Sills v. Excel Services, Inc.

• Decision Date: 23 April 1981
• Docket Number: No. 1369,1369
• Citation: Sills v. Excel Services, Inc., 617 S.W.2d 280 (Tex. Ct. App. 1981)
• Parties: Morris E. SILLS, et al., Appellants, v. EXCEL SERVICES, INC., et al., Appellees.
• Court: Texas Civil Court of Appeals

Page 280

617 S.W.2d 280

Morris E. SILLS, et al., Appellants, v. EXCEL SERVICES, INC., et al., Appellees.

No. 1369.

Court of Civil Appeals of Texas, Tyler.

April 23, 1981.

Larry W. Starr, Sharp, Ward, Ross, McDaniel & Starr, Longview, for appellants.

John M. Smith, Longview, for appellees.

SUMMERS, Chief Justice.

This is an appeal from an order of the trial court denying a temporary injunction and dissolving a temporary restraining order previously issued.

Appellants (plaintiffs below) as homeowners in Oak Forest County Club Estates Unit No. 1 (Oak Forest Unit No. 1), a subdivision of the City of Longview, instituted this suit seeking to enforce single family residential restrictive covenants upon a 4.22-acre tract alleged to be a part of said subdivision and to restrain and enjoin the construction of an apartment complex on said tract.

Appellees (defendants below) are the owners and builders of an apartment project on said 4.22-acre tract with plans and a building permit for the construction of a 152-unit apartment complex on said tract. Preliminary excavation work for said project had commenced when the trial court issued its temporary restraining order prohibiting any further construction work on such land. After a hearing, the trial court rendered an order denying a temporary injunction and dissolving the temporary restraining order. From this order appellants appeal.

We affirm.

Oak Forest Unit No. 1 was subdivided by Zack E. Williams, Trustee, who was developing such property on behalf of himself and nineteen other individuals. It was originally part of a 501.62-acre tract of land described in a deed dated April 26, 1972, from S. R. Thrasher, Jr., to Zack E. Williams, Trustee. There are no restrictions contained in such conveyance, and there is no evidence of any restrictive covenants affecting such 501.62-acre tract of land at the time of such conveyance.

In developing the acreage obtained from Thrasher, Mr. Williams secured the engineering services of Hart Engineering Company and proceeded first to lay out the golf course for the Oak Forest Country Club. As a part of this work, the engineering firm placed iron stakes in the ground as monuments to delineate the limits of the golf course area. Sometime later, Mr. Williams had the same engineering firm perform additional surveying work and prepare for him the original plat for the Oak Forest Unit No. 1 residential subdivision, which plat, dated April 2, 1976, was filed by him in the office of the County Clerk of Gregg County, Texas, on July 28, 1977, identifying the subdivision as Oak Forest Estates Unit No. 1, 28.02 acres. Subsequently, after discovery of another "Oak Forest Estates" subdivision in Gregg County, Mr. Williams filed a second plat for record on August 10, 1977, under County Clerk's File No. 12023, changing the identification of the subdivision to Oak Forest Country Club Estates Unit No. 1, 28.02 acres. Thereafter, a third plat ¹ of the subdivision was filed for record by developer Williams on September 22, 1977, showing a plat revision dated September 20, 1977, in which the acreage in Oak Forest Country Club Estates Unit No. 1 was reduced from 28.02 acres to 27.96 acres to reflect a small triangular piece taken off Lot 19 for a green on the golf course.

After filing the second plat for record, the developer, Zack E. Williams, Trustee, filed for record with the County Clerk on August 18, 1977, a declaration of restrictive covenants pertaining to Oak Forest Country Club Estates Unit No. 1 "as shown by Plat thereof filed under Clerk's File No. 12,203 (sic) in the Deed Records of Gregg County, Texas, to which plat and record thereof reference is here made for all purposes" (Emphasis added) and providing in part that:

ZACK WILLIAMS, TRUSTEE, desires to create a uniform plat of development for Oak Forest Unit No. 1, and subject each lot therein to various restrictions so as to effect a uniform plan of development (Emphasis added):

... Each of such restrictions shall be and is hereby imposed upon each lot or parcel of land in said subdivision as shown by the plat thereof, shall constitute covenants running with the land and shall inure to the benefit of Zack Williams, Trustee, his successors and assigns, and each purchaser, by virtue of accepting a contract or a deed covering said property, shall be subject to and bound by these restrictions, covenants and conditions.

III

(1) All lots or parts of lots shall be used for single family residential purposes only and no duplex or multiple residential structure shall be placed thereon. Only one structure shall be constructed on each lot.

(2) ... the use of any lot for any type of commercial usage is expressly prohibited.

XIV

... No deviation from any of these restrictions shall be permitted except by special written permission of Zack Williams, Trustee.

XV

All structures upon all lots shall be constructed so as to front on the street upon which such lot faces, except upon permission obtained in writing from Zack Williams, Trustee. This also refers to Lots 1 and 23, being the corner lots of the subdivision....

Shown on each of the recorded plats were twenty-three (23) lots, numbered 1 through 23, in Block 1095; also a tract of 4.22 acres labeled "Future Development" owned by Zack Williams, Trustee, and a portion of the McCrede 59 acres and the Northcutt 37.5-acre tract. The 4.22 acres were conveyed by Zack Williams, Trustee, to Excel Services, Inc., as part of a 7.28-acre tract by deed dated January 25, 1979. Said 7.28-acre tract is now under contract of sale from Excel Services, Inc. and Bill Brewer, Trustee, to Paul E. Thomas who with his associates as appellees have plans for the construction of the 152-unit apartment complex on said 7.28-acre tract.

Appellants predicate their appeal on a single point of error asserting that the trial court abused its discretion in denying appellants a temporary injunction to preserve the status quo pending trial on the merits of appellants' petition to enforce the deed restrictions of Oak Forest Unit # 1, in light of the commencement of work on a large apartment project in violation of the "single family residential purposes" clause of the recorded restrictions of said subdivision.

Appellants purchased various lots within Oak Forest Country Club Estates Unit No. 1. These purchases were subsequent in time to the filing of the recorded plat referred to in their respective deeds. Appellants assert that the 4.22 acres, labeled on the plats as "Future Development" and on which the apartment construction has commenced, are in the Oak Forest Country Club Estates Unit No. 1 and are subject to its restrictions. Appellees contend that the 7.28 acres (which includes the 4.22-acre tract) are not in Oak Forest Country Club Estates Unit No. 1 and are not subject to its restrictions. We agree with appellees' contention.

At a hearing upon the request for a temporary injunction the only question before the trial court is whether the applicant is entitled to preservation of the status quo pending trial on the merits. Houston Belt & T. Ry. C. v. Texas & New Orleans R. Co., 155 Tex. 407, 289 S.W.2d 217, 219 (1956). To establish a right to the issuance of a temporary injunction, the applicant must show a probable right and a probable injury. Transport Co. of Texas v. Robertson Transports, 152 Tex. 551, 261 S.W.2d 549, 552 (1953). On appeal the reviewing court is limited in its consideration as to whether the trial court abused its discretion in making the foregoing determination. The appellate court may not substitute its judgment for that of the trial court. Davis v. Huey, 571 S.W.2d 859, 862 (Tex. 1978); Texas Foundries v. International Moulders & F. Wkrs., 151 Tex. 239, 248 S.W.2d 460, 463 (1952).

Where, as here, the record before us is without findings of fact or conclusions of law, the well-settled rule is that the appellate court must affirm the judgment rendered by the trial court if it can be upheld on any legal theory supported by the record. Davis v. Huey, supra at page 862; Seaman v. Seaman, 425 S.W.2d 339, 341 (Tex. 1968); ...