Stergios v. Forest Place Homeowners' Ass'n, Inc.

• Citation: 651 S.W.2d 396
• Decision Date: 06 May 1983
• Docket Number: No. 05-82-00006-CV,05-82-00006-CV
• Parties: Angelo STERGIOS, Appellant, v. FOREST PLACE HOMEOWNERS' ASSOCIATION, INC., Appellee.
• Court: Texas Court of Appeals

Page 396

651 S.W.2d 396

Angelo STERGIOS, Appellant, v. FOREST PLACE HOMEOWNERS' ASSOCIATION, INC., Appellee.

No. 05-82-00006-CV.

Court of Appeals of Texas Dallas.

May 6, 1983.

Diamond J. Pantaze, Dallas, for appellant.

Ronald L. McKinney, Dallas, for appellee.

Before GUITTARD, C.J., and STOREY and VANCE, JJ.

GUITTARD, Chief Justice.

Forest Place Homeowners' Association obtained a mandatory injunction requiring Angelo Stergios and Jack Wojewski to remove a "composition roof" from a house under construction. The roof was alleged to violate a restrictive covenant prohibiting composition roofs in the Forest Place addition. The trial was before the court without a jury, and no findings of fact were made or requested. We hold that the evidence is sufficient to support the court's implied findings that use of the roofing in question is a distinct and material breach of the covenant and that the covenant is not void for ambiguity or as contrary to public policy. We also hold that the suit is not barred by laches, waiver, or estoppel.

In the absence of findings of fact, we must affirm the judgment if it can be upheld on any legal theory supported by the evidence. Bishop v. Bishop, 359 S.W.2d 869, 870 (Tex.1962). All fact findings necessary to support the judgment must be implied. Goodyear Tire & Rubber Co. v. Jefferson Construction Co., 565 S.W.2d 916, 918 (Tex.1978).

"Distinct and Substantial" Violation

In the light of these rules, we consider defendant's contention that there is no evidence to support an implied finding that defendants committed a distinct and substantial violation of the restrictive covenant, and, in the alternative, that this implied finding is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust.

The recorded covenants and restrictions applicable to buildings in Forest Place addition included the following: "No composition roof shall be allowed on any dwelling." When this controversy arose, defendant Wojewski was in the process of building a house in the addition on a lot owned by defendant Stergios. One of the neighbors was A.J. Beck, president of Forest Place Homeowner's Association. When Wojewski began installation of the roof, Beck noticed a stack of roofing material on the Stergios lot. Beck recognized the material as "composition" roofing and immediately contacted both Wojewski and Stergios, advising that the roof was in violation of the restriction.

Beck testified that "composition" roofing, as opposed to natural materials, is a man-made aggregate of materials composed of asbestos fiber, glass, or granules of one type or another. Other types of roofing, he said, would include shakes, shingles, seamed copper, galvanized metal, aluminum, and slate. He identified a specimen of discarded material he picked up from the Stergios lot as a piece of composition roofing material. The specimen was introduced in evidence and is included in our record.

The association also presented the testimony of a roofing contractor, Garland Weatherford. Weatherford testified that a "composition roof" is also known as an asphalt shingle roof and that the specimen in question was made of asphalt with an underlying layer of organic felt composed of rags or wood. On cross-examination he conceded that the specimen is made with fiberglass rather than organic felt and that it is high-quality roofing, superior to wood shingles from the point of view of fire safety.

According to Weatherford, a galvanized metal roof is even more fire resistant, but would cost twice as much and would require a change in the supporting structures. He recognized aluminum shakes and tile as other alternatives, but admitted that they also would be more expensive and would require changes in the substructure.

Defendant Wojewski testified that the building, which he designed, had a shed roof with a relatively low pitch inappropriate for wood shingles. He would not recommend a metal roof because of the cost, increased maintenance, poor energy conservation, and lack of harmony with other houses in the addition. According to Wojewski, the roof in question cannot be seen from the street, but can be observed from one side. After a year, he said, the roof looks the same from a distance as wood shingles because the gray color is similar to that of weathered wood.

In support of their contention that the evidence fails to establish a distinct and substantial breach of the restriction, defendants rely on Townplace Homeowners' Ass'n v. McMahon, 594 S.W.2d 172 (Tex.Civ.App.--Houston [1st Dist.] 1980, writ ref'd n.r.e.), and Hoyt v. Geist, 364 S.W.2d 461 (Tex.Civ.App.--Houston 1963, no writ), in which judgments denying injunctive relief were upheld. In Townplace, the jury found that the use of vertical fir siding rather than horizontal yellow pine siding did not constitute a material and substantial violation of the restrictions in question. In Hoyt, the appellate court seems to have based its decision on an implied finding that the defendant's use of the property for business purposes was incidental to its use as a residence. Neither opinion can be taken as a holding that the same evidence would not have supported injunctive relief if contrary findings had been made, as in the present case.

We need not consider whether a denial of injunctive relief, as in the cases cited, would have been supported by the evidence in this record. Our review of the evidence summarized above and our examination of the specimen of roofing material included in this record have convinced us that the evidence raises at least a fact issue as to whether use of the material in question was a distinct and substantial breach of the restriction. The fact that in this instance the material used may have been preferable to other materials for one reason or the other is not controlling so long as the restriction itself has a reasonable basis. Neither is the difficulty of observing the roof from the street or recognizing the material at a distance a controlling circumstance. The evidence shows that the roof is unquestionably a "composition roof" and covers the entire structure. Consequently, we hold that the evidence is sufficient, both legally and factually, to support the trial court's implied finding of a distinct and substantial violation of the restriction.

Injury or Damage

Defendants also complain that the association failed to show any injury or damage resulting from the violation. We conclude that the association has no such burden. When a substantial breach is established, no particular damages or injury to the plaintiff need be shown. Ireland v. Bible Baptist Church, 480 S.W.2d 467, 469-70 (Tex.Civ.App.--Beaumont 1972), cert. denied, 411 U.S. 906, 93 S.Ct. 1529, 36 L.Ed.2d 195 (1973); Protestant Episcopal Church Council v. McKinney, 339 S.W.2d 400, 403 (Tex.Civ.App.--Eastland 1960, writ ref'd).

Public Policy Concerning Wood Shingles

Defendants further contend that the restriction is void as against the public policy of the State, as expressed in article 1293c, Texas Revised Civil Statutes (Vernon Supp.1983) which provides:

To the extent that a deed restriction applicable to a structure on residential property requires the use of a wood shingle roof, it is void.

Defendants recognize that this statute was not enacted until after the roof in question was built. They insist, however, that the practical effect of the judgment would be to require installation of a wood-shingle roof contrary to the policy underlying the statute, since a metal roof or any other alternative would have practical disadvantages under the circumstances revealed by this record. We cannot agree. The practical disadvantages of other alternatives to wood shingles for a structure of a particular design do not establish that the restriction in question is void. Neither article 1293c nor the policy behind it can properly be extended that far. Moreover, whether the practical effect of enforcing the restriction in this case will be installation of a wood-shingle roof is not so clear from the evidence as to be established as a matter of law. Consequently, we cannot say that enforcement of the restriction is against the public policy declared in article 1293c.

Ambiguity of "Composition Roof"

Defendant also contend that the term "composition" is ambiguous and that established rules of construction require it to be interpreted so as to allow free use of the property. We cannot agree. It is clear from the evidence that a roof composed principally of asphalt with a fiberglass base, such as the specimen in evidence here, is generally understood in the roofing trade to be a "composition roof." There is no evidence that the term has more than one meaning as applied to the facts of this case.

For the same reason we reject defendants' contention that the mandatory injunction ordering removal of "the composition roof" is too vague to be enforced under rule 383 of the Texas Rules of Civil Procedure. The identity of the particular roof to be removed is...