French v. Diamond Hill-Jarvis Civic League

• Decision Date: 05 February 1987
• Docket Number: No. 2-86-061-CV,HILL-JARVIS,2-86-061-CV
• Citation: 724 S.W.2d 921
• Parties: L.R. FRENCH, Jr., Appellant, v. DIAMONDCIVIC LEAGUE, Karren Homeowner's Association, Donnis Hatchett, Pat Fritz and Joy Godbey, Appellees.
• Court: Texas Court of Appeals

Page 921

724 S.W.2d 921

L.R. FRENCH, Jr., Appellant, v. DIAMOND HILL-JARVIS CIVIC LEAGUE, Karren Homeowner's

Association, Donnis Hatchett, Pat Fritz and Joy

Godbey, Appellees.

No. 2-86-061-CV.

Court of Appeals of Texas,

Fort Worth.

Feb. 5, 1987.

Rehearing Denied March 12, 1987.

Strasburger & Price and W. Edward Walts, II and Mark M. Donheiser, Dallas, for appellant.

Lane, Lane, Ware & Reyes and Michael Logan Ware, Fort Worth, for appellees.

Before FENDER, C.J., and HILL and HOPKINS, JJ.

OPINION

HILL, Justice.

L.R. French, Jr. appeals from a denial of his request for a declaratory judgment that certain restrictive covenants no longer apply to or run with the Karren Addition, Third Filing, blocks 14, 15, 16, 17, 18, and 19, as described in volume 388-G, page 60, of the plat records of Tarrant County or, alternatively, a declaration that such covenants no longer apply to or run with the Karren Addition, Third Filing, as recorded in volume 388-G, page 60 of the Tarrant County plat records. French's counterclaim was filed in response to a petition for injunction brought by the Diamond Hill-Jarvis Civic League, the Karren Homeowner's Association, Donnis Hatchett, Pat Fritz, and Joy Godbey, the appellees. The appellees' injunction suit was brought against French and others to enforce certain deed restrictions. One of the other defendants, U-Totem, Inc. also filed a counterclaim. Prior to trial, appellees reached a settlement with all defendants other than French and indicated that they did not desire to proceed with their claim as to him. Trial on French's counterclaim was before the court, who denied French all relief requested. French presents twelve points of error on appeal.

We reverse and render judgment as requested by French, remanding the issue of attorney's fees to the trial court for reconsideration in view of our ruling.

In point of error number one, French asserts that the trial court erred in its finding of fact no. 1, which found that the restrictive covenants have not been released, because the evidence showed that the covenants have been released as a matter of law.

Findings of fact entered in a case tried to the court are of the same force and dignity as a jury's verdict upon special issues. City of Clute v. City of Lake Jackson, 559 S.W.2d 391, 395 (Tex.Civ.App.--Houston [14th Dist.] 1977, writ ref'd n.r.e.). The trial court's findings of fact are reviewable for legal and factual sufficiency of the evidence to support them, First Nat. Bank in Dallas v. Kinabrew, 589 S.W.2d 137, 146 (Tex.Civ.App.--Tyler 1979, writ ref'd n.r.e.), by the same standards as are applied in reviewing the legal or factual sufficiency of the evidence supporting a jury's answer to a special issue. Okon v. Levy, 612 S.W.2d 938, 941 (Tex.Civ.App.--Dallas 1981, writ ref'd n.r.e.).

If an appellant is attacking the legal sufficiency of an adverse finding to a special issue on which he had the burden of proof, the Supreme Court of Texas has stated that the appellant must, as a matter of law, overcome two hurdles. See Holley v. Watts, 629 S.W.2d 694, 696 (Tex.1982). First, the record must be examined for evidence that supports the finding, while ignoring all evidence to the contrary. Id. If there is no evidence to support the fact finder's answer, then secondly, the entire record must be examined to see if the contrary proposition is established as a matter of law. Id.

The deed restrictions in question provide that they may be released "by vote of a majority of the then owners of the lots." Regardless of whether husbands and wives are treated as one or two owners, the evidence reflects that a majority of the affected owners have filed releases of the deed restrictions. The appellees maintain that despite the fact that the majority of lot owners have filed releases of the covenants, that the covenants are not released because the "votes" were not counted on a one lot-one vote basis and, if they had been, there would not be a majority of owners favoring release; the vote tally does not purport to include the equitable owners of the lots; all or most of the releases were signed prior to January 1, 1985, and are therefore not the votes of the owners of the lots as of January 1, 1985; the effort was to abolish the restrictions rather than change them; and finally, the releases do not constitute "votes" or an "election."

We shall first examine the appellees' assertion that if the "votes" are counted on a one lot-one vote basis there would not be a majority of "votes" in favor of release. We construe the language of the covenants to mean what it says, i.e., "a majority of the then owners of the lots," not the owners of the majority of the lots. We have been referred to no Texas case directly on point, but we are in agreement with the courts of other states which have construed the same or similar language. See Cieri v. Gorton, 179 Mont. 167, 587 P.2d 14, 16-17 (1978); Beck v. Council of the City of St. Paul, 235 Minn. 56, 50 N.W.2d 81, 83 (1951). A previous case before this court, Bryant v. Lake Highlands Dev. Co. of Texas, 618 S.W.2d 921, 923 (Tex.Civ.App.--Fort Worth 1981, no writ) is distinguishable because in that case there was an intent manifested within the original declaration that voting rights be exercised on a per lot basis.

We now consider the appellees' argument that the votes of any equitable owners were not considered in French's count of the votes. Jack Cole, general counsel of a Fort Worth title company, testified that he had examined the Tarrant County deed records and determined the owners of the subject property. There was no evidence that any of these owners held anything less than full title to the property. There was no evidence presented of anyone holding any equitable title to the subject property. It is presumed that a deed conveys full title to the grantee; any party challenging the extent or sufficiency of the conveyance bears the burden of establishing the existence of equitable title in another. Clayton v. Ancell, 140 Tex. 441, 168 S.W.2d 230, 232-33 (1943); Sims v. Duncan, 195 S.W.2d 156 (Tex.Civ.App.--Galveston 1946, writ ref'd n.r.e.). In the absence of any testimony to the contrary, we shall presume that the owners of the property as reflected by the deed records have full ownership of the property. The appellees rely on the case of Harrison v. Air Park Estates Zoning...