Inwood North Homeowners' Ass'n, Inc. v. Meier

• Decision Date: 04 June 1981
• Docket Number: No. 17912,17912
• Parties: INWOOD NORTH HOMEOWNERS' ASSOCIATION, INC., Appellant, v. Bill MEIER, et ux., Appellees. (1st Dist.)
• Court: Texas Court of Appeals

Page 742

625 S.W.2d 742

INWOOD NORTH HOMEOWNERS' ASSOCIATION, INC., Appellant, v. Bill MEIER, et ux., Appellees.

No. 17912.

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

June 4, 1981.

Woodard, Hall & Primm, Mark C. Watler, Houston, for appellant.

Adam, Adam & Anderson, Jerry Adam, Houston, for appellees.

Before COLEMAN, C. J., and PEDEN and SMITH, JJ.

PEDEN, Justice.

The Inwood North Homeowners' Association, Inc., obtained a judgment permanently enjoining Mr. and Mrs. Bill Meier from maintaining a visible window air-conditioning unit in their garage in the Inwood North subdivision of Harris County. The Association appeals only from that portion of the judgment denying it recovery of an attorney's fee, sought pursuant to Article 1293b, Vernon's Tex.Civ.Stat., and the Meiers urge by cross-point of error that the trial court erred in granting the permanent injunction under the facts. We affirm the granting of the injunction and reverse as to the denial of an attorney's fee.

The Association contends that the trial court erred in refusing to award it a reasonable attorney's fee because such an award is mandatory under Article 1293b in any suit based on the breach of restrictive covenants. The Meiers' position is that the trial court's refusal is supported by ample evidence and that the inaccurate reference in the appellant's pleadings to the article under which attorney's fees are sought as 12.92b is fatal to their right to recover under "Article 12.93b."

Article 1293b provides:

(a) In an action based on breach of a restrictive covenant pertaining to real property, the court shall allow a prevailing party who asserted the action for breach of restrictive covenant, reasonable attorney's fees, in addition to his costs and claim.

(b) To determine reasonable attorney's fees, the court shall consider:

(1) the time and labor required;

(2) the novelty and difficulty of the questions;

(3) the expertise, reputation, and ability of the attorney; and

(4) any other factor. (emphasis added)

Apparently the question of whether the award of reasonable attorney's fees under this particular statute is mandatory or within the discretion of the trial court is one of first impression. The only two cases we have found which interpret the statute are not on point. In Townplace Homeowners' Association, Inc. v. McMahon, 594 S.W.2d 172 (Tex.Civ.App.1980, writ ref'd n. r. e.), we held that the appellant was not entitled to an award of attorney's fees where it had failed to prevail on the merits of its cause. In Knopf v. Standard Fixtures Company, Inc., 581 S.W.2d 504 (Tex.Civ.App.1979, no writ), the issue was whether the attorney's fees awarded by the trial court under Article 1293b were excessive, but in our case the trial court refused to award the appellant any attorney's fee. Nor are analogies particularly helpful from cases involving discretionary awards of attorney's fees under Art. 2226, V.T.C.S., since the wording in that statute indicates that a person "may also recover, in addition to his claim and costs, a reasonable amount as attorney's fees, if represented by an attorney." (emphasis added)

Whenever possible, statutes should be given their everyday, reasonable meaning, Banks v. Chicago Grain Trimmers Association, 390 U.S. 459, 465, 88 S.Ct. 1140, 1144, 20 L.Ed.2d 30 (1968); Martinez v. Texas Employment Commission, 570 S.W.2d 28, 32 (Tex.Civ.App.1978, no writ), citing State Highway Department v. Gorham, 139 Tex. 361, 162 S.W.2d 934 (1942), and it is assumed that the ordinary meaning of the words used expresses the legislative intent, Richards v. United States, 369 U.S. 1, 9, 82 S.Ct. 585, 590, 7 L.Ed.2d 492 (1962). "(T)he ordinary meaning of 'shall' or 'must' is of mandatory effect, and ... the ordinary meaning of 'may' is merely permissive in character." Mitchell v. Hancock, 196 S.W. 694, 700 (Tex.Civ.App.1917, no writ). The Texas Supreme Court has said that in "determining whether the Legislature intended the particular provision to be mandatory or merely directory, consideration should be given to the entire act, its nature and object, and the consequences that would follow from each construction." Chisholm v. Bewley Mills, 155 Tex. 400, 287 S.W.2d 943, 945 (1956). In cases where the use of "shall" has been construed as permissive, it is clear that the courts felt that such a construction was necessary to effectuate the true legislative intent or policy. See, e.g., Lewis v. Jacksonville Building & Loan Association, 540 S.W.2d 307, 311 (Tex.1976); Chisholm v. Bewley Mills, supra; Thomas v. Groebl, 147 Tex. 70, 212 S.W.2d 625, 630 (1948). The general rule is that "may" is given a permissive construction, see, e.g., Womack v. Berry, 156 Tex. 44, 291 S.W.2d 677, 683 (1956), and that "shall" is given a mandatory construction, see, e.g., State Board of Insurance v. Betts, 158 Tex. 612, 315 S.W.2d 279 (1958); Wood v. State, 133 Tex. 110, 126 S.W.2d 4 (1939); Moyer v. Kelley, 93 S.W.2d 502 (Tex.Civ.App.1936, writ dism'd).

Here, the 1979 analysis of H.B. 318, which became Article 1293b, supports a mandatory reading of the word "shall". The "Section Analysis" states that section 1 of the bill was designed to "require ... the award of reasonable attorney's fees and costs to certain prevailing parties in suits based on the breach of a restrictive covenant". H.B. 318 (Lauhoff) 1979 at 1-2. (emphasis added) Moreover, the "Background Information" section of the bill's history indicates that the statute is intended to create a substantive, remedial right for enforcement of deed restrictions, particularly bearing in mind the areas of the state where there are no zoning ordinances.

We hold that a plain reading of the statute makes the award of attorney's fees mandatory in cases such as this, where the other conditions set forth in the statute are met, i.e., where the prevailing party asserted an action based on breach of a restrictive covenant pertaining to real property.

The next question is whether, having established a prima facie right to mandatory attorney's fees under 1293b, the appellant forfeited such right by incorrectly citing the statute in its petition. Again, no case directly on point has been found, but we believe the better view to be that the error in reciting the statute number was not fatal.

The Association's petition included allegations that it was necessary for it to hire attorneys in the case, and concluded:

Accordingly, since this is an action based on breach of a restrictive covenant pertaining to real property, should Plaintiff prevail in this suit, it is entitled to an award from Defendants of reasonable attorney's fees, pursuant to Tex.Civ.Stat. art. 12.92b (1978 Pamphlet Supp.), in an amount deemed reasonable in the judgment of the Court.

WHEREFORE, PREMISES CONSIDERED, Plaintiff prays:

....

(5) That Plaintiff recover a reasonable attorney's fee in an amount deemed reasonable in the judgment of the Court;

....

Pleadings are sufficient if they give fair notice to the opponent, Stone v. Lawyers Title Insurance Corp., 554 S.W.2d 183 (Tex.1977); Rule 45, Tex.R.Civ.P., and all pleadings should be construed to do substantial justice, Dueitt v. Barrow, 384 S.W.2d 214, 215 (Tex.Civ.App.1964, no writ), rev'd on other grounds, 453 S.W.2d 814, 821 (Tex.1970); Glens Falls Insurance Co. v. Vetrano, 347 S.W.2d 769, 772 (Tex.Civ.App.1961, no writ).

In this case the plaintiff's attorney testified extensively concerning the services he performed on behalf of the Association. The only objection made by the appellees' counsel was, "We would object from this point on," when the plaintiff's attorney testified that he was asking for additional attorney's fees in the event the case was appealed; the objection was overruled. No basis for the objection was offered, and the appellees' counsel did not reurge it; no bill of exception was taken during trial, and no special exceptions to the pleadings were filed. Prior to the objection the appellant's counsel had testified that he was asking for reasonable attorney's fees of $1,200 up to the time of judgment. The only hint in the statement of facts which might have indicated that the Meiers' attorney had any sort of pleading defect in mind was his question to the Association's attorney during cross-examination that "You never amended your Petition after the initial Petition?" Article 1292b makes no mention of attorney's fees yet the Association's petition clearly indicates that it is relying on statutory authority for the claim; moreover, the appellees even now do not contend that they were not given fair notice of it.

We overrule this point. The policy of requiring a party to complain of technical defects in a timely and specific manner is a thread running through the case law in this general area. See, generally, Sherman v. Provident American Insurance Co., 421 S.W.2d 652 (Tex.1967); Lowther v. Lowther, 578 S.W.2d 560 (Tex.Civ.App.1979, writ ref'd n. r. e.); Dueitt v. Barrow, supra. In Darden v. White, 195 S.W.2d 1009, 1010 (Tex.Civ.App.1946, writ ref'd n. r. e.), it was held that the appellant could not complain of an incorrectly pleaded date, where the case was tried to the jury on the theory that an ouster had occurred ten years after such date. It is the appellee in our case who complains of the typographical error, but the underlying logic is similar.

We hold that the trial court erred in denying the Association's claim for an attorney's fee.

The appellees' cross-point of error is: "The trial court erred in granting the Appellant a permanent injunction under the facts of this case." They do not specify whether they are saying that there is no evidence or factually insufficient evidence, so the point is obscure and does not require us to consider it. We will, however, in the interest of justice, do so. Since the appellees offered no evidence, it makes little difference which of the two bases they rely upon. The appellant's position is that since the...