Southwest Church of Christ v. Country Properties Homeowners

AFFIRMED and Opinion Filed December 5, 2023
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-01092-CV
SOUTHWEST CHURCH OF CHRIST, Appellant
V.
COUNTRY PROPERTIES HOMEOWNERS, Appellee
On Appeal from the 361st District Court
Brazos County, Texas
Trial Court Cause No. 22-001515-CV-361
MEMORANDUM OPINION
Before Justices Carlyle, Goldstein, and Kennedy
Opinion by Justice Goldstein
This is an accelerated appeal of an order granting a temporary injunction.
Southwest Church of Christ appeals the trial court’s order granting a temporary
injunction against Southwest Church of Christ (the Church) and enjoining the
Church from continuing construction of a church building. In three issues, the
Church argues Country Properties Homeowners (the Homeowners) failed to prove
that the Church’s property is subject to a deed restriction, the deed restriction is void
because it does not comply with the statute of frauds, and the deed restriction does
not prohibit the construction of a church building. After reviewing the evidence, we
conclude the trial court did not abuse its discretion in issuing the temporary
injunction. We affirm the trial court’s order.
BACKGROUND
In July 2022, the Homeowners filed their original petition against the Church.
The petition alleged that the Homeowners listed on an attached exhibit owned lots
in the rural subdivision called Country Properties in Brazos County. Also attached
to the petition was a document imposing restrictive covenants on the lots of Country
Properties on file and recorded in the appropriate records of Brazos County, Texas
by the developer of Country Properties, Jay D. Dickens, on May 13, 1987, Vol. 970,
page 746. Among other things, the deed restrictions provided that “only one single
family residence is allowed per five acres of land,” and “no commercial business
shall be established on this property” and “no advertising sign of any kind shall be
displayed for public view.” The petition alleged the Church “purchased the only lot
without a residence” and that the lot was subject to the restrictive covenants.
Nevertheless, although the Homeowners advised the Church of the violation of the
deed restrictions, the Church failed to respond or take any action to stop the
construction of a worship center on the lot. The Homeowners sought a declaratory
judgment, preliminary and permanent injunctive relief, a temporary restraining
order, a temporary injunction, and a permanent injunction. On July 11, 2022, the
trial court issued a temporary restraining order and set the hearing on the application
for a temporary injunction.
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On August 7, 2022, the Church filed a plea to the jurisdiction, motion to
dismiss, original answer, counterclaim, and jury demand in which it asserted, among
other things, that the Homeowners lacked standing, the Homeowners’ claims were
not ripe, the alleged deed restrictions were void under the statute of frauds, and the
alleged deed restrictions did not prohibit the Church’s “past and present use of the
property.”
TEMPORARY INJUNCTION HEARING
At a hearing on August 11, 2022, the trial court first overruled the Church’s
plea to the jurisdiction and motion to dismiss following the arguments of counsel.
The trial court then turned to the issue of the temporary injunction. Todd Carroll
testified that he owns three lots in Country Properties, and he received a copy of the
deed restrictions for Country Properties at the time he closed on all three lots. Carroll
testified the “two biggest” restrictions were “only single family dwellings” and “that
you cannot subdivide or replat less than five acres.” The subdivision consists of ten
lots, Carroll testified, and the Church owned one lot, Carroll owned three lots, and
the six remaining lots all contained single family residences. Carroll became aware
there was going to be construction on the Church lot when “[s]ome equipment
moved in” and a sign appeared identifying “Raven Partners.” Carroll’s “impression
was that it’s a home builder.” When Carroll saw a slab being poured on the Church
lot, he also “assumed it was a home.” However, when Carroll saw a metal building
going up and “the entry was put up,” the construction “didn’t look like it was a
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home.” Carroll called his neighbor Lori Williams, who told Carroll the building was
going to be a church. Carroll and six of his neighbors then consulted a lawyer.
Lori Williams testified she purchased a lot in Country Properties in December
1999. Williams’ title policy included the deed restrictions for Country Properties,
and she read and understood those deed restrictions. Williams noticed construction
beginning on the church lot in “late May” and “next came the slab,” but she could
not tell from the slab “what type of structure it would be,” and she did not enter the
property. When Williams saw metal framing going up, she thought it was a
“barndominium or something,” but once “they hung dormer windows,” Williams
“assumed that it was going to be something other than a house because it didn’t look
like a house at that point.” Williams testified that the “timeframe . . . at this time”
was in June. Williams called the number on the “Raven Homes” sign and learned
that the building was a church. Williams raised the issue of the deed restrictions but
was told she “needed to talk to the church themselves.” Through the “Brazos CAD”
and Google, Williams found a phone number for the Church. When Williams called
the Church and spoke to “Mr. Dickens,” she confirmed that the building was going
to be a church and asked if Dickens was aware of the deed restrictions. Dickens
answered that “there was [sic] no deed restrictions and then the next sentence was,
it doesn’t matter if there’s deed restrictions because they’re a church and they don’t
abide by them.” Based on her conversation with Dickens, Williams spoke to Carroll
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and other neighbors and discussed a plan to have Carroll talk to his attorney and
determine “what could possibly be done.”
Rodney Horrell testified he purchased the lot adjacent to the church lot in the
summer of 2016, and the lot already had a single family home on it. Horrell testified
that his title policy referenced the deed restrictions on the lot, and he received a copy
of the deed restrictions at closing and prior to closing from his realtor. On January
25, 2021, a man who identified himself as “Jimmy” spoke with Horrell, and
“identified himself as a member and shared they’d be building a church there.”
Horrell “mentioned that there were some restrictions and [Jimmy] acted as though
he hadn’t seen those,” so Horrell emailed a copy of the restrictions to Jimmy. Horrell
testified his “concern raised” when Carroll contacted him and he learned the church
intended to build a church with a parking lot, lights, and a sign. A copy of Horrell’s
email was admitted into evidence. Later in the hearing, a copy of the Brazos Central
Appraisal District’s description of the church property was also admitted into
evidence showing the following legal description: “COUNTRY PROPERTIES,
BLOCK 1, LOT 3A, ACRES 6.87.”
On August 26, 2022, the trial court signed an order denying the Church’s plea
to the jurisdiction and motion to dismiss and granting a temporary injunction setting
a trial on the merits and commanding the Church to desist and refrain from the
following:
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1. Continuing any construction of the structure or building
intended as a church on the Church Lot as described in the Petition;
2. Taking any action to complete the structure or building on the
Church Lot:
3 Using the structure or building being constructed on the Church
Lot for any purpose other than as a single family residence.
This appeal followed.
STANDARD OF REVIEW
A temporary injunction is an extraordinary remedy and does not issue as a
matter of right.” Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002) (op.
on reh’g) (citing Walling v. Metcalfe, 863 S.W.2d 56, 57 (Tex. 1993)). The question
before the trial court is whether the applicant is entitled to preserve the status quo of
the litigation's subject matter pending a trial on the merits. Id.; see State v. Sw. Bell
Tel. Co., 526 S.W.2d 526, 528 (Tex. 1975) (defining status quo as the “last, actual,
peaceable, non-contested status that preceded the pending controversy”). “To be
entitled to a temporary injunction, the applicant must plead a cause of action and
show a probable right to recover on that cause of action and a probable, imminent,
and irreparable injury in the interim.” Fox v. Tropical Warehouses, Inc., 121 S.W.3d
853, 857 (Tex. App.—Fort Worth 2003, no pet.) (citing Butnaru, 84 S.W.3d at 204).
We review a temporary injunction for an abuse of discretion. See Butnaru, 84
S.W.3d at 204. A trial court abuses its discretion when it acts unreasonably or in an
arbitrary manner or without reference to any guiding rules and principles. Id. at 211.
We will not disturb the trial court's decision to grant injunctive relief absent a clear
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abuse of discretion. Reagan Nat'l Advert. v. Vanderhoof Family Tr., 82 S.W.3d 366,
370 (Tex. App.—Austin 2002, no pet.). Our scope of review is limited to the validity
of the order granting or denying the temporary injunction. See id. When reviewing
the order, we view the evidence in the light most favorable to the order, indulging
every reasonable inference in its favor, and “determine whether the order was so
arbitrary that it exceeds the bounds of reasonable discretion.” Fox, 121 S.W.3d at
857. “A trial court does not abuse its discretion if it bases its decision on conflicting
evidence and evidence in the record reasonably supports the trial court's decision.”
Id.ANALYSIS
In general, temporary injunctive relief is warranted when a movant shows: (1)
a probable right of recovery; (2) imminent, irreparable harm will occur if the request
is denied; and (3) no adequate remedy at law exists. Marcus v. Whispering Springs
Homeowners Ass’n, Inc., 153 S.W.3d 702, 707 (Tex. App.—Dallas 2005, no pet.).
When an injunction is sought to enforce a restrictive covenant, however, the movant
is not required to show proof of irreparable injury. Id. Instead, the movant need
show only that the defendant intends to do an act that would breach the covenant.
Id. In granting the temporary injunction, the trial court found and concluded:
that Plaintiffs will probably prevail on the trial of this cause; that
Defendant intends to complete construction of the building to be used
as a church on Defendant’s lot before the Court can render judgment in
this cause; and if Defendant carries out that intention, Defendant will
thereby alter the status quo and will adversely affect the judgment
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which will likely be rendered in this case that the church building being
constructed is not a single family residence and violates the restrictive
covenants on Defendant’ lots; and Plaintiffs will have no adequate
remedy at law after construction and use of the structure as a church in
violation of the restrictive covenants for Country Properties’ lots.
In its first issue, the Church argues the Homeowners failed to prove that the
Church’s property is “subject to the purported deed restriction.” In support of this
argument, the Church cites only one case, Country Community Timberlake Village.,
L.P. v. HMW Special Utility District, 438 S.W.3d 661, 668 (Tex. App.—Houston
[1st Dist.] 2014, pet. denied), for the proposition that, in order to enforce a deed
restriction, the proponent must first prove that he or she owns property that is subject
to or affected by the deed restriction. The totality of the Church’s argument is that
none of the Homeowners offered competent evidence that they or the Church owned
property subject to the deed restriction. For these reasons, the Church asserts that
“the preliminary injunction should be dissolved.”
The Church cites nothing in the record to support its contentions under this
issue. On the contrary, the record shows Carroll testified that he owns three lots in
Country Properties, and he received a copy of the deed restrictions for Country
Properties at the time he closed on all three lots, reflecting on the face that the
restrictions were filed of record in Brazos County. Williams and Horrell testified
they purchased lots in Country Properties, and their title policies included the deed
restrictions for Country Properties. The trial court admitted into evidence copies of
documents from the Brazos Central Appraisal District showing the legal description
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of the Church’s property is “COUNTRY PROPERTIES BLOCK 1, LOT 3A.” The
deed restriction stated that its “restrictive covenants and use limitations covering all
such tracts” were made “for the purpose of instituting and carrying out a uniform
plan for the development and sale of tracts in Country Properties, a subdivision” in
Brazos County, Texas. On this record, we conclude the trial court did not abuse its
discretion in impliedly determining that the evidence showed that the Church and
the Homeowners owned property in a subdivision called Country Properties in
Brazos County, Texas, and that the properties in that subdivision were subject to the
deed restrictions at issue. See id. We overrule the Church’s first issue.
In its second issue, the Church asserts that the deed restriction is void because
it does not comply with the statute of frauds. Specifically, the Church complains
that the deed restrictions in this case do not “locate the general area” under
consideration nor do they “contain information regarding the size, shape, and
boundaries” of the property that is to be restricted, citing Reeder v. Curry, 426
S.W.3d 352, 359 (Tex. App.—Dallas 2014, no pet.). The Church supports its
argument with citation to the following authorities:
To be valid, a conveyance of real property must contain a sufficient
description of the property to be conveyed. A property description is
sufficient if the writing furnishes within itself, or by reference to some
other existing writing, the means or data by which the particular land to
be conveyed may be identified with reasonable certainty.
AIC Mgmt. v. Crews, 246 S.W.3d 640, 645 (Tex. 2008).
A “conveyance of property . . . which fails to describe a definite tract
of land is void.” Id. The writing does not have to list metes and bounds
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to be enforceable, but it must provide the necessary information to
identify the property with reasonable certainty. May v. Buck, 375
S.W.3d 568, 574 (Tex. App.—Dallas 2012, no pet.). An unidentifiable
portion of a larger, identifiable tract is not sufficient to satisfy the statute
of frauds. Id. at 574–75. “The legal description in the conveyance must
not only furnish enough information to locate the general area as in
identifying it by tract survey and county, it need contain information
regarding the size, shape, and boundaries.” Id. at 575 (quoting Reiland
v. Patrick Thomas Props., Inc., 213 S.W.3d 431, 437 (Tex. App.—
Houston [1st Dist.] 2006, pet. denied)). “Even when ‘the record leaves
little doubt that the parties knew and understood what property was
intended to be conveyed . . . the knowledge and intent of the parties will
not give validity to the contract and neither will a plat made from
extrinsic evidence.’” Reiland, 213 S.W.3d at 437 (quoting Morrow v.
Shotwell, 477 S.W.2d 538, 540 (Tex. 1972)).
Reeder, 426 S.W.3d at 359.
Again, other than citing the exhibit containing the deed restrictions, the
Church does not provide citations to the record to support its assertions. A review
of the document creating the deed restrictions, as previously discussed, shows that
it pertains to a subdivision called Country Properties. Further, the document refers
to the subdivision Jay Dickens owns and provides that the restrictions contained
therein may be altered by a majority of owners of “the tracts in this recorded
subdivision.” The document defines a “tract” as “one of the original 10 tracts
appearing on the recorded subdivision plat.” Under these circumstances, we
conclude the trial court did not abuse its discretion in impliedly determining that the
deed restriction provided the necessary information to identify the property subject
to the restriction with reasonable certainty. See May, 375 S.W.3d at 574. We
overrule the Church’s second issue.
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In its third issue, the Church asserts that the deed restriction does not prohibit
the construction of a church building. Specifically, the Church argues the deed
restriction “says nothing whatsoever about the construction of church buildings,”
and the Homeowners are trying “to shoehorn their objections into the document’s
prohibition against ‘commercial businesses.’” In addition, the Church argues the
deed restrictions do not create a “residential only” subdivision because, at most, the
restrictions limit “the number of homes that can be constructed on a given tract.”
The Texas Property Code defines a restrictive covenant as “any covenant,
condition, or restriction contained in a dedicatory instrument, whether mandatory,
prohibitive, permissive, or administrative,” and it requires that a restrictive covenant
“shall be liberally construed to give effect to its purposes and intent.” TEX. PROP.
CODE §§ 202.001(4), 202.003(a). In construing a restrictive covenant, our primary
task is to determine the intent of the framers of the covenant. Sanchez v.
Southampton Civic Club, Inc., 367 S.W.3d 429, 434 (Tex. App.—Houston [14th
Dist.] 2012, no pet.).
The restriction here stated, in pertinent part, that “Only one single family
residence is allowed per five acres of land.” The document creating the restriction
further stated the express “purpose of instituting and carrying out a uniform plan for
the development and sale of tracts in Country Properties.” (Emphasis added). While
the restriction does not mention the word “church,” it does provide that only one
single family residence is permitted per five acres and specifically expresses the
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purpose of carrying out a uniform plan for the development of tracts in Country
Properties. A uniform plan for development reflects an intent to make Country
Properties a uniformly residential development. See id. The Church intended to
build a seven thousand square foot worship center, with a parking lot, lighting, and
a sign. Thus, whether the Church would be considered “commercial,” its intention
to build a church on its tract in Country Properties would violate the argued
residential purpose of the restriction. Viewing the evidence in the light most
favorable to the trial court’s order, indulging every reasonable inference in its favor,
we conclude the order was not so arbitrary that it exceeded the bounds of reasonable
discretion. See Fox, 121 S.W.3d at 857. We further conclude the trial court did not
abuse its discretion in determining the Homeowners were entitled to preserve the
status quo of the subject matter of the suit pending a trial on the merits because the
Church intended to do an act that would breach the deed restrictions. See Marcus,
153 S.W.3d at 706–07. We overrule the Church’s third issue.
We affirm the trial court’s order.
/Bonnie Lee Goldstein/
221092F.P05 BONNIE LEE GOLDSTEIN
JUSTICE
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
SOUTHWEST CHURCH OF On Appeal from the 361st District
CHRIST, Appellant Court, Brazos County, Texas
Trial Court Cause No. 22-001515-
No. 05-22-01092-CV V. CV-361.
Opinion delivered by Justice
COUNTRY PROPERTIES Goldstein. Justices Carlyle and
HOMEOWNERS, Appellees Kennedy participating.
In accordance with this Court’s opinion of this date, the trial court’s order
granting a temporary injunction against Southwest Church of Christ is
AFFIRMED.
It is ORDERED that appellees COUNTRY PROPERTIES
HOMEOWNERS recover their costs of this appeal from appellant SOUTHWEST
CHURCH OF CHRIST.
Judgment entered December 5, 2023
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