Townplace Homeowners' Ass'n, Inc. v. McMahon

• Citation: 594 S.W.2d 172
• Decision Date: 10 January 1980
• Docket Number: No. 17509,17509
• Parties: TOWNPLACE HOMEOWNERS' ASSOCIATION, INC. et al., Appellants, v. Don E. McMAHON et al., Appellees. (1st Dist.)
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 172

594 S.W.2d 172

TOWNPLACE HOMEOWNERS' ASSOCIATION, INC. et al., Appellants, v. Don E. McMAHON et al., Appellees.

No. 17509.

Court of Civil Appeals of Texas, Houston (1st Dist.).

Jan. 10, 1980.

Rehearing Denied Feb. 14, 1980.

Morris & Campbell, Rhett G. Campbell, Houston, for appellants.

Butler, Binion, Rice, Cook & Knapp, Norman J. Riedmueller, J. Sidney Crowley, Tom Alexander, Houston, for appellees.

Before COLEMAN, C. J., and DOYLE and WALLACE, JJ.

DOYLE, Justice.

Townplace Homeowners' Association, Inc., individually, and J. Edward Scott and Burt C. Holdsworth, in behalf of themselves and all others similarly situated, (appellants) appeal the decision of the trial court based upon a jury verdict denying enforcement of restrictive covenants involving a townhome on Lot 17, Townplace Addition, Section One, Houston, Texas, owned by Karen McMahon Wharton and built by contractors, Don E. McMahon and Ed McMahon Interest, Inc. (appellees). Individual appellees are related to each other with Don E. McMahon being the father of Karen and Ed.

Appellants claim that they are entitled to an injunction against appellees based upon the jury's finding that the townhome was built in a manner constituting a distinct or substantial variance from the plans approved by the Architectural Control Committee (ACC) of the subdivision, regardless of any equities in appellees. Appellees rely on the defense of laches, impossibility of compliance and the balancing of equities.

We affirm.

In 1976, appellees purchased lot 17 in the subdivision and in May 1977, they decided to build a home on their property. In accordance with the restrictive covenants of this subdivision, appellees submitted blueprints for their home to an architectural control committee for written approval. When appellees submitted their plans, the architectural control committee was composed of Edward Scott, Lloyd Coker, and Kent Turner. These three people had replaced an earlier committee that was specifically named in the restrictive covenants and the evidence is disputed as to the validity of electing these subsequent committee members. It is undisputed, however, that these plans were approved with a notation written on the face of the plans stating, "wood siding, match exist."

This notation on the face of appellees' plans is the basis for the controversy in this suit. Evidence adduced at the hearing showed the majority of the homes in this subdivision have a wood siding known as horizontal 117D yellow pine siding, while some have stucco or brick siding. The pool house and gates of the addition had the same vertical fir siding as was substituted by the appellees on their townhome. The notation on appellees' plan did not specifically state 117D yellow pine siding, however they understood the words "wood siding, match exist" to refer to such siding.

Appellees attempted to get 117D yellow pine siding, but were unable to obtain sufficient quantities.

During the first week of July, 1977, appellant Scott noticed the vertical siding on appellees' garage and voiced his disapproval. On July 20, after appellees had substantially completed the siding on the townhome, appellant Scott formally objected in writing to the siding and stated appellees could not substitute the vertical fir siding for 117D pine siding. Effective July 12, Lloyd Coker and Kent Turner resigned as members of the architectural control committee, and were replaced on July 18, by appellant Burt C. Holdsworth and Robert L. Sonfield, Jr. Correspondence between the parties could not settle their differences and appellants instituted this suit.

Appellants, on behalf of themselves and a class of persons composed of the homeowners in this addition, sought injunctive relief and damages. Both parties filed numerous motions and orders which are not necessary to this appeal. There is however, a point of error regarding the class action status of this litigation. On October 17, 1977, Judge Paul Pressler, then of the District Court, certified this suit as a class action pursuant to Rule 42(b) (1), (2), (3) and (4), T.R.C.P. Members of the class were informed of this suit and extended the opportunity to exclude themselves from the suit. Five members of the class opted out. Prior to final trial of this suit, Judge David Hittner decertified the class and dismissed all unnamed parties to the suit. The case proceeded to a trial before a jury only as to the named plaintiffs. Based upon the jury's answers to special issues and such as the court was authorized to make by law, Judge Duke Godard, entered a final judgment that appellants be denied injunctive relief and that they take nothing against appellees.

Appellants present two points of error, the first of which contends the trial court erred in not granting their motion for entry of judgment and in submitting nine of the eleven special issues answered by the jury.

As a general rule an assignment that the trial court erred in overruling a motion for judgment is too general for consideration by this court. Clay v. Clay, 550 S.W.2d 730 (Tex.Civ.App. Houston (1st Dist.) 1977, no writ). In addition, this point is multifarious in that appellants object to nine different special issues, lodging as many as three objections to certain issues, thereby asserting approximately fifteen objections in a single point of error. City of San Antonio v. Mendoza, 532 S.W.2d 353 (Tex.Civ.App. San Antonio 1975, writ ref'd n.r.e.). However, pursuant to Rule 422, we will consider the point as properly raised.

Appellants first contend that they proved appellees failed to obtain approval of the ACC to substitute vertical siding for the required 117D siding in violation of a restrictive covenant contained in their deed, so appellants are entitled to injunctive relief based on the jury's finding that there was a distinct or substantial variance from the approved plans.

The issue before us is more accurately stated to be not whether the appellees made a distinct or substantial variance from their approved plans, but whether appellees' substitution of vertical fir siding for the prescribed 117D pine siding constituted a distinct or substantial breach of the deed restrictions. In this injunction suit, the right of a jury trial prevails as in all equitable actions, with only ultimate fact issues being determined. Alamo Title Co. v. San Antonio Bar Association, 360 S.W.2d 814 (Tex.Civ.App. Waco 1962, writ ref'd n.r.e.). Appellees, having pleaded substantial compliance with the restrictions, laches, unavailability of required materials and the right to have the equities balanced, were entitled to prove such ultimate issues as a matter of defense and have special issues submitted to the jury thereon.

After the jury had answered the defensive special issues submitted by appellees, appellants filed a motion for entry of judgment, attacking the action of the court in entering a take nothing judgment against them based on the jury verdict. Since their points of error are based on denial of their motion for judgment n.o.v., all attacks on these issues are "no evidence" points. Chemical Cleaning Inc. v. Chemical Cleaning and Equipment Service, Inc., 462 S.W.2d 276 (Tex.1970); Fox v. Boese, 566 S.W.2d 682 (Tex.Civ.App. Houston (1st Dist.) 1978, writ ref'd n.r.e.); Travelers Insurance Company v. Williams, 378 S.W.2d 110 (Tex.Civ.App. Amarillo 1964, writ ref'd n.r.e.). Accordingly, we are required to review the evidence and the reasonable inferences to be drawn therefrom most favorably in support of the jury's finding.

In summary, the appellees adduced the following testimony in support of their issues:

The plans for Mrs. Wharton's townhome had been approved on May 13, 1977. By June 17, installation of the siding had begun. For two or three weeks, the builder had been looking for grade D yellow pine siding, but this type of siding was not available at the time.

At that time the gates to the Addition and the common pool house had vertical fir siding. This suggested to the builder that vertical fir siding might be used as a substitute for the...