Glenwood Acres Landowners Association, Inc. v. Michael J. Alvis--Appeal from 115th District Court of Upshur County

OPINION HEADING PER CUR

NO. 12-07-00072-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

GLENWOOD ACRES LANDOWNERS

ASSOCIATION, INC., APPEAL FROM THE 115TH

APPELLANT

V. JUDICIAL DISTRICT COURT OF

MICHAEL J. ALVIS,

APPELLEE UPSHUR COUNTY, TEXAS

 

MEMORANDUM OPINION

Glenwood Acres Landowners Association, Inc. appeals the trial court s denial of its temporary injunction attempting to have Michael J. Alvis remove his mobile home from its subdivision. In six issues, Glenwood Acres contends the trial court abused its discretion in denying its temporary injunction. We affirm.

Background

In 1976, Glenwood Acres recorded a document entitled Restrictions, Covenants and Conditions Applicable to Glenwood Acres Phase M-4 in the deed records of Upshur County, Texas. This document included the following sentence:

Prior to being placed on the lot, all camper trailers, motor homes and mobile homes must be approved as to condition and age in writing by the developer, The Association, or its nominees, and must either have an operational self contained sanitation system or be connected to an adequate sewerage system.

 

On September 1, 2006, Alvis moved a mobile home onto a lot in Glenwood Acres that he had purchased a week and a half earlier from his father, Walter Cade. Alvis had neither sought nor received approval to move the mobile home onto the lot. The evidence showed that, in the weeks following September 1, Alvis made significant improvements to the mobile home and lot. Alvis installed a new septic system, a water meter, and mobile home skirting. He installed new plumbing and added a new roof coat and a porch to the mobile home. He also repainted the mobile home. These improvements cost Alvis more than $8,000.00.

On December 1, Glenwood Acres filed its original petition for injunctive relief against Alvis. It asked the trial court to order Alvis to remove his mobile home. Further, it sought to enjoin him and any others from placing any mobile homes in the subdivision without the written approval of the board of Glenwood Acres.

Following a hearing, the trial court denied Glenwood Acres s request for a temporary injunction. Glenwood Acres requested findings of fact and conclusions of law, which were filed by the trial court. Glenwood Acres timely appealed the denial of the temporary injunction to this court.

Standard of Review

The purpose of a temporary injunction is to preserve the status quo of the litigation s subject matter pending a trial on the merits. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002). As such, the only question before the trial court is whether the applicant is entitled to preservation of the status quo pending trial on the merits. Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex. 1993). To obtain a temporary injunction, the applicant must plead and prove three specific elements: 1) a cause of action against the defendant; 2) a probable right to the relief sought; and 3) a probable, imminent, and irreparable injury in the interim. Butnaru, 84 S.W.3d at 204; see Walling, 863 S.W.2d at 57.

The decision to grant or deny a temporary writ of injunction lies within the sound discretion of the trial court and is subject to reversal only for a clear abuse of that discretion. Butnaru, 84 S.W.3d at 204. The trial court abuses its discretion when it misapplies the law to the established facts or when the evidence does not reasonably support the conclusion that the applicant has a probable right of recovery. Khaledi v. H.K. Global Trading, Ltd., 126 S.W.3d 273, 280 (Tex. App. San Antonio 2003, no pet.) (citing State v. Sw. Bell Tel. Co., 526 S.W.2d 526, 528 (Tex. 1975)). The trial court does not abuse its discretion if some evidence reasonably supports the trial court s decision. Butnaru, 84 S.W.3d at 211.

 

When, as here, specific findings of fact and conclusions of law are filed and a reporter s record is before the appellate court, the findings will be sustained if there is evidence to support them, and the appellate court will review the legal conclusions drawn from the facts found to determine their correctness. TMC Worldwide, L.P. v. Gray, 178 S.W.3d 29, 36 (Tex. App. Houston [1st Dist.] 2005, no pet.).

Waiver

In its first issue, Glenwood Acres contends that the trial court failed to apply the legal presumption that it had acted reasonably in its exercise of authority to enforce restrictive covenants pursuant to Section 202.004(a) of the Texas Property Code. Section 202.004(a) reads as follows:

An exercise of discretionary authority by a property owners association or other representative designated by an owner of real property concerning a restrictive covenant is presumed reasonable unless the court determines by a preponderance of the evidence that the exercise of discretionary authority was arbitrary, capricious, or discriminatory.

Tex. Prop. Code Ann. 202.004(a) (Vernon 2007).

A presumption is not evidence but rather a rule of procedure that is overcome when positive evidence to the contrary is introduced. See Green v. Ransor, Inc., 175 S.W.3d 513, 516 (Tex. App. Fort Worth 2005, no pet.). The presumption disappears when evidence to the contrary is introduced. See Republic Nat l Life Ins. Co. v. Heyward, 536 S.W.2d 549, 558 (Tex. 1976). Here, Alvis put on evidence that there had been a number of mobile homes placed upon lots in Glenwood Acres without the approval of the board. Further, there was unrebutted testimony that, even after the new board came into office on February 11, 2006, it had allowed mobile homes to be placed upon lots in Glenwood Acres without any approval or authorization. Thus, Alvis presented evidence to rebut the presumption Glenwood Acres relies upon.

Glenwood Acres s first issue dovetails with its fourth and sixth issues. In issue four, it contends that the trial court erred in refusing to make a finding that Alvis had blatantly breached its restrictive covenants. In its sixth issue, Glenwood Acres contends that the trial court erred in making a finding of fact that the current board of Glenwood Acres, elected on February 11, 2006, had continued to waive the restrictive covenants as its predecessor boards had done. To establish waiver under the facts of this case, Alvis had the burden to show that Glenwood Acres voluntarily and intentionally relinquished its right to enforce the restrictive covenant requiring subdivision lot owners to get the approval of the board of Glenwood Acres before placing a mobile home on a Glenwood Acres lot. See Oldfield v. City of Houston, 15 S.W.3d 219, 226 (Tex. App. Houston [14th Dist.] 2000, pet. denied). To meet this burden, Alvis had to show that the violations then existing were so great as to leave the mind of the average man to reasonably conclude that the restriction in question has been abandoned and its enforcement waived. Id. at 226-27. Among the factors to be considered by the average man are the number, nature, and severity of the then existing violations, any prior acts of enforcement of the restriction, and whether it is still possible to realize to a substantial degree the benefits intended through the covenant. Id. at 227.

Here the evidence showed that Alvis s father, Walter Cade, had placed thirteen mobile homes in the subdivision without the approval of any board. One of these mobile homes had been placed on a Glenwood Acres lot after the new board s election. There was no evidence in the record to show when, if ever, the board at Glenwood Acres had actually required approval before a mobile home was placed on one of the subdivision s lots. Cade testified that he had been a board member for Glenwood Acres from 1998 through 2000 and that this restriction had never been enforced. Evidence showing multiple violations of a restrictive covenant in a subdivision is more than sufficient to uphold a trial court s finding that the restrictive covenant has been abandoned. See Tanglewood Homes Ass n v. Henke, 728 S.W.2d 39, 43 (Tex. App. Houston [1st Dist.] 1987, writ ref d n.r.e.). We hold that the trial court did not abuse its discretion in finding the facts that allowed it to make a conclusion of law that Glenwood Acres had abandoned the restriction. Glenwood Acres s issues one, four, and six are overruled.

Balancing of Equities

In its second issue, Glenwood Acres contends that there was insufficient evidence for the trial court to make a finding of fact that Glenwood Acres had not suffered injuries that would allow it to obtain a temporary injunction. In its fifth issue, Glenwood Acres contends that the trial court erred in determining the harm in denying the injunction would outweigh the potential harm that Glenwood Acres would suffer in being unable to enforce this restrictive covenant as to mobile homes. We will consider these two issues together. A trial court weighs the respective conveniences and hardships of the parties and balances the equities in deciding whether to grant a temporary injunction. Computek Computer & Office Supplies, Inc. v. Walton, 156 S.W.3d 217, 220 (Tex. App. Dallas 2005, no pet.). The trial court may consider whether the applicant would suffer significant or slight injury if the injunction were erroneously denied, and whether the injury to the opposing party would be significant or slight if the injunction were erroneously granted. T.F.W. Mgmt., Inc. v. Westwood Shores Prop. Owners Ass n, 162 S.W.3d 564, 575 (Tex. App. Houston [14th Dist.] 2004, no pet.).

Alvis and his wife were a young couple with a three month old daughter who had spent over $8,000.00 setting up their mobile home in Glenwood Acres. Alvis testified that he had no savings left and nowhere to go if he was forced to remove his mobile home from Glenwood Acres. Further, the record did not show that Alvis had received any communication from Glenwood Acres from September 1 to December 1, when the suit for temporary injunction was filed. Consequently, Alvis and his wife had been allowed to put over $8,000.00 worth of improvements into the mobile home and lot that would be lost if the injunction was granted and they were forced to leave.

Alvis also testified that on one side of their mobile home there was a home that had been burned and on the other side an abandoned home that was falling down. He testified that no one else who had placed a mobile home on a lot in Glenwood Acres without the approval of the board had been forced to move it out. He said that he felt like he was being singled out.

The board was attempting to reestablish its authority. It also wanted to be able to enforce this restriction in the future. In balancing the equities between the two sides, we cannot say that the trial court abused its discretion in refusing to grant Glenwood Acres a temporary injunction. Glenwood Acres s issues two and five are overruled.

Failure to Offer Evidence

In its third issue, Glenwood Acres contends that the trial court erred in refusing to admit evidence of a petition against the association s board of directors. In reviewing the record before us, we cannot find where Glenwood Acres actually offered this petition into evidence. Thus, we can find nothing in the record to show that the trial court ever made an evidentiary ruling regarding the admission of this petition into evidence. The trial court does not abuse its discretion by failing to admit an exhibit into evidence where that exhibit has not been offered in the first place. See Mitchell v. Bank of Am., N.A., 156 S.W.3d 622, 627 (Tex. App. Dallas 2004, pet. denied). Glenwood Acres s third issue is overruled.

Disposition

Having overruled Glenwood Acres s six issues, the judgment of the trial court is affirmed.

JAMES T. WORTHEN

Chief Justice

Opinion delivered July 31, 2007.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(PUBLISH)