Frey v. DeCordova Bend Estates Owners Ass'n

• Decision Date: 09 March 1983
• Docket Number: No. C-1380,C-1380
• Citation: 647 S.W.2d 246
• Parties: Eugene C. FREY, Petitioner, v. DeCORDOVA BEND ESTATES OWNERS ASSOCIATION, Respondents.
• Court: Texas Supreme Court

Page 246

647 S.W.2d 246

Eugene C. FREY, Petitioner, v. DeCORDOVA BEND ESTATES OWNERS ASSOCIATION, Respondents.

No. C-1380.

Supreme Court of Texas.

March 9, 1983.

Rehearing Denied April 6, 1983.

Bailey F. Rankin, Granbury, for petitioner.

Ralph H. Walton, Jr., Granbury, for respondents.

WALLACE, Justice.

This is an appeal from a summary judgment. Eugene C. Frey (Frey) filed suit for an injunction against DeCordova Bend Estates Owners Association (Association). Frey sought to enjoin the Association's possible assessment and collection of certain special fees from owners of property within the subdivision. These fees were $300 for a permit to build a house, $100 to transfer ownership of a lot, and $100 to lease a lot. The covenants provide that any unpaid fees will become a lien upon the lot in question and further give the Association the right to foreclose upon that lien in the event of nonpayment. Frey is currently under no obligation to pay any such fees. Both parties filed motions for summary judgment. The trial court denied Frey's motion and granted the motion of the Association. The court of appeals affirmed the judgment of the trial court. 632 S.W.2d 877. We affirm the judgment of the court of appeals.

The issues presented are: (1) whether the assessments complained of are authorized by the restrictions and covenants of record which became a part of each landowner's deed at the time of purchase; and (2) if such assessments are unauthorized, has Frey demonstrated the existence of an actual irreparable injury, not remediable at law, that would entitle him to permanent injunctive relief? The pertinent sections of the covenants (Sections 15, 16 and 19) and by-laws (Sections 3 and 4) are reproduced in full below. ¹ Frey contends that the only permissible assessments other than user fees, are those levied on all property owners equally. He further contends that the building, transfer and leasing fees are not levied on all property owners and are thus not permitted. We agree with that contention.

A study of the covenants and bylaws of the Association leads us to interpret the terms of the agreements as providing: that all property owners were also Association members; that the Association was to take title to the common property and recreational facilities in trust for all of its members; that the Association was to maintain and operate the common properties and recreational facilities, to charge user fees when appropriate and to levy only those monthly assessments sufficient to defray the actual costs of maintaining and operating its facilities and to adjust those fees annually as becomes necessary. It is evident the covenants and bylaws require these charges to be levied evenly upon all users and that the assessments were to be equally imposed upon all property owners.

The Association contends that Frey has not built upon, sold or leased his lot; therefore he has failed to make the requisite proof of the existence of an actual irreparable injury which is necessary to support the granting of injunctive relief. The record reflects no attempt or even intent by Frey to build upon, sell or lease his lot; nor is there a showing that the Association intends to assess a fee against Frey. Absent such proof, he is not entitled to injunctive relief. Luccous v. J.C. Kinley Co., 376 S.W.2d 336, 341 (Tex.1964). Moreover, fear or apprehension of the possibility of injury alone is not a basis for injunctive relief. Schulman v. City of Houston, 406 S.W.2d 219, 225 (Tex.Civ.App.--Tyler 1966, writ ref'd n.r.e.).

The mere invalidity of the contested fees does not constitute a substantial and actual injury or threat of imminent harm to Frey; therefore, he did not show that he was entitled to injunctive relief. Since Frey has sought only injunctive relief in this case, the trial court was correct in granting summary judgment for the Association.

The judgment of the court of appeals is affirmed.

BARROW and CAMPBELL, JJ., concur in the result.

1 Covenants:

15. Upon acceptance of an application for membership in DeCordova Bend Estates Owners Association, Inc. and the simultaneous execution of a sales contract or the acceptance of a Deed, each purchaser shall become a member of DeCordova Bend Estates Owners Association, Inc. (herein referred to as "The Association"), a non-profit...