Hoye v. Shepherds Glen Land Co., Inc.

• Decision Date: 31 May 1988
• Docket Number: No. 05-87-01269-CV,05-87-01269-CV
• Citation: 753 S.W.2d 226
• Parties: Michael B. HOYE and Carol F. Hoye, Appellants, v. SHEPHERDS GLEN LAND COMPANY, INC., Appellee.
• Court: Texas Court of Appeals

Page 226

753 S.W.2d 226

Michael B. HOYE and Carol F. Hoye, Appellants, v. SHEPHERDS GLEN LAND COMPANY, INC., Appellee.

No. 05-87-01269-CV.

Court of Appeals of Texas,

Dallas.

May 31, 1988.

Rehearing Denied July 5, 1988.

Lee Roland, Garland, for appellants.

Richard M. Hunt, Dallas, for appellee.

Before DEVANY, MCCLUNG and BAKER, JJ.

DEVANY, Justice.

Michael and Carol Hoye appeal the trial court's judgment ordering them to replace the roof on their house because the composition roof that the Hoyes installed breaches a restrictive covenant. In six points of error, the Hoyes complain that: (1) the trial court is without authority to extend a restrictive covenant to include anything not plainly prohibited; (2) the restrictive covenant is ambiguous as a matter of law; (3) the term "permanent type" is ambiguous as a matter of law; (4) there is no evidence to support the trial court's finding that "permanent type" excludes composition-type roofs; (5) the trial court's finding that composition roofs are generally not as long lasting as those roofs made of permanent type materials is against the great weight and preponderance of the evidence; and (6) the restrictive covenant is void as against public policy. Finding no merit in these points, we affirm the judgment of the trial court.

Shepherds Glen is a residential subdivision which is regulated by restrictive covenants. The pertinent part of the covenant at issue in this case is as follows: "All roofs shall be wood shingle, slate or other permanent type." The Hoyes built a home with a roof consisting of composition shingles. Subsequently, the developers of Shepherds Glen brought this suit alleging that the composition shingle roof violated the restrictive covenant. The trial court ruled in favor of the developers and ordered the Hoyes to replace the roof on their house with one that conformed with the restrictive covenant.

We find it more convenient to address the points of error in reverse order. In their sixth point of error, the Hoyes complain that the restrictive covenant is void as against the public policy of this State. The Hoyes base their argument on section 5.025 of the Texas Property Code which provides:

To the extent that a deed restriction applicable to a structure on residential property requires the use of a wood shingle roof, the restriction is void.

TEX.PROP.CODE ANN. § 5.025 (Vernon 1984).

The Hoyes claim that the only practical economic alternative for homeowners under the restrictive covenant was to use wood shingled roofs. Thus, they claim that the effect of the covenant is to allow only wood shingled roofs and, therefore, the covenant is void under the code. We disagree.

"The practical disadvantages of other alternatives to wood shingles for a structure of a particular design do not establish that the restriction in question is void." Stergios v. Forest Place Homeowners' Association, Inc., 651 S.W.2d 396, 400 (Tex.App.--Dallas 1983, writ ref'd n.r.e.). The fact that 51 of the 55 houses in the subdivision have wood shingle roofs is not proof as a matter of law that the practical effect of enforcing the covenant is to force homebuilders to use wood shingle roofs. Even if this Court were to strike out the portion of the covenant dealing with wood shingles, the Hoyes can still use "slate or other permanent type" of materials. Accordingly, the Hoyes' sixth point of error is overruled.

In their fifth point of error, the Hoyes complain that the trial court's finding that composition shingle roofs are generally not as long lasting as those made out of a "permanent type" material is against the great weight and preponderance of the evidence. The Hoyes assert that the trial court was including wood shingle in its definition of "permanent type" roofs, and that the testimony established that composition shingle roofs last longer than wood shingle roofs. Thus, the Hoyes argue, composition shingle roofs are as long lasting as permanent type roofs. We do not agree that the trial court included wood shingles in its findings with respect to permanent type roofs. The overwhelming evidence at trial was that wood shingles were not considered a permanent type. The testimony concerning which materials were longer lasting was quite specific in delineating between wood shingles, slate, other permanent type materials, and composition shingles. The record contains testimony by two witnesses who are knowledgeable in the roofing trade which supports the trial court's finding that composition shingle roofs are generally not as long lasting as permanent type roofs. According to the testimony, wood shingles are the least enduring material with slate and other permanent type being the longest lasting material; composition shingle roofs fall somewhere in between the two categories. Accordingly, we overrule the Hoyes' fifth point of error.

In their fourth point of error, the Hoyes complain that there is no evidence to support the trial court's finding that "permanent type" has a common meaning among real estate sales people and developers which excludes composition shingle roofs. At trial, Shepherds Glen called a witness with expertise in the roofing business. This witness testified that he was familiar with the terms used in the roofing business and that, in the roofing trade, a composition shingle roof is not considered a permanent type material. The witness further testified to the meaning of the term "permanent type" in the roofing trade which term excludes composition shingles. This...