Stephenson v. Perlitz, No. 7706

• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas
• Writing for the Court: KEITH
• Citation: 537 S.W.2d 287
• Parties: William STEPHENSON et al., Appellants, v. Werner J. PERLITZ et ux., Appellees.
• Decision Date: 22 April 1976
• Docket Number: No. 7706

Page 287

537 S.W.2d 287 William STEPHENSON et al., Appellants,
v.
Werner J. PERLITZ et ux., Appellees. No. 7706. Court of Civil Appeals of Texas,
Beaumont. April 22, 1976.
Rehearing Denied May 13, 1976.

Scott R. Kidd, Austin, for appellants.

Thomas Watkins, Austin, for appellees.

KEITH, Justice.

Pursuant to directions of our Supreme Court, we again review this appeal involving a suit for the enforcement of restrictive covenants in a deed. The underlying facts have been stated in the prior opinions: (1) of this Court reported in Tex.Civ.App., 524 S.W.2d 786; and (2) of the Supreme Court reported in Tex.Civ.App., 532 S.W.2d 954. We refer to these opinions for the facts giving rise to the litigation.

It is now clearly the law in Texas that a duplex dwelling cannot be erected upon a lot which has a restriction providing that the premises shall be used for residence purposes and only one residence erected thereon. 532 S.W.2d at 955.

But, under the language found in Cowling v. Colligan, 158 Tex. 458, 312 S.W.2d 943, 945 (1958), a court of equity may refuse to enforce a residential-only restriction under at least two circumstances:

'(B)ecause of the acquiescence of the lot owners in such substantial violations within the restricted area as to amount to an abandonment of the covenant or a waiver of the right to enforce it.'

'(B)ecause there has been such a change of conditions in the restricted area or surrounding it that it is no longer possible to secure in a substantial degree the benefits

Page 289

sought to be realized through the covenant.'

The trial court filed findings of fact and conclusions of law which supported the denial of the equitable relief upon each of the grounds set out in Cowling, supra. ¹ In addition to the specific findings quoted in the margin, the trial court found that there will be no economic or aesthetic damage to plaintiffs by the construction of the duplex. It concluded that enforcement of the restriction would be inequitable and that the violation of the restriction does not 'materially affect the Plaintiffs.'

Plaintiffs attack the findings and conclusions of the trial court by appropriate no evidence and insufficient evidence points. Findings of fact are not conclusive on appeal when, as in this case, a statement of facts appears in the record. Swanson v. Swanson, 148 Tex. 600, 228 S.W.2d 156, 158 (1950); Rosetta v. Rosetta, 525 S.W.2d 255, 260 (Tex.Civ.App.--Tyler 1975, no writ). And, findings of fact are binding on the appellate court only if supported by evidence of probative force.

In Stewart v. Welsh, 142 Tex. 314, 178 S.W.2d 506, 508 (1944), the Court recognized the rule that an owner may waive his right to insist upon compliance with the restriction; but, the Court continued:

'(H)e is not precluded from enforcing a restriction against an owner whose violation of it materially affects him, by failing to complain of another's violation which does not materially affect him in the enjoyment of his property or which is merely trivial.' ²

This rule is well recognized and has been applied in other cases, see, e.g., Ortiz v. Jeter, 479 S.W.2d 752 (Tex.Civ.App.--San Antonio 1972, writ ref'd n.r.e.); Davis v. Hinton, 374 S.W.2d 723 (Tex.Civ.App.--Tyler 1964, writ ref'd n.r.e.); Barham v. Reames, 366 S.W.2d 257 (Tex.Civ.App.--Fort Worth 1963, no writ); Zent v. Murrow, 476 S.W.2d 875 (Tex.Civ.App.--Austin 1972, no writ).

Moreover, the burden was on the defendants to prove that the prior violations 'were substantial in nature and materially affected the use of plaintiff's land for residential purposes.' Ortiz v. Jeter, supra (479 S.W.2d at 757).

We have reviewed the evidence carefully and the following resume serves to put the contentions into proper perspective: At most, there were no more than nine violations of the one-residence restriction in the entire subdivision...