become in the future a nuisance. Under equity...