Memorial Hollow Architectural Control Committee v. Mapes

• Decision Date: 24 December 1980
• Docket Number: No. A2488,A2488
• Citation: 610 S.W.2d 230
• Parties: MEMORIAL HOLLOW ARCHITECTURAL CONTROL COMMITTEE et al, Appellants, v. Frank I. MAPES et ux, Appellees. (14th Dist.)
• Court: Texas Court of Appeals

Page 230

610 S.W.2d 230

MEMORIAL HOLLOW ARCHITECTURAL CONTROL COMMITTEE et al, Appellants, v. Frank I. MAPES et ux, Appellees.

No. A2488.

Court of Civil Appeals of Texas, Houston (14th Dist.).

Dec. 24, 1980.

C. Charles Dippel, Sears & Burns, Houston, for appellants.

Tom E. Beller, Branch, Beller & Lambert, Houston, for appellees.

Before J. CURTISS BROWN, C. J., and PAUL PRESSLER and JUNELL, JJ.

PAUL PRESSLER, Justice.

Appellants seek to reverse an adverse summary judgment in their suit to enjoin Appellees from altering the construction of their residence alleging a violation of certain restrictive covenants of the Memorial Hollow Addition.

There is no dispute as to the facts. A temporary injunction was first granted in Appellants' favor. Appellees then filed an answer, counterclaim and motion for summary judgment. The temporary injunction was dissolved and the summary judgment granted as to Appellants' cause of action. Appellees then took a non-suit on their counterclaim and the summary judgment became final.

The single issue to be decided on this appeal is whether the trial court erred in ruling as a matter of law that the powers of the Architectural Control Committee expired on June 17, 1979, according to the provisions of section (b) of the original Memorial Hollow Restrictions dated June 17, 1959. That section provides that the building plans, specifications and plot plans of all buildings to be "erected, placed or altered" must first be approved by an Architectural Control Committee which consisted of individuals named in the section or their representatives. That section further provides:

The duties and powers of such committee, and of its designated representatives, shall cease on and after ten years from date. Thereafter, the approval described in this covenant shall not be required unless, prior to said date and effective thereon, a written instrument shall be executed by the record owners of a majority of the lots in this subdivision and duly recorded appointing a representative or representatives, who shall thereafter exercise the same powers previously exercised by said committee.

It is the construction of the phrase, "... thereafter exercise the same powers previously exercised ..." which must be determined.

Appellees urge that restrictive covenants are to be construed strictly against persons seeking to enforce them, and all doubt must be resolved in favor of the free use of land. However, where the provisions of the restrictive covenants are not ambiguous and not susceptible of two or more meanings such a strict rule of construction need not be applied, and the clear intentions of the parties must be effectuated. Terrell v. Graham, 576 S.W.2d 610, 612 (Tex.1979); Stephenson v. Perlitz, 532 S.W.2d 954 (Tex.1976); Smith v. Moore, 425 S.W.2d 856, 862 (Tex.Civ.App. Houston (1st Dist.) 1968), modified, Moore v. Smith, 443 S.W.2d 552 (Tex.1969).

We find no ambiguity in the provisions of section (b) of the restrictive covenants. The clear intention was that the original Architectural Control Committee or its representatives should serve for a period of ten years from June 17, 1959, until June 17, 1969. Thereafter the same powers exercised by the original committee would be exercisable by a committee appointed prior to the expiration of the term of the original committee. The clear language of the provision may not be read to support Appellees' contention that in granting the "... same powers ..."...