Munson v. Milton

Citation948 S.W.2d 813
Decision Date30 April 1997
Docket NumberNo. 04-96-00694-CV,04-96-00694-CV
PartiesJames S. MUNSON, Marilyn A. Munson, and Dora E. Colley, Appellants, v. Frank MILTON, Lucille Milton, C.F. Morse, J.M. Hardwick, Sr., Frances Hardwick, Ken Hardcastle, Sandy Hardcastle, Dewey Pinegar, Jack Harlan, Arnell Harlan, F.H. Cherrington, Virginia Cherrington, William Aymes, Mary Jo Aymes, Curtis & Carrie Boyles, Appellees.
CourtCourt of Appeals of Texas

Phillip M. Hughes, Crawford, Crawford & Hughes, Uvalde, James S. Munson, Wharton, Michael C. Boyle, Matthews & Branscomb, P.C., Uvalde, for Appellants.

W. Patrick Dodson, Dodson, & Lowe, Uvalde, Joe M. Davis, Nunley & Jolley, L.L.P., Boerne, Thomas B. Black, San Antonio, for Appellees.

Before STONE, DUNCAN and ANGELINI, JJ.

OPINION

STONE, Justice.

This is an accelerated appeal of an order granting a temporary injunction. Appellants own one lot in the Chisum's Subdivision located in Uvalde, Texas. The remaining lots are owned by appellees. Since the fall of 1995, appellants have rented the house located on their lot to third parties through "Rio Frio Bed n Breakfast and Lodging," a professional rental agent. The third parties are generally vacationers who use the property for short periods of time, generally two to five days.

Paragraph six of the Reservations, Restrictions and Covenants Pertaining to Chisum's Subdivision restricts the use of the lots as follows:

All tracts within the Chisum's subdivision shall be used solely for residential, camping or picnicing purposes and shall never be used for business purposes. Motel, tourist courts, and trailer parks shall be deemed to be a business use.

Appellees filed suit seeking a temporary and permanent injunction to prohibit appellants from renting their house in violation of the foregoing restriction.

The trial court granted appellees a temporary injunction enjoining appellants from "renting and/or leasing said property to the public for lodging, vacation and recreation purposes." Appellants now appeal the trial court's order, contending the trial court abused its discretion in granting the temporary injunction because appellees failed to establish a probable right of recovery or the possibility of irreparable injury in the absence of temporary relief. Appellants also contend the temporary injunction imposes an unlawful restraint on the alienation of the appellants' property.

STANDARD OF REVIEW

At a temporary injunction hearing, the only issue before the trial court is whether the status quo should be preserved pending trial on the merits. Camp v. Shannon, 162 Tex. 515, 348 S.W.2d 517, 519 (1961); Ramsey v. Lewis, 874 S.W.2d 320, 322 (Tex.App.--El Paso 1994, no writ). The only issue on appeal is whether the trial court clearly abused its discretion in resolving that issue by granting or denying the temporary injunction. City of San Antonio v. Rankin, 905 S.W.2d 427, 430 (Tex.App.--San Antonio 1995, no writ); Ramsey v. Lewis, 874 S.W.2d at 323. The trial court abuses its discretion when it "misapplies the law to the established facts or when the evidence does not reasonably support the conclusion that the applicant has a probable right of recovery." City of San Antonio v. Rankin, 905 S.W.2d at 430. All legitimate inferences from the evidence are drawn in favor of the trial court's judgment, and the trial court does not abuse its discretion where the evidence "tends to sustain the cause of action as alleged." Id.

PROOF OF IRREPARABLE INJURY

Generally, a movant qualifies for temporary injunctive relief by showing: (1) a probable right of recovery; (2) imminent, irreparable harm will occur in the interim if the request is denied; and (3) no adequate remedy at law exists. Id. Despite this general rule, however, a movant seeking a temporary injunction to enforce a restrictive covenant is not required to show proof of irreparable injury. Guajardo v. Neece, 758 S.W.2d 696, 698 (Tex.App.--Fort Worth 1988, no writ). Instead, the movant is only required to prove that the defendant intends to do an act that would breach the covenant. Id.

Appellants contend the trial court abused its discretion in granting the temporary injunction because the evidence fails to establish that appellees would suffer irreparable injury if the relief were not granted. This contention has no effect on the trial court's ability to grant temporary relief in the instant case. As previously noted, appellees were not required to show proof of irreparable injury because they were seeking a temporary injunction to enforce a restrictive covenant. Guajardo v. Neece, 758 S.W.2d at 698. Therefore, this contention is without merit.

VIOLATION OF RESTRICTIVE COVENANT

Appellants also contend that appellees failed to establish a probable right of recovery because there was no showing that the action undertaken by appellants violated the restrictive covenant. Appellants then cite various cases to support the proposition that the rental of property used for living purposes does not violate a residential use restriction. Appellees counter with cases that suggest that the rental of property may violate a residential use restriction under certain circumstances.

In construing a restrictive covenant, a court's primary task is to determine the intent of the framers of the restrictive covenant. Wilmoth v. Wilcox, 734 S.W.2d 656, 658 (Tex.1987). In determining this intent, the court must liberally construe the covenant's language and must ensure that every provision is given effect. TEX. PROP.CODE ANN. § 202.003(a) (Vernon 1995); Crispin v. Paragon Homes, Inc., 888 S.W.2d 78, 81 (Tex.App.--Houston [1st Dist.] 1994, writ denied)(entire instrument must be examined and considered); Imperial Interplaza II, Inc. v. Corrections Corp. of America, Inc., 717 S.W.2d 422, 424 (Tex.App.--Houston [14th Dist.] 1986, writ ref'd n.r.e.) (none of instrument's provisions should be rendered meaningless). If there is ambiguity or doubt as to the intent, the covenant is to be strictly construed against the party seeking to enforce it in favor of the free and unrestricted use of the premises. See, e.g., Wilmoth, 734 S.W.2d at 657; Silver Spur Addition Homeowners v. Clarksville Seniors Apartments, 848 S.W.2d 772, 774 (Tex.App.--Texarkana 1993, writ denied)(ambiguity resolved in favor of least restrictive interpretation); Dempsey v. Apache Shores Property Owners Ass'n, Inc., 737 S.W.2d 589, 592 (Tex.App.--Austin 1987, no writ)(covenant construed in favor of grantee only when intent not ascertainable); Covered Bridge Condominium Ass'n, Inc. v. Chambliss, 705 S.W.2d 211, 214 (Tex.App.--Houston [14th Dist.] 1985, writ ref'd n.r.e.).

Neither party to this appeal asserts that the restrictive covenant at issue is ambiguous. Therefore, our goal is to determine whether the trial court was correct in finding that the objective intent of the covenant, or the intent expressed in the writing, was probably violated by the appellants' actions. Silver Spur Addition Homeowners, 848 S.W.2d at 774; Candlelight Hills Civic Ass'n, Inc. v. Goodwin, 763 S.W.2d 474, 477 (Tex.App.--Houston [14th Dist.] 1988, writ denied).

A residential use restriction generally does not prohibit the use of property for duplexes, apartments or condominiums. See MacDonald v. Painter, 441 S.W.2d 179, 182 (Tex.1969); Travis Heights Improvement Ass'n v. Small, 662 S.W.2d 406, 408 (Tex.App.--Austin 1983, no writ); Stephenson v. Perlitz, 537 S.W.2d 287, 289 (Tex.Civ.App.--Beaumont 1976, writ ref'd n.r.e.); Cuiper v. Wolf, 242 S.W.2d 830, 831 (Tex.Civ.App.--San Antonio 1951, no writ). The covenant at issue here, however, contains an additional sentence that clarifies the framers' intent in distinguishing between "residential" and "business" use for purposes of the covenant. This additional sentence provides that "[m]otel, tourist courts, and trailer parks shall be deemed to be a business use." In determining what the framers intended by adding this sentence, we look to the law defining residence.

Although the term "residence" is given a variety of meanings, residence generally requires both physical presence and an intention to remain. See Smith v. Board of Regents of the University of Houston System, 874 S.W.2d 706, 712 (Tex.App.--Houston [1st Dist.] 1994, writ denied)(citing Martinez v. Bynum, 461 U.S. 321, 330, 103 S.Ct. 1838, 1843, 75 L.Ed.2d 879 (1983)), cert. denied 514 U.S. 1111, 115 S.Ct. 1964, 131 L.Ed.2d 855 (1995). If a person comes to a place temporarily, without any intention of making that place his or her home, that place is not considered the person's residence. Slusher v. Streater, 896 S.W.2d 239, 243 (Tex.App.--Houston [1st Dist.] 1995, no writ).

The Texas Property Code draws a distinction between a permanent residence and transient housing, which includes rooms at hotels, motels, inns and the like. See Warehouse Partners v. Gardner, 910 S.W.2d 19, 23 (Tex.App.--Dallas 1995, writ denied); see also TEX. PROP.CODE ANN. § 92.152(a) (Vernon 1995). For purposes of the hotel occupancy tax, the Texas Tax Code defines hotel to include "a hotel, motel, tourist home, tourist house, tourist court, lodging house, inn, rooming house, or bed and breakfast." TEX. TAX CODE ANN. § 156.001 (Vernon Supp.1997). Although the venue statutes permit a defendant to have a residence in two or more counties, the residence must be occupied over a substantial period of time and must be permanent rather than temporary in order to qualify as a second residence. Howell v. Mauzy, 899 S.W.2d 690, 697 (Tex.App.--Austin 1994, writ denied).

Just as the foregoing cases and statutory provisions draw distinctions between temporary or transient housing and a residence, we believe the framers of the restrictive covenant intended to draw a similar distinction between residential and business use by adding the third sentence to paragraph six of the Reservations, Restrictions and Covenants. At least two of the activities listed as...

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