Meyerland Community Imp. Ass'n v. Temple, 01-85-0154-CV

• Decision Date: 24 October 1985
• Docket Number: No. 01-85-0154-CV,01-85-0154-CV
• Citation: 700 S.W.2d 263
• Parties: MEYERLAND COMMUNITY IMPROVEMENT ASSOCIATION, Appellant, v. Mitchell G. TEMPLE, et al, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 263

700 S.W.2d 263

MEYERLAND COMMUNITY IMPROVEMENT ASSOCIATION, Appellant, v. Mitchell G. TEMPLE, et al, Appellee.

No. 01-85-0154-CV.

Court of Appeals of Texas,

Houston (1st Dist.)

.

Oct. 24, 1985.

Rehearing Denied Nov. 27, 1985.

Michael S. Wilk, Susan G. Perin, Hirsch & Westheimer, Houston, for appellant.

Robert L. Collins, Robert Collins & Associates, Daniel Kistler, Ronald G. Fitzgerald, Gerald Woolf, Houston, for appellee.

Before DUNN and SAM BASS, JJ., and KEITH, J., ^* Retired.

OPINION

DUNN, Justice.

Appellant, Meyerland Community Improvement Association, ("MCIA"), is a civic organization composed of the 2,315 lot owners in the Meyerland Addition, Harris County, Texas. MCIA brought this action for declaratory judgment against appellees, composed of 62 lot owners in Section 4 of the Meyerland Addition, the Development Group, Inc., and Beretta & Company. Essentially, MCIA instituted the suit to prohibit the lot owners in Section 4 from selling their property to the Development Group, Inc., for a proposed nonresidential use.

The basis of the suit, therefore, is the interpretation of deed restrictions covering the Meyerland Addition. Development started in Meyerland in the early 1950's, beginning with the development of Section 1. The development continued on a section-by-section basis until the early 1970's when the last section was completed. In all, twenty-one separate sections were platted and developed. Each section was platted separately, and each section had its own set of deed restrictions, which were recorded in the real property records of Harris County. No general plan for the entire Addition was recorded.

The original restrictive covenants for each section in Meyerland provided for an initial term of twenty-five years and for automatic, successive 10-year renewal terms unless changed by a majority of the then-existing lot owners.

Restrictive covenants for the various sections began coming up for renewal in 1979. The majority of lot owners in five sections, including Section 4, elected to adopt amended deed restrictions. The following amendments were made to the restrictive covenants for Section 4:

23. TERM--

These covenants are to run with the land and shall be binding on all parties and all persons claiming under them until January 1, 2000, after which time said covenant shall be automatically extended for successive periods of ten years unless an instrument signed by a majority of the then owners of the lots has been recorded, agreeing to change said covenants in whole or in part.

22. AMENDMENTS AND CHANGES TO RESTRICTIONS AND COVENANTS--

These restrictions and covenants may be amended and changed at any time by the affirmative vote of the then lot owners of at least 2/3 of the lots shown by the recorded plat Meyerland, Section 4, evidenced by written agreement signed and acknowledged by the then owners of at least 2/3 of such lots: such amendment or change shall become effective upon such written agreement being filed for the record in the Office of the County Clerk of Harris County, Texas; provided, however, that the person or persons requesting an amendment for a change, or the Meyerland Community Improvement Association if it be the requestor, shall bear all expenses in connection therewith.

At trial, MCIA sought a declaration as to the validity and scope of these amendment provisions. The trial court entered judgment for appellees, based on the following jury findings to special issues:

1) The Meyerland Addition was established pursuant to a general plan or scheme of development for single family residential use;

2) There has been such a change in conditions affecting the property in Section 4 of the Meyerland Addition that it is no longer possible to secure in substantial degree the benefits for which the restrictive covenants, restricting the addition to its residential property use only, were originally intended.

3) No harm would result to the remaining lot owners in the Meyerland Addition if the deed restrictions, restricting the property in Section 4 to residential single family use, were removed;

4) The actual intent of the parties to the amended deed restrictions of Section 4, with respect to paragraph 22, was that the deed restrictions could be amended at any time to change the use of the property to some character other than residential single family use.

MCIA appeals from the trial court's declaratory judgment and asserts twenty-two points of error, which it groups under seven propositions.

MCIA's first proposition asserts that any amendment to the restrictive covenants affecting Section 4 of the Meyerland Addition must be consistent with the general plan of development for single family residential use under which the entire Meyerland Addition was established and has been maintained.

MCIA contends that this establishment and maintenance of a general plan or scheme imposed negative reciprocal easements on all property in the Meyerland Addition, including Section 4. MCIA cites cases to support the well-established doctrine that a general plan or scheme for development commonly evidences the parties' intent to invoke the protection of restrictive covenants for the purchases of property subject to the covenants. See Curlee v. Walker, 112 Tex. 40, 244 S.W. 497 (1922); Lehmann v. Wallace, 510 S.W.2d 675 (Tex.Civ.App.--San Antonio 1974, writ ref'd n.r.e.); Schulz v. Zoeller, 568 S.W.2d 677 (Tex.Civ.App.--San Antonio 1978, writ ref'd n.r.e.). However, we find that the right of each section in the Meyerland Addition to change its respective restrictive covenants after 25 years evinces no intent to impose a continuing common plan or scheme. Court enforcement of the equitable doctrine of "general plan or scheme" cannot be used to abrogate the specific agreement of the parties. See Gray v. Lewis, 241 S.W.2d 313 (Tex.Civ.App.--Galveston 1951, writ ref'd n.r.e.).

In Wren Mortgage Co. v. Timber Lakes & Timber Ridge Association, Inc., 612 S.W.2d 618 (Tex.Civ.App.--Beaumont 1980, writ ref'd n.r.e.), the court addressed a similar situation. There, separate restrictions were imposed upon nine different subdivisions created by a common owner. The nine instruments expressly provided that the restrictions could be changed or abolished by the majority of the lot owners within each subdivision. The Beaumont court found that these facts conclusively negated the idea that there was any plan or scheme applicable to the entire tract, and thus there were no reciprocal uniform covenants covering the entire tract.

The jury's finding that the Meyerland Addition was established and maintained pursuant to a general plan or scheme of development is not dispositive of MCIA's first proposition.

In MCIA's supplemental brief, it asserts that the recent decision in Hanchett v. East Sunnyside Civic League, 696 S.W.2d 613 (Tex.App.--Houston [14th Dist.], 1985) further supports its first proposition. Hanchett, in which a majority of lot owners unsuccessfully attempted to amend their deed restrictions, is easily distinguishable from the instant case. As noted by the Hanchett court, those original deed restrictions did not contain any language that authorized or provided a procedure for the amendment of those restrictions.

In contrast, the original restrictive covenants filed for each section of the Meyerland Addition provided that after the passage of 25 years, a majority of the then-existing lot owners in each individual section could change their respective covenants in whole or in part. As stated by the court in Valdes v. Moore, 476 S.W.2d 936 (Tex.Civ.App.--Houston [14th Dist.] 1972, writ ref'd n.r.e.):

[A]ppellants acquired their title to the property in the subdivision subject to the provision that the general plan of a residential subdivision might be altered by amendment of the original restrictions which established such plan. They may not successfully complain of its alteration in the manner so provided.

Id. at 941 (citing Couch v. Southern Methodist University, 10 S.W.2d 973 (Tex.Comm'n App.1928, judgmt adopted); Loving v. Clem, 30 S.W.2d 590 (Tex.Civ.App.--Dallas 1930, writ ref'd) ).

In Loving, the subdivider had also created different sections within a single subdivision, with provisions for amendment varied in the different areas. The court held that since the different provisions for amendment applied to different sections, it was the intention of the subdivider that lot owners in each section had the power to alter the restrictions in their own area without the intervention of lot owners in another section. 30 S.W.2d at 592-93.

We find that the principles of the decisions in Valdes and Loving are applicable to the case before this court. Appellant's first point of error is overruled.

MCIA groups its next 5 points of error under proposition 2, which contends that the only credible testimony established that the amendments and changes provision of Section 4's amended deed restriction (paragraph 22) was not intended to be used to change the single-family residential character of the property in the Meyerland Addition. These points of error relate to special issue number 4 and its jury finding, set out below:

SPECIAL ISSUE NUMBER FOUR

"Do you find from a preponderance of the evidence that the actual intent of the parties to the amended deed restrictions of Section 4, with respect to Paragraph 22, was that the deed restrictions could not be amended at any time to change the use of the property to some character other than residential single family use?

Answer: 'We do' or 'We do not'.

Answer: We do not"

Specifically, MCIA argues that it proved as a matter of law that paragraph 22 was not so intended, and in the alternative, that there was no evidence or insufficient evidence to support the jury finding, or that such finding was against the great weight and preponderance of the evidence. These points were raised by MCIA in its motion for new trial. Tex.R.Civ.P. 324(b)(2) an...