aardan-leasing-corporation-first-florida-leasing-corporation-joel-mallin ( 2004 )

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-03-00130-CV

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AARDAN LEASING CORPORATION, FIRST FLORIDA

LEASING CORPORATION, JOEL MALLIN, SCOTT C. DUNN,

ROLAND HENNESSEY, PATTON CORRIGAN,

and JOEL KLEIN, Appellants

V.

PEOPLES NATIONAL BANK, N.A.,

AND PEOPLES ASSET MANAGEMENT, INC., Appellees

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On Appeal from the 6th Judicial District Court

Lamar County, Texas

Trial Court No. 67705

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Before Morriss, C.J., Ross and Carter, JJ.

Opinion by Justice Ross

O P I N I O N

          Appellants have filed their unopposed motion to dismiss appeal based on their settlement with Appellees. The Texas Rules of Appellate Procedure authorize this Court to dismiss an appeal on the filing of a proper motion by an appellant. See Tex. R. App. P. 42.1(a). We therefore grant Appellants' motion to dismiss the appeal.

          We dismiss the appeal.

                                                                           Donald R. Ross

                                                                           Justice

Date Submitted:      April 12, 2004

Date Decided:         April 13, 2004

"> In construing a restrictive covenant, the court's primary task is to determine the intent of those who framed the covenants. Wilmoth v. Wilcox, 734 S.W.2d 656, 658 (Tex. 1987). A reviewing court should draw all legitimate inferences in favor of the trial court's judgment, Community State Bank v. New Investment, L.L.C., 38 S.W.3d 256, 258 (Tex. App.--Texarkana 2001, writ dism'd w.o.j.), and should affirm the judgment on any legal theory supported by the evidence. Lassiter v. Bliss, 559 S.W.2d 353, 358 (Tex. 1977), overruled on other grounds by Cherne Indus., Inc. v. Magaallanes, 763 S.W.2d 768 (Tex. 1989); Cmty. State Bank v. New Investment, 38 S.W.3d at 258.

We find that the trial court did not abuse its discretion in denying the plea for a temporary injunction. There is ample evidence from which the trial court could have reasonably concluded that the parties who framed the restrictive covenants did not intend for them to prohibit the construction or use of a general access road on the strip of land purchased by the Patels from the Powells, and that the construction and use of the road on that land would not constitute the "construction or operation" of a hotel or motel. The road is not a private, exclusive access road to the hotel, but will provide access, not only to the Patels' hotel tract, but also to the Powells' land and to the general public. Unlike the situation involved in Highlands Management Co. v. First Interstate Bank of Texas, N.A., 956 S.W.2d 749 (Tex. App.--Houston [14th Dist.] 1997, writ denied), on which Desai relies, the road in question will not be a driveway or parking area for a hotel. Nor will the road involved here be an integral or indispensable part of the operation of the hotel, since there are other areas of access to the hotel tract. Additionally, there is testimony that Mr. Powell, who adopted the restrictions, told Rajesh Patel that he was free to build a road on the strip of land in question, but not a hotel or motel. Of course, there is conflicting testimony in some respects as to the intent and meaning of the restrictions, but the trial court in a temporary injunction hearing does not abuse its discretion when it bases its decision on conflicting evidence. Davis v. Huey, 571 S.W.2d 859 (Tex. 1978); Zmotony v. Phillips, 529 S.W.2d 760 (Tex. 1975).

The Patels argue that Desai failed to prove the existence and nature of the restrictive covenants because it never introduced the written instrument containing the restrictions in evidence at the hearing. However, it appears there was sufficient oral testimony about the wording and nature of the restrictions that, in the absence of a "best evidence" objection, adequately proved the restrictions. Assuming that the restrictions were adequately proven, there is sufficient evidence to support the trial court's conclusion that the Patels' acts in building and using the road in question here do not violate the restrictive covenants, and therefore Desai failed to prove it was probably entitled to the relief sought.

For the reasons stated, we affirm the judgment of the trial court.

William J. Cornelius

Justice*

*Chief Justice, Retired, Sitting by Assignment

Date Submitted: June 6, 2007

Date Decided: July 19, 2007