Opinion
No. 09-10-00496-CV
Submitted on February 16, 2011.
Opinion Delivered April 7, 2011.
On Appeal from the 284th District Court, Montgomery County, Texas, Trial Cause No. 10-08-09274 CV.
Before McKEITHEN, C.J., GAULTNEY and HORTON, JJ.
MEMORANDUM OPINION
Ronald Martin sued Berenice Romero to enjoin her from violating restrictions contained in her deed, prohibiting her use, placement, or maintenance of a mobile home on her lot. The trial court denied Martin's request for a temporary injunction. Martin filed an interlocutory appeal, asserting the trial court erred by denying his request for injunctive relief. We affirm the trial court's order.
Background
In 1972, the developer of the Crystal Forest Subdivision ("the Subdivision") recorded deed restrictions governing the use of the Subdivision's lots. The deed restriction now in dispute provides:
Lots 137 through 209 of the above described property are authorized and designated for use as mobile home sites; therefore, the restrictions set forth below shall, in addition to those above set forth, be applicable to the said mobile home sites. No other lots shall be authorized and designated for use as a mobile home site, and mobile homes may not be used, placed[,] or maintained on any lots in Crystal Forest Subdivision except Lots 137 through 209.
Martin has lived in the Subdivision since 1973, and he owns lot 131. In 2007, Romero purchased lot 46. In August 2010, Martin noticed that forms used to create a foundation for a mobile home were being constructed on lot 46. After noticing the construction activity on lot 46, Martin contacted an attorney, who notified Romero by letter that the Subdivision's deed restrictions prohibited the placement of a mobile home on lot 46. When Romero's activity on lot 46 did not cease, Martin filed suit to enforce the Subdivision's deed restrictions. He requested that the trial court issue a temporary restraining order and temporary injunction. After entering a temporary restraining order, the trial court scheduled a hearing on Martin's request for temporary injunctive relief. Subsequently, Romero filed an answer, asserting that Martin had waived his right to enforce the Subdivision's restrictions.
Three witnesses testified at the temporary injunction hearing. Although the total number of lots in violation of the Subdivision's mobile home restriction was disputed, it was undisputed that at least twelve percent of the developed lots in the restricted portion of the Subdivision contain mobile homes. Martin also testified that the Subdivision's deed restrictions had not been enforced from 1972 through 2005. Another witness, Robin Lane, who was employed by the partnership that sold Romero lot 46, testified that there were 151 total restricted lots in the Subdivision. According to Lane, structures exist on seventy-six of the Subdivision's restricted lots, and of the developed lots, twenty-five percent are occupied by mobile homes. Of the total number of restricted lots in the Subdivision, developed and undeveloped, Lane estimated that approximately twelve percent contain mobile homes.
It appears that these estimates include two lots, lot 46 owned by Romero and one other, which are currently the subject of enforcement actions. Excluding these two homes, the trial court could have concluded that no challenge had been made by Martin to mobile homes located on approximately eleven percent of all of the restricted lots in the Subdivision, or on twenty-two percent of the developed lots.
Although Martin attempted to call Romero as a witness during the hearing, she did not testify because Martin did not provide an interpreter to translate her testimony from Spanish. Upon being advised that Romero did not speak English, Martin did not ask for a continuance, and he did not request the court to provide an interpreter.
When the hearing concluded, the trial court denied Romero's request for injunctive relief. The trial court did not enter any findings of fact or conclusions of law. Martin filed an interlocutory appeal from the trial court's order. We note our jurisdiction over Martin's interlocutory appeal. See Tex. Civ. Prac. Rem. Code Ann. § 51.014(4) (West 2008) (authorizing appellate review from orders granting or denying temporary injunctions).
Standard of Review
A party asking for a temporary injunction seeks extraordinary equitable relief. In re Tex. Natural Res. Conservation Comm'n, 85 S.W.3d 201, 204 (Tex. 2002) (quoting Camp v. Shannon, 162 Tex. 515, 348 S.W.2d 517, 519 (1961)). The trial court determines whether the applicant is entitled 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). "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." Id. Here, there is no dispute that Romero's lot, lot 46, is subject to a deed restriction which prohibits placing a mobile home there. However, Romero contends that the deed's restriction is unenforceable because Martin failed to enforce the Subdivision's restriction on other occasions, and during the years Martin lived in the Subdivision, he allowed mobile homes to be used on restricted lots. Romero concludes that Martin's past conduct in failing to enforce the deed restriction in issue allowed the trial court to reasonably conclude that Martin had waived his right to enforce the restrictive covenant in the deed. Based on the evidence, Romero contends that Martin failed to establish his right of probable recovery on the merits of his claim.
In an interlocutory appeal from a trial court's ruling on a request for temporary injunctive relief, "the merits of the underlying case are not presented for appellate review. Appellate review of an order granting or denying a temporary injunction is strictly limited to determination of whether there has been a clear abuse of discretion by the trial court in granting or denying the interlocutory order." Davis v. Huey, 571 S.W.2d 859, 861-62 (Tex. 1978). An abuse of discretion occurs when a trial court acts in an unreasonable or arbitrary manner, or misapplies the law to established facts. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). "An abuse of discretion does not exist where the trial court bases its decisions on conflicting evidence." Davis, 571 S.W.2d at 862. In reviewing the evidence from a temporary injunction hearing, and when, as here, the trial court has not entered findings of fact or conclusions of law, we view the evidence in the light most favorable to the trial court's order and indulge every reasonable inference in its favor. See Thomas v. Beaumont Heritage Soc'y, 296 S.W.3d 350, 352 (Tex. App.-Beaumont 2009, no pet.). Therefore, for purposes of this appeal, we presume all findings necessary to support the trial court's judgment and affirm if there is any legal theory sufficiently raised by the evidence to support the trial court's ruling. See Davis, 571 S.W.2d at 862.
Analysis
"To establish waiver in a deed restrictions case, the nonconforming user must prove that violations then existing are so great as to lead the mind of the `average man' to reasonably conclude that the restriction in question has been abandoned and its enforcement waived." Finkelstein v. Southampton Civic Club, 675 S.W.2d 271, 278 (Tex. App.-Houston [1st Dist.] 1984, writ ref'd n.r.e.). Here, the trial court heard conflicting testimony regarding the extent to which mobile homes had been used on restricted lots. Based on the evidence before it, the trial court could have reasonably concluded that approximately twenty-two percent of the developed lots contained mobile homes, and that the owners of these lots had not been subjected to enforcement actions. The trial court could have also concluded that although Martin had knowledge of the placement and use of mobile homes in the Subdivision, until recently, neither he nor others had acted to enforce the Subdivision's deed restrictions.
An application seeking a temporary injunction is a request that a court exercise its equitable jurisdiction. See In re Gamble, 71 S.W.3d 313, 317 (Tex. 2002); NMTC Corp. v. Conarroe, 99 S.W.3d 865, 868 (Tex. App.-Beaumont 2003, no pet.). A court of equity "may refuse to enforce [a deed restriction] because 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." Cowling v. Colligan, 158 Tex. 458, 312 S.W.2d 943, 945 (1958). Among the factors that the trial court may consider in deciding whether injunctive relief is appropriate "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." Finkelstein, 675 S.W.2d at 278.
Given the extent of the violations of the restriction on the use of mobile homes on restricted lots, the evidence before the trial court permitted it to reasonably conclude that the violations were not insubstantial, trivial, or isolated. Cf. Stewart v. Welsh, 142 Tex. 314, 178 S.W.2d 506, 508 (1944) (stating that "the settled rule is that [one] is not precluded from enforcing a restriction against an owner whose violation of [a deed restriction] 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"); Stephenson v. Perlitz, 537 S.W.2d 287, 288-90 (Tex. Civ. App.-Beaumont 1976, writ ref'd n.r.e.) (concluding that the failure to act with respect to prior immaterial violations does not prevent a homeowner from enforcing deed restrictions). Additionally, there was evidence that Martin failed to enforce the Subdivision's restrictions with respect to several mobile homes that are closer to his home than Romero's. The closer proximity of other lots in violation of the mobile home restriction to Martin's home, together with Martin's failure to enforce the Subdivision's restrictions with respect to those violations, in our opinion, provides additional support for the trial court's implied finding that the violations by others were not insubstantial, trivial, or isolated.
We note that a ruling on a request for a temporary injunction is not a final decision with respect to the resolution of disputed facts. See Butnaru, 84 S.W.3d at 204. We further observe that an owner who continues construction when her right to do so is the subject of a pending suit to enforce restrictive covenants does so at her own risk, as the plaintiff may ultimately prevail. See Bollier v. Austin Gurdwara Sahib, Inc., Nos. 03-09-00313-CV, 03-09-00317-CV, 2010 WL 2698765, at *9 (Tex. App.-Austin July 9, 2010, pet. denied) (mem. op.) (quoting 5 Pomeroy's Equity Jurisprudence § 1971 (4th ed. 1919)). Having carefully reviewed the record, and in light of the conflicting evidence before the trial court regarding the extent to which the Subdivision's restrictions on the use of mobile homes had been violated, we conclude the trial court, by denying Martin's request for temporary injunctive relief, did not abuse its discretion. The evidence before the trial court allowed it to reasonably conclude that Martin failed to demonstrate he was likely to succeed on the merits at the time of trial. We overrule issue one.
In issue three, Martin complains that the trial court erred in refusing to allow him to question Romero after she claimed she did not speak English. However, the record shows that Martin did not ask the court to provide an interpreter, nor did Martin request a continuance to obtain one. Moreover, Martin did not make a bystander bill or otherwise attempt to demonstrate that Romero's testimony would have been material to the issues on appeal.
By failing to object to the trial court's decision to proceed without an interpreter, Martin failed to preserve his complaint that he could not examine Romero for our review. See Tex. R. App. P. 33.1 (preserving error for appellate review requires the complaining party to show that he presented his complaint to the trial court in a timely request, objection, or motion and that the trial court ruled on the request). We conclude that Martin's complaint concerning the lack of an interpreter is not preserved for appellate review. See Tex. R. App. P. 33.1(a)(1). We overrule issue three.
For the reasons stated, we affirm the trial court's order denying Martin's request for temporary injunctive relief.
In issue two, Martin complains of the trial court's "finding" that he did not have standing to bring suit. However, we have determined that the trial court's order should be affirmed because the trial court did not abuse its discretion when it determined that Martin failed to prove he would likely prevail on the merits. Because we affirm on another ground, we need not reach issue two-Martin's issue addressing whether he has standing to enforce the Subdivision's deed restrictions. See Tex. R. App. P. 47.1.
AFFIRMED.