First State Bank of Corpus Christi v. James

• Decision Date: 09 September 1971
• Docket Number: No. 633,633
• Parties: FIRST STATE BANK OF CORPUS CHRISTI, Appellant, v. T. M. JAMES, Appellee.
• Court: Texas Court of Appeals

Page 868

471 S.W.2d 868

FIRST STATE BANK OF CORPUS CHRISTI, Appellant, v. T. M. JAMES, Appellee.

No. 633.

Court of Civil Appeals of Texas Corpus Christi.

Sept. 9, 1971.

Sorrell, Anderson, Sorrell & Atwill, James R. Sorrell, Jr., Corpus Christi, for appellant.

Philip A. Schraub, Corpus Christi, for appellee.

OPINION

BISSETT, Justice.

This is an injunction case that concerns the enforcement of a 'private residential use only' subdivision restriction. T. M. James, as plaintiff, sued the First State Bank of Corpus Christi, as defendant, to enjoin the proposed use of Lot 13, Block 23, Del Mar Addition, City of Corpus Christi, Texas, as a parking lot or driveway into a parking area owned by defendant.

The trial was before a jury which answered special issues favorably to plaintiff. Judgment was entered permanently enjoining the defendant from using the lot 'for any purpose except private residential use only, for so long as said restrictions remain in force and effect.' The bank has duly and timely perfected this appeal. We affirm.

Appellant is the owner of Lot 13, in Block 23 Del Mar Addition. Appellee is the owner of Lot 14, in Block 23, of the addition. These lots are adjoining and both were limited by the subdivision restrictions to 'private residential use only.'

The land comprising Del Mar Addition was subdivided into lots and blocks and a plat thereof was filed for record in the office of the County Clerk of Nueces County, Texas, in 1925. A. L. Wright, Trustee, the owner and subdivider of the addition, executed an instrument on December 2, 1925, denominated 'Declaration of Limitations and Restrictions'. The document was filed for record on December 3, 1925, and was introduced in evidence at the trial of this case. The restrictions were by their own terms in force for a term of 25 years from date thereof, with the provision that they could be extended by a majority vote of the lot owners in the addition voting at an election to be called and conducted in accordance with certain stated requirements and procedures. On May 6, 1950, such an election was held, and a majority of the 427 lot owners voting at the election, voted to extend and continue the restrictions for a period of 25 years from and after December 2, 1950.

The subdivision restrictions were made expressly applicable to subsequent contracts of sale, deeds, etc., affecting or transferring the title to any real property in the addition. It was further expressly provided that the terms of the instrument shall extend to 'all who are and may become owners of lots in Del Mar Addition.'

Originally, Del Mar Addition was platted so as to permit a business community composed of Blocks 21, 22 and 36, that became known as 'Six Points', and a residential community composed of the remainder of the blocks therein. We incorporate a sketch of a portion of the addition. It is not an exhibit but does show the location of the original 'Business Section' and the location of the lots and blocks, together with the streets bounding same, that are pertinent to this appeal. The sketch, which is not drawn to scale, is as follows:

Block 23 consists of 30 lots. Lots 1 to 15 face south on Clifford Street. Lots 16 to 30 face north on Palmero Street. Each lot has a 50 foot frontage on the respective streets and goes back a depth of 135 feet.

Block 24 consists of 32 lots. Lots 1 to 16 face south on Cole Street. Lots 17 to 32 face north on Clifford Street.

At the outset, appellant contends that there is no evidence in the record that establishes or supports any general plan or scheme of restriction in Del Mar Addition. The first and second points of error state that the trial court erred in impliedly finding (a) that such a general plan or scheme had existed in the subdivision, and (b) that appellee relied on the residential use restrictions. These points cannot be sustained.

The question of no evidence is one of law and judicial review of such question imposes upon us a duty to consider only the evidence favorable to the fact finding and to disregard all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821 (Tex.Sup.1965).

Our Supreme Court, in Wisdom v. Smith, 146 Tex. 420, 209 S.W.2d 164, 166 (1948), where the question before the Court was whether as a matter of law there was any evidence to sustain the judgment of the district court, announced the rule:

'* * * In determining this question, we must presume that the evidence supports not only the express findings made by the district court, but also any omitted findings which are necessary to support the judgment. * * *'

That rule also applies to implied findings by the trial court, when implied findings are necessary to sustain the judgment. Here, the judgment was entered pursuant to jury findings. Appellant did not request that these matters be submitted to the jury for fact determination.

A general plan or scheme must be proved by the party seeking to enforce the restriction. Massengill v. Jones, 308 S.W.2d 535 (Tex.Civ.App., Texarkana, 1957, wr. ref. n.r.e.); 16 Tex.Jur.2d, Covenants, etc., § 129, p. 36. Appellee met the burden of proof as is apparent by a brief review of the evidence dealing with this point.

With the growth and development of the City of Corpus Christi, conditions in some areas of Del Mar Addition changed to the extent that some of the lots were no longer best suited for residential purposes. On March 31, 1951, in Cause No. 44343--C, the private residential use only restrictions as to the north half of Block 35, Del Mar Addition, were cancelled by decree of a District Court of Nueces County, Texas. And, on July 10, 1968, in Cause No. 96553--C, such restrictions insofar as they affected the west 10 feet of Lot 9, and all of Lots 10, 11 and 12, Block 35, (in the south half of the block) were removed by similar decree. Neither appellant nor appellee were parties to either of these two cases.

In another case, the 105th District Court of Nueces County, Texas, in Cause No. 84293--D, on December 18, 1964, entered judgment that removed the residential restrictions as to (a) Lot 2, and Lots 4 to 20, in Block 20; (b) Lots 1, 2, 3, 5, 7, 11, Lots 15 to 26, and Lots 28 to 30, in Block 23; and (c) Lots 17 to 22, and Lots 24 to 32, in Block 24, Del Mar Addition. Appellant was one of the plaintiffs therein. Appellee was not a party thereto, was not served with citation, made no appearance in the case, and did not learn of the suit until June or July, 1969.

In addition to the above cases, there is also in evidence the pleadings and judgment in Cause No. 80181--B, 117th District Court of Nueces County, Texas, wherein the court cancelled certain limitations on the types of business that could be conducted on some of the business lots in Blocks 21, 22, 35 and 36 of the addition. Appellant was a plaintiff therein; appellee was not a party thereto.

The allegations, findings, recitations and judgments in each of the above mentioned four cases are indicative that the general plan or scheme of restrictions as promulgated by the original owner and subdivider had been implemented at the time suit was filed. Copies of these court proceedings are in evidence. There was a cumulative total of about 109 plaintiffs and defendants in the four cases, all of whom owned lots in the addition.

Deeds incorporating the restrictions were executed after the effective date of the restrictions. The deed to James C. James and wife, Mary M. James (parents of appellee), dated January 11, 1951, conveying Lot 14, Block 23, is made subject to the restrictions. Likewise, in the several deeds conveying Lots 13, 18 and 19, Block 23, to appellant, it is recited in each deed that the conveyance is made subject to all restrictions that where then in effect.

We do not believe that the case of Gibbs v. Garden Oaks Board of Trustees, 459 S.W.2d 478 (Tex.Civ.App., Houston 14th, 1970, wr. ref. n.r.e.), relied upon by appellant, is controlling of appellant's first point. The evidence presented by the record in that case is different from that presented in the instant case. The two cases are distinguishable on the facts.

The recording of the restrictions, the deeds executed as being subject to the restrictions, the holding of the election to extend the restrictions, the litigation above referred to, and the testimony of the witnesses show that a large number of lot owners knew of, looked to, were bound by, complied with, and relied upon the restrictive limitations affecting Del Mar Addition. The only logical inference that can be drawn from the evidence adduced at the trial is that there had been in existence for a long time prior to the institution of this suit a general plan of restriction in the addition.

Upon any violation of the restrictions it was provided 'the party so violating shall become subject to legal injunction by A. L. Wright, Trustee, or by the owner of any lot in Del Mar Addition.' It has been repeatedly held that in a case of this character such restrictions may be enforced by any lot owner against any other lot owner. Plaster v. Stutzman, 8 S.W.2d 750, 753 (Tex.Civ.App., Galveston, 1928, n.w.h.) and the cases therein cited; Witte v. Sebastian, 278 S.W.2d 200 (Tex.Civ.App., Amarillo, 1953, n.w.h.). Appellee, a lot owner in Del Mar Addition, was authorized to bring suit. There is ample evidence to support the implied findings by the trial court. Appellant's first and second points do not present reversible error, and they are, accordingly, overruled.

In its third point of error, appellant contends that the trial court erred in holding that 'the 'private residential use only' restriction in the immediate area of the James' property had not been abandoned or waived'.

Appellee's parents purchased Lot 14, in Block 23, in 1951. It was acquired by appellee in 1959 by deed of gift from his mother. The premises have been used exclusively for residential purposes since prior to 1951.

When appellee's parents...