Imperial Interplaza II, Inc. v. Corrections Corp. of America, Inc.

• Decision Date: 28 August 1986
• Docket Number: No. B14-86-146-CV,B14-86-146-CV
• Citation: 717 S.W.2d 422
• Parties: IMPERIAL INTERPLAZA II, INC., Appellant, v. CORRECTIONS CORPORATION OF AMERICA, INC., Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 422

717 S.W.2d 422

IMPERIAL INTERPLAZA II, INC., Appellant, v. CORRECTIONS CORPORATION OF AMERICA, INC., Appellee.

No. B14-86-146-CV.

Court of Appeals of Texas,

Houston (14th Dist.).

Aug. 28, 1986.

Rehearing Denied Sept. 25, 1986.

Joe G. Roady, Houston, for appellant.

B.J. Walter, Jr., David Lee Crawford, Houston, for appellee.

Before PAUL PRESSLER, SEARS and CANNON, JJ.

OPINION

CANNON, Justice.

Imperial Interplaza II, Inc. (Imperial) appeals the trial court's summary judgment in favor of Corrections Corporation of America, Inc. (CCA). Imperial filed suit to enjoin the construction and operation of an illegal alien detention center on property adjacent to that owned by Imperial. The land owned by Imperial and the land leased by CCA for the detention center are covered by the same deed restrictions. Imperial brings five points of error challenging the trial court's summary judgment ruling that CCA's maintaining the detention center does not violate the deed restrictions. Imperial argues (1) as a matter of law the Architectural Control Committee of World Houston, Inc. (the Committee) did not have the power to allow the use of premises in the office park that is incompatible with uses enumerated in the deed restrictions; (2) a genuine issue of material fact exists regarding whether the use of premises for a detention center is incompatible with the enumerated uses; (3) the language in the deed restrictions granting the Committee power to approve particular uses is ambiguous and not subject to the trial court's construction; (4) the permission granted by the Committee to CCA is void because neither CCA nor the Committee complied with the declaration's variance requirements; and (5) a genuine issue of material fact exists concerning whether CCA or the Committee complied with the variance provisions. We affirm.

All issues in this appeal center upon the construction of two sections of the Declaration of Protective Covenants for World/Houston International Business Center, Section 1, as amended. It is therefore necessary to quote these provisions in full. Article VII, Building, Use and Construction Standards and Restrictions, provides:

Section 1. Permitted Uses. All of the Building Sites shall be used solely for office, office park, office/warehouse, hotel, retail, and such other uses as the Committee may determine, in its sole discretion, in writing, to be permitted uses which shall not be incompatible with the foregoing uses.... [I]n the absence of specific restrictions to the contrary, written approval of the Committee of a particular permitted use shall be conclusive evidence of compliance with the intent of these Protective Covenants as to the use of the portion of the Restricted Properties expressly made the subject of such approval.

Article VI, Architectural Control Committee, provides:

Section 4. Variances. This Declaration contains a number of provisions wherein the Committee is expressly granted the authority, in its discretion, to permit, consent to or approve a variance from the specific requirements or affect of a particular covenant. The Committee may require the submission to it of such documents and items ... as it shall deem appropriate, in connection with its consideration of a request for a variance. If the Committee shall approve such request for a variance, the Committee may evidence such approval, and grant its permission for such variance, only by written instrument, addressed to the Owner of the Building Site(s) relative to which such variance has been requested, describing the applicable covenant(s) and the particular variance requested, expressing the decision of the Committee to permit the variance, describing (when applicable) the conditions (which may be affirmative and/or negative in nature) on which the variance has been approved (including, as examples but without limitation, ... the nature of the proposed use which has been approved, ...) and signed by a majority of the then members of the Committee....

Under the last sentence of Article VII, Section 1, quoted above, written approval by the Committee is conclusive on the propriety of a proposed use unless a specific provision in the Declaration prohibits the proposed use. It is undisputed that the Committee approved in writing CCA's proposal to use its leased property for the construction and operation of a detention center. Thus, this writing must be given conclusive effect unless the declaration contains a specific restriction to the contrary.

In its first point of error, Imperial argues that the language in Article VII, Section 1, "which shall not be incompatible with the foregoing uses" is such a restriction. Imperial therefore concludes in its second point of error the Committee's written approval is not to be given conclusive effect and the compatibility of the proposed use remains a question of fact rendering the summary judgment improper. Imperial further reasons that if the language can be interpreted as other than a limitation on the Committee's authority, then the language is...