Thomas G. Schuring and Rose M. Schuring v. Fosters Mill Village Community Association , 2013 Tex. App. LEXIS 249 ( 2013 )


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  • Affirmed and Opinion filed January 15, 2013.
    In The
    Fourteenth Court of Appeals
    NO. 14-12-00250-CV
    THOMAS G. SCHURING AND ROSE M. SCHURING, Appellant
    V.
    FOSTERS MILL VILLAGE COMMUNITY ASSOCIATION, Appellee
    On Appeal from the 61st District Court
    Harris County, Texas
    Trial Court Cause No. 2009-76232
    OPINION
    Appellants, Thomas G. and Rose M. Schuring, appeal the denial of their
    motion to dissolve a permanent injunction that ordered them to comply with their
    home’s deed restrictions. We affirm.
    The Schurings allege that, after the trial court issued the injunction, they
    discovered complying with it would be unduly expensive, result in loss of their
    home’s insurance coverage, and thus cause a breach of their home’s deed of trust.
    The Schurings contend that these “changed circumstances” required dissolving the
    injunction. Because the parties presented conflicting evidence of the hardships the
    injunction would cause, we hold that the trial court did not abuse its discretion by
    leaving the injunction in place.
    BACKGROUND
    In November 2009, Fosters Mill Village Community Association petitioned
    for a permanent injunction ordering the Schurings to obtain the Association’s
    approval before installing any new roofing on their house or garage.            The
    Association alleged, among other things, that the Schurings planned to install a
    metal roof on their home and had begun to install one on their garage. The
    Association contended that the installations violated a covenant requiring the
    Association’s approval prior to such changes. Following a bench trial on the
    merits, the trial court signed a final judgment that ordered the Schurings to
    “submit[ ] a revised Home Improvement Request to the [Association] regarding the
    roofing material” and, “upon receipt of written approval from the [Association],
    [to] commenc[e] and complete the installation of roofing material approved by [the
    Association].” Neither party appealed.
    The Schurings then submitted a request to install a metal roof, and the
    Association denied their request. The Association informed the Schurings that
    “the minimum roof requirement for your village is a 30 year high definition
    shingle” (capitalization omitted). The Schurings never submitted another request.
    According to the Association, the Schurings then began removing their
    home’s roof and installing a metal one in violation of the injunction.          The
    Schurings moved to dissolve the injunction, arguing that circumstances had
    changed. Specifically, the Schurings alleged that: (1) installing a non-metal roof
    2
    would require them to brace their home’s rafters, which their engineer estimated
    would cost $13,000; (2) their home insurer had determined that “if the [Schurings]
    modifie[d] the roof with braces it w[ould] compromise the structure and prevent
    the Company from continuing coverage”; and (3) the terms of a deed of trust
    permitted forced sale of their home if it became uninsured.
    The Association disputed the Schurings’ factual claims, arguing that an
    engineer retained by the Association had suggested less cumbersome bracing
    options, as had the Schurings’ engineer in a previous report. The Association also
    questioned the authenticity and timing of a fax from the Schurings’ insurer that
    threatened to cancel their homeowners’ coverage and argued that, in any event, the
    couple could likely find an alternative insurance provider if necessary.
    The trial court denied the Schurings’ motion to dissolve the injunction.
    Neither party requested findings on the motion, and the trial court made none. In a
    subsequent order on the Association’s motion for contempt, however, the court
    explicitly found that the Schurings had both the “financial ability” and the “present
    ability” to comply. The Schurings appealed the denial of their motion to dissolve;
    they did not appeal the trial court’s ruling on the contempt motion.
    ANALYSIS
    The only issue for our review is whether the trial court erred in denying the
    Schurings’ motion to dissolve the permanent injunction.
    I.    Standard of review
    Trial courts possess the inherent power to modify final injunctive orders to
    enforce a judgment or accommodate changed conditions. Harris Cnty. Appraisal
    Dist. v. West, 
    708 S.W.2d 893
    , 896 (Tex. App.—Houston [14th Dist.] 1986, orig.
    proceeding). This Court has jurisdiction to hear an appeal of a trial court’s ruling
    on a motion to modify or dissolve a permanent injunction based upon allegations
    3
    of changed circumstances. City of Tyler v. St. Louis Sw. Ry., 
    405 S.W.2d 330
    , 333
    (Tex. 1966). We apply a two-step inquiry when reviewing the grant or denial of a
    such a motion. First, we must consider whether the evidence shows actual changed
    circumstances. See City of San Antonio v. Singleton, 
    858 S.W.2d 411
    , 412 (Tex.
    1993). Absent changed circumstances, a trial court lacks the authority to modify a
    final, permanent injunction. 
    Id. Second, if
    relevant circumstances have changed,
    we must determine whether the trial court abused its discretion in ruling upon the
    requested modification. See Smith v. O’Neill, 
    813 S.W.2d 501
    , 502–03 (Tex.
    1991).1 The party seeking modification has the burden of demonstrating that
    changed circumstances require modifying the injunction and that the trial court
    could reasonably have reached only one decision on that issue.                          See Chase
    Manhattan Bank v. Bowles, 
    52 S.W.3d 871
    , 879 (Tex. App.—Waco 2001, no pet.);
    City of Seagoville v. Smith, 
    695 S.W.2d 288
    , 289 (Tex. App.—Dallas 1985, no
    writ).
    Assuming without deciding that the Schurings allegations establish
    “changed circumstances,” we hold that the trial court did not abuse its discretion
    1
    We know of no recent, published Texas case stating the standard of review for the
    denial of a motion to dissolve a permanent injunction, and the parties have cited none. But cf.
    Hart v. Mills, 
    38 Tex. 517
    , 519 (1873) (“[A] complete denial, under oath, of all the equities in a
    bill for an injunction does not entitle a party to a dissolution of an injunction as a matter of law,
    but it certainly does place the whole matter within the sound discretion of the court, to dissolve
    the injunction or not . . . .”). We note, however, that a permanent injunction is an equitable
    remedy. Cooper v. Litton Loan Servicing, LP, 
    325 S.W.3d 766
    , 769 (Tex. App.—Dallas 2010,
    pet. denied). Generally, “the expediency, necessity, or propriety of equitable relief is for the trial
    court, and its ruling is reviewed for an abuse of discretion.” Wagner & Brown, Ltd. v. Sheppard,
    
    282 S.W.3d 419
    , 428–29 (Tex. 2008) (internal quotation marks and footnote omitted).
    Thus, an abuse of discretion standard applies to initial decisions on requests for
    temporary or permanent injunctions. James v. Easton, 
    368 S.W.3d 799
    , 805 (Tex. App.—
    Houston [14th Dist.] 2012, pet. denied) (temporary injunction); Meehl v. Wise, 
    285 S.W.3d 561
    ,
    565 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (permanent injunction). This review also
    applies to orders dissolving temporary injunctions based upon changed circumstances. Cellular
    Mktg., Inc. v. Houston Cellular Tel. Co., 
    784 S.W.2d 734
    , 735 (Tex. App.—Houston [14th Dist.]
    1990, no writ). We therefore apply an abuse of discretion standard here.
    4
    by declining to modify its injunction.
    The abuse of discretion standard of review means different things in
    different contexts. In general, we do not defer to the trial court on questions of
    law, and we defer to a trial court’s factual findings if they are supported by
    evidence. Perry Homes v. Cull, 
    258 S.W.3d 580
    , 597–98 (Tex. 2008). The test is
    whether the court acted without reference to any guiding rules or principles. Cire
    v. Cummings, 
    134 S.W.3d 835
    , 838–39 (Tex. 2004). Under this standard, the legal
    and factual sufficiency of the evidence are not independent grounds of error, but
    are relevant factors in assessing whether the trial court abused its discretion. Zieba
    v. Martin, 
    928 S.W.2d 782
    , 786 (Tex. App.—Houston [14th Dist.] 1996, no writ).
    “When neither party requests findings of fact and conclusions of law, it is implied
    that the trial court made all fact findings necessary to support its judgment.” Sixth
    RMA Partners, L.P. v. Sibley, 
    111 S.W.3d 46
    , 52 (Tex. 2003).2
    Modification of an injunction may be appropriate when changed
    circumstances render an injunction “unnecessary or improper.”                  Murphy v.
    McDaniel, 
    20 S.W.3d 873
    , 878 (Tex. App.—Dallas 2000, no pet.). There is no
    argument that the injunction at issue here has become unnecessary, but the
    Schurings contend that newly revealed facts make enforcing the injunction
    improper. They argue that we must apply a “reasonableness of outcomes” test to
    determine whether changed circumstances require modifying the injunction.
    We have said that “[w]hen the issue is whether changed circumstances
    warrant a modification of prior injunctive orders, a balancing of equities is not only
    appropriate but is also required.” State v. Associated Metals & Minerals Corp.,
    
    616 S.W.2d 305
    , 311 (Tex. App.—Houston [14th Dist.] 1981), rev’d on other
    2
    The Schurings do not challenge the legal or factual sufficiency of the evidence to
    support the trial court’s implied findings.
    5
    grounds, 
    635 S.W.2d 407
    (Tex. 1982). To the extent the Schurings’ proposed
    “reasonableness” test differs from this required rebalancing of equities, we decline
    to apply it. The process of rebalancing the equities necessarily incorporates the
    reasonableness of enforcing the original injunction.
    In the area of real estate covenants, established equity-balancing principles
    dictate that “‘[w]hen the disproportion between harm and benefit is the sole reason
    for [not enforcing a restriction on land use], the disproportion must be one of
    considerable magnitude.’” Cowling v. Colligan, 
    312 S.W.2d 943
    , 946 (Tex. 1958)
    (quoting Restatement (First) of Property § 563 cmt. c (1944)). Thus, to address the
    Schurings’ arguments, we analyze whether the record supports the trial court’s
    implied finding that complying with the injunction will not create disproportionate
    harm of a considerable magnitude for the Schurings. See 
    id. II. The
    trial court did not abuse its discretion in denying the motion to
    dissolve the injunction.
    The Schurings contend that the trial court abused its discretion because their
    compliance with the injunction will trigger a chain reaction culminating in (1)
    considerable expense to the Schurings to brace the roof so it will support
    composite shingles, (2) loss of their home insurance coverage, and (3) the forced
    sale of their home under the terms of a deed of trust.3 The trial court was not
    required to accept the Schurings allegations, however, because other evidence in
    the record and presumptions support implied findings to the contrary.
    First, the trial court could have found that installation of a non-metal roof
    would not, as the Schurings contend, prove unduly expensive. The record shows
    3
    In their reply brief, the Schurings contend that water damage to their roof is also a
    changed circumstance warranting dissolution of the injunction. Because they failed to raise this
    argument in their initial motion to dissolve the injunction or in their appellant’s brief, we do not
    consider it. See Loftin v. Lee, 
    341 S.W.3d 352
    , 356 n.11 (Tex. 2011).
    6
    that the trial court conducted multiple hearings addressing the feasibility of bracing
    and roofing materials. At one such hearing, both parties submitted engineering
    reports, but these reports and the reporter’s records from the hearings do not appear
    in the appellate record.
    Because the Schurings, as appellants, neither filed the reporter’s records of
    these evidentiary hearings nor attempted to comply with the partial reporter’s
    record provisions of Texas Rule of Appellate Procedure 34.6, we must presume the
    omitted materials support the trial court’s judgment. Sandoval v. Comm’n for
    Lawyer Discipline, 
    25 S.W.3d 720
    , 722 (Tex. App.—Houston [14th Dist.] 2000,
    pet. denied). Thus, we must presume that the missing expert reports support the
    trial court’s implied conclusion that the home could support a non-metal roof and
    that the expense of installing any bracing needed to support the roof did not
    considerably outweigh the benefits of enforcing the injunction.
    Similarly, the trial court could have rejected the Schurings’ assertion that
    installing a non-metal roof would lead to a loss of homeowner’s insurance and
    breach of their deed of trust. The only evidence the Schurings presented of these
    potential hardships was (1) a fax from their current insurer stating that the
    installation of roof bracing would result in a loss of coverage, and (2) a copy of
    their deed of trust stating that insurance was required. The Schurings presented no
    evidence that installing bracing would render their home uninsurable through a
    different provider, especially if they installed the less cumbersome bracing that the
    record suggests was recommended by the Association’s engineer. Nor did the
    Schurings present any evidence that their deed of trust required them to maintain
    their current insurance policy.
    Given this evidence, even assuming that the current insurer would cancel
    coverage, the trial court could have concluded that the only harm likely to result
    7
    was the inconvenience of finding an alternative provider. The trial court did not
    abuse its discretion by concluding that this harm and the expense of installing a
    compliant roof were not so disproportionate to the benefit of enforcing the
    covenant as to require dissolving the injunction. See 
    Cowling, 312 S.W.2d at 946
    .4
    CONCLUSION
    We overrule the Schurings’ sole point of error and affirm the trial court’s
    judgment.
    /s/    J. Brett Busby
    Justice
    Panel consists of Chief Justice Hedges and Justices Brown and Busby.
    4
    The Association requests that we award it $3,000 in appellate attorneys’ fees. Because
    the order denying the motion to dissolve (which is the subject of this appeal) does not provide for
    appellate fees, we deny this request.
    8
    

Document Info

Docket Number: 14-12-00250-CV

Citation Numbers: 396 S.W.3d 73, 2013 Tex. App. LEXIS 249, 2013 WL 150323

Judges: Hedges, Brown, Busby

Filed Date: 1/15/2013

Precedential Status: Precedential

Modified Date: 10/19/2024

Authorities (19)

Sandoval v. Commission for Lawyer Discipline , 25 S.W.3d 720 ( 2000 )

Sixth RMA Partners, L.P. v. Sibley , 46 Tex. Sup. Ct. J. 707 ( 2003 )

Meehl v. Wise , 285 S.W.3d 561 ( 2009 )

City of Tyler v. St. Louis Southwestern Railway Co. of Texas , 9 Tex. Sup. Ct. J. 565 ( 1966 )

Smith v. O'Neill , 813 S.W.2d 501 ( 1991 )

City of San Antonio v. Singleton , 36 Tex. Sup. Ct. J. 1222 ( 1993 )

Loftin v. Lee , 54 Tex. Sup. Ct. J. 895 ( 2011 )

Cowling v. Colligan , 158 Tex. 458 ( 1958 )

State v. Associated Metals & Minerals Corp. , 1981 Tex. App. LEXIS 3463 ( 1981 )

Murphy v. McDaniel , 2000 Tex. App. LEXIS 4122 ( 2000 )

State v. Associated Metals & Minerals Corp. , 25 Tex. Sup. Ct. J. 313 ( 1982 )

Cooper v. Litton Loan Servicing, LP , 325 S.W.3d 766 ( 2010 )

Zieba v. Martin , 1996 Tex. App. LEXIS 4108 ( 1996 )

City of Seagoville v. Smith , 1985 Tex. App. LEXIS 12060 ( 1985 )

Harris County Appraisal District v. West , 1986 Tex. App. LEXIS 12328 ( 1986 )

Cellular Marketing, Inc. v. Houston Cellular Telephone Co. , 1990 Tex. App. LEXIS 95 ( 1990 )

Wagner & Brown, Ltd. v. Sheppard , 52 Tex. Sup. Ct. J. 130 ( 2008 )

Cire v. Cummings , 47 Tex. Sup. Ct. J. 465 ( 2004 )

Chase Manhattan Bank v. Bowles , 52 S.W.3d 871 ( 2001 )

View All Authorities »