Schoenhals v. Close
| Citation | 451 S.W.2d 597 |
| Decision Date | 09 February 1970 |
| Docket Number | No. 8044,8044 |
| Parties | Dave SCHOENHALS and wife, Mrs. Dave Schoenhals, et al., Appellants, v. G. R. CLOSE and wife, Ann Lee Close, Appellees. |
| Court | Court of Appeals of Texas. Court of Civil Appeals of Texas |
Linn, Helms & Countiss and Richard N. Countiss, Spearman, for appellants.
Lemon, Close & Atkinson and R. D. Lemon, Perryton, for appellees.
This is an appeal from a temporary injunction enjoining the appellants from opening a beauty shop in violation of a restrictive covenant.
Plaintiff-appellants Mr. and Mrs. G. R. Close and defendants Schoenhals own adjoining lots in a residential section of Perryton, Texas. Each of the deeds to their respective lots derived from a common source and each contained a residential restriction and covenant which stated 'that there shall never be erected upon said land hereinbefore described no improvements save and except improvements to be used for residential purposes * * *.'
In late 1959 appellant Schoenhals converted the inside of his garage into a beauty shop. In January of 1960 Schoenhals' daughter, appellant Gloria Griggs, opened the beauty shop for commercial operation. In October of 1960, the Closes purchased the house next to the Schoenhals' lot. At that time the beauty shop was in operation.
The beauty shop remained in commercial operation until some time in 1964. From 1964 until July 1969 appellant Gloria Griggs did some work in the beauty shop for some ten members of her church on a charitable basis. During this period when the commercial activity surrounding the beauty shop had ceased, plaintiff Close made over $30,000.00 in improvements to his property. In July, 1969, appellant Gloria Griggs made arrangements to resume commercial operations of the beauty shop. Three operators rented space, the drying chairs were replaced, and a business telephone was installed. When appellees learned of Gloria Griggs' intentions to resume the commercial operation of the beauty shop, they brought this suit. The trial court granted a temporary injunction and appellants have appealed to this court on two grounds. First, they contend that the four year statute of limitations applies in this case, Art. 5529, Vernon's Ann.Tex.Rev.Civ.St.; and that the appellees' cause of action is thus barred. Secondly, appellants contend that appellees' cause of action is barred by laches.
The four year statute of limitations does apply to violations of a restrictive covenant. Keene v. Reed, 340 S.W.2d 859 (Tex.Civ.App., writ ref'd); Arrington v. Cleveland, 242 S.W.2d 400 (Tex.Civ.App., writ ref'd). However, we have concluded the four year statute is not determinative in this case.
Gloria Griggs began to operate a beauty shop in 1960 in the appellant Schoenhals' garage in violation of the restrictive covenant. At that time the neighbors had a legal right to enforce the restrictive covenant and to prevent the operation of the beauty shop. In 1964, more than four years after the opening of the beauty shop, appellant Griggs ceased the commercial operation. At the time she ceased the commercial operation, the statute of limitation had run and she had, at that time, a right to continue the operation of the beauty shop. From 1964 appellant Gloria Griggs conducted a limited amount of charity work in the garage. If the restrictive covenant were in effect during that period, the charitable work would not have been in violation of the restrictive covenant, and the neighbors would not have had a cause of action. A small amount of non-profit work done inside one's home or garage would not violate a residential restrictive covenant. Allen v. Winner, 389 S.W.2d 599 (Tex.Civ.App., ref. n.r.e.).
When appellant Gloria Griggs resumed her commercial operation in July of 1969, the neighbors once again had a cause of action and statute of limitations began to run. The filing of this suit within the ten days after learning of appellants' plans would not raise a question of laches with respect to the opening in July, 1969.
The question which must be decided in this case is whether a party who acquires a right through the statute of limitations to operate a commercial enterprise in contravention of a restrictive covenant may lose that right by abandonment?
Ordinarily, unless a restrictive covenant is removed either by the agreement of...
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Karner v. Roy White Flowers, Inc.
...again became enforceable because the applicability of a covenant is renewed once the violation ceases. Plaintiffs' cite Schoenhals v. Close, 451 S.W.2d 597 (Tex.App.1970) to support their In Schoenhals, the appropriate statute of limitations was four (4) years, and the plaintiffs brought an......
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Fox v. O'Leary
...Woods Club, Inc., No. 03-03-00310-CV, 2006 WL 263589, at *5 (Tex. App.—Austin Feb. 2, 2006, pet. denied) (mem. op.); Schoenhals v. Close, 451 S.W.2d 597, 599 (Tex. Civ. App.—Amarillo 1970, no writ) (limitations period revived when violation of restrictive covenant ceased). Even if O'Leary's......
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Park v. Baxter
...four-year statute of limitation, Art. 5529, Tex.Rev.Civ.Stat.Ann., is controlling in suits to enforce restrictive covenants. Schoenhals v. Close, 451 S.W.2d 597 (Tex.Civ.App.-Amarillo 1970, no writ history); City of Fort Worth v. Johnson, 388 S.W.2d 400 (Tex.1964); Keene v. Reed, 340 S.W.2d......
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Fox v. O'Leary
...Woods Club, Inc., No. 03-03-00310-CV, 2006 WL 263589, at *5 (Tex. App.—Austin Feb. 2, 2006, pet. denied) (mem. op.); Schoenhals v. Close, 451 S.W.2d 597, 599 (Tex. Civ. App.—Amarillo 1970, no writ) (limitations period revived when violation of restrictive covenant ceased). Even if O'Leary's......