Gunnels v. North Woodland Hills Community Ass'n

• Decision Date: 09 February 1978
• Docket Number: No. 17013,17013
• Citation: 563 S.W.2d 334
• Parties: Joel GUNNELS et ux., Appellants, v. NORTH WOODLAND HILLS COMMUNITY ASSOCIATION, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 334

563 S.W.2d 334

Joel GUNNELS et ux., Appellants, v. NORTH WOODLAND HILLS COMMUNITY ASSOCIATION, Appellee.

No. 17013.

Court of Civil Appeals of Texas, Houston (1st Dist.).

Feb. 9, 1978.

Rehearing Denied March 16, 1978.

Dellinger, Lawrence & Baca, Paul R. Lawrence, Houston, for appellants.

Dazey & Newey, Robert E. Newey, Houston, for appellee.

EVANS, Justice.

This is an appeal from a temporary injunction order requiring that the appellants remove a citizens band radio antenna from their residence.

This action was instituted by the plaintiff, North Woodland Hills Village Community Association, Inc., alleging that it was a non-profit corporation organized for the purpose of requiring compliance with the restrictions placed upon Woodland Hills Village, Section 5, for the mutual benefit and protection of all of the residents within the subdivision. Attached to and made a part of the plaintiff's petition by reference is a photocopy of the recorded restrictions applicable to Woodland Hills Village, Section 5. The pertinent provision in these restrictions provides:

"No electronic antenna or device of any type other than an antenna for receiving normal television signals shall be erected, constructed, placed or permitted to remain on any of the lots, houses, or buildings constructed in this subdivision. Television antennas may be attached to the house; however the antenna's location shall be restricted to the rear of the house or to the rear of the roof ridge line, cable or center line of the principal dwelling so as to be hidden from sight when viewed from the fronting street."

The appellants first contend that the trial court erred in granting the temporary injunction because North Woodland Hills Village Community Association, Inc., was not a proper party to the action. Under this point, the appellants argue that the evidence shows the plaintiff to be an association of residents both in and out of Section 5 of Woodland Hills Village and that the plaintiffs failed to prove that it would benefit from the enforcement of the restrictions. The appellants rely on Wald v. West MacGregor Protective Association, 332 S.W.2d 338 (Tex.Civ.App. Houston 1960, writ ref'd n. r. e.), wherein it was held that a community protective association had no justiciable interest where neither it nor the majority of its members owned property in the restricted area.

The Wald case is inapplicable to the facts in the case at bar. The restrictions for North Woodland Hills Village, Section 5, expressly authorize and empower North Woodland Hills Village Community Association, Inc., to institute proceedings for the enforcement of the restrictions. The appellants did not file a verified plea questioning the plaintiff's entitlement to recover in the capacity in which it sued, and they are in no position to argue that the plaintiff was not authorized to bring the action on behalf of the residents of Section 5. Rule 93, Tex.R.Civ.P.; Taylor v. Republic Grocery, 483 S.W.2d 293, 296 (Tex.Civ.App. El Paso 1972, no writ).

The evidence shows that the association is composed of residents of various sections of Woodland Hills Village, and that each of these sections has separate restrictions. However, the plaintiff sought to enforce only the restrictions applicable to Woodland Hills Village, Section 5, and the fact that the plaintiff also served residents of other sections would not disqualify it from seeking enforcement of the restrictions applicable to that section.

The appellants next contend that it was inequitable for the trial court to issue a mandatory injunction under the circumstances presented by the evidence. Under this point, they argue that there was no evidence that the plaintiff or any other person would suffer damages by reason of their continued use of the antenna pending a final hearing on the merits.

It is only under exceptional circumstances that a mandatory injunction will be granted prior to the final hearing, and the trial court should issue such a writ only where the right thereto is clearly established and a mandatory order is necessary to prevent irreparable injury. Haynie v. General Leasing Company, Inc., 538 S.W.2d 244 (Tex.Civ.App. Dallas 1976, no writ); Lawyers Surety Corporation v. Rankin, 500 S.W.2d 181 (Tex.Civ.App. Houston (14th Dist.) 1973, writ ref'd n. r. e.).

"Generally, the preservation of the quo can be accomplished by an injunction prohibitory in form, but it sometimes happens that the status quo is a condition not of rest, but of action, and the condition of rest is exactly what will inflict the irreparable injury on complainant. In such a case, courts of equity issue mandatory writs before the case is heard on its merits. This character of cases has been repeatedly held to constitute an exception to the general rule that temporary injunction may not be resorted to to obtain all relief sought in the main action; such temporary injunction may be mandatory in character." Rhodia, Inc. v. Harris County, 470 S.W.2d 415, 419 (Tex.Civ.App. Houston (1st Dist.) 1971, no writ)

The restrictive covenants of Woodland Hills Village, Section 5, prohibit the property owners of that subdivision from erecting or maintaining on their houses or buildings within the subdivision any antennas other than those used for receiving normal television signals. It is undisputed that the appellants were fully aware of the restrictive covenant at the time they purchased their lot and when they installed their citizens band radio antenna on their house.

The plaintiff in an action to enforce restrictive covenants is not required to prove actual damages in order to obtain injunctive relief. Shepler v. Falk, 398 S.W.2d 151 (Tex.Civ.App. Austin 1965, writ ref'd n. r. e.). Where a distinct or substantial breach of the restrictions is shown, the courts will enjoin the violation even though there is no proof of actual damages or irreparable injury. Protestant Episcopal Church Council v. McKinney, 339 S.W.2d 400, 403 (Tex.Civ.App. Eastland 1960, writ ref'd).

Furthermore, the status quo in the case at bar was not a condition of rest, but rather one of action, and was of such a nature as to inflict irreparable injury upon the residents of Woodland Hills Village, Section 5.

The appellants argue...