DeNina v. Bammel Forest Civic Club, Inc.

712 S.W.2d 195, 1986 Tex. App. LEXIS 12957
CourtCourt of Appeals of Texas
DecidedMay 8, 1986
DocketB14-85-764-CV
StatusPublished
Cited by16 cases

This text of 712 S.W.2d 195 (DeNina v. Bammel Forest Civic Club, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
DeNina v. Bammel Forest Civic Club, Inc., 712 S.W.2d 195, 1986 Tex. App. LEXIS 12957 (Tex. Ct. App. 1986).

Opinions

OPINION

CANNON, Justice.

Bammel Forest Civic Club, Inc. (“Civic Club”) and Tom and Donna Morris (“Mor-rises”) obtained a temporary injunction enjoining Jack and Jodi DeNina (“DeNinas”) from maintaining their thirteen-foot diameter satellite disc at their home in the Bammel Forest subdivision. The DeNinas bring four points of error in their appeal from the temporary injunction. They argue (1) the cause was dismissed by operation of law; (2) the disc violates no provision of the Agreement for Modification of Restrictions; (3) the Order for Temporary Injunction fails to recite legally sufficient reasons for its issuance; and (4) the appel-lees failed to prove the injunction was necessary to prevent irreparable harm. We overrule these points of error and affirm.

In their first point of error the DeNinas argue the trial court abused its discretion in signing the Order for Temporary Injunction because the case should have been dismissed. They argue the case should have been dismissed because although the Morrises are named as parties in the style and body of the Original Petition, they are omitted from the body of the Plaintiff’s First Amended Original Petition for Temporary Injunction and Permanent Injunction. They further argue, citing Tex.R. Civ.P. 65 and King v. Air Express International Agency, Inc., 413 S.W.2d 838, 839 (Tex.Civ.App. — Houston 1967, no writ), the omission dismissed the Morrises from the suit and thus only the Civic Club was left as a party plaintiff. The DeNinas contend the Civic Club has no standing to sue, and therefore, the cause became a nullity upon [197]*197the filing of the Plaintiff’s First Amended Original Petition for Temporary Injunction and Permanent Injunction. They conclude that no cause existed in which the Plaintiffs' Second Amended Original Petition for Temporary Injunction and Permanent Injunction, which names the Morrises in its style and in its body, could be filed.

We disagree with the DeNinas’ argument. The Plaintiff’s First Amended Original Petition for Temporary Injunction and Permanent Injunction did not operate to dismiss the Morrises as parties plaintiff. Texas Rule of Civil Procedure 65 provides that amended pleadings supersede original proceedings. Zock v. Bank of the Southwest National Association, Houston, 464 S.W.2d 375, 376 (Tex.Civ.App. — Houston [14th Dist.] 1971, no writ). The issue presented here, however, is whether a subsequent pleading filed exclusively by one party supersedes a prior pleading filed by another party. We hold that it does not.

The Civic Club and the Morrises were originally represented by Adams & Adams, P.C. Adams & Adams filed the Original Petition on behalf of both parties. Later, however, the Civic Club substituted the law firm of Cutrer, Jefferson, Aguren, Bond & Valka for the firm of Adams & Adams, P.C. The Morrises did not join in the Motion to Substitute Attorneys. After the court granted the Motion to Substitute Attorneys, Cutrer, Jefferson, Aguren, Bond & Valka filed, on behalf of the Civic Club only, the Plaintiff’s First Amended Original Petition for Temporary Injunction and Permanent Injunction.

Additionally, the First Amended Original Petition does not purport to apply to the Morrises. The word “plaintiff” in the instrument’s caption is written in the singular possessive, i.e., “Plaintiff's”. If the First Amended Original Petition were intended to pertain also to the Morrises, the word would have been written in the plural possessive, i.e., “Plaintiffs’ ”, as it was in the Second Amended Original petition. Furthermore, the plaintiff’s First Amended Original Petition addresses the court as follows: “BAMMEL FOREST CIVIC CLUB [not mentioning the Morrises], Plaintiff, complains of JACK DeNINA and wife, JODI DeNINA, Defendants_” (emphasis added). This petition does not purport to speak for the Morrises.

The DeNinas argue that although the Morrises were not represented by Cutrer, Jefferson, Aguren, Bond & Valka and although the First Amended Original Petition does not purport to speak for the Morrises, the Morrises are nonetheless bound by the pleading filed by that firm. The DeNinas cite King v. Air Express International Agency, Inc., 413 S.W.2d 838, 839 (Tex.Civ.App. — Houston 1967, no writ) for this proposition. In King, the plaintiff’s first amended original petition omitted All Pet Center, Inc. as a party defendant. The court of appeals held that this omission dismissed All Pet Center, Inc. from the suit. Thus, in King, the plaintiff’s amended pleading operated only against the pleader itself; the pleading precluded the plaintiff from pursuing a possible defendant. Here, under the application proposed by the DeNinas, the amended petition would operate not only against the pleader but against another party plaintiff as well. For this reason, King does not help the DeNinas’ argument.

Moreover, we have found no case which holds a pleading by one party plaintiff may dismiss another party plaintiff. We refuse to adopt such a rule here because to do so would contravene the Mor-rises’ constitutional right of access to the courts. Tex.Const. art. 1, § 13. See IBEW, Local Union No. 59, AFL v. Whitley, 278 S.W.2d 560, 562-63 (Tex.Civ.App. —Waco 1955, writ ref’d n.r.e.) (clause in agreement requiring arbitration of disputes could not deprive electrical contractor of access to courts). A party’s right to bring and maintain a lawsuit should not be infringed when that party does nothing to justify contravening that right. We hold that the Plaintiff’s First Amended Original Petition for Temporary Injunction and Permanent Injunction did not operate to dismiss the Morrises. Thus, their cause of [198]*198action was never dismissed. We overrule the appellants’ first point of error.

The DeNinas argue in their second point of error that the trial court abused its discretion in granting the temporary injunction because the antenna does not violate the Agreement for Modification of Restrictions. A trial court possesses broad discretion in issuing temporary injunctions, and its rulings should not be overturned absent a clear abuse of that discretion. Karamchandani v. Ground Technology, Inc., 678 S.W.2d 580, 582 (Tex.App. — Houston [14th Dist.] 1984, writ dism’d). The DeNinas are signatories to the Agreement for Modification of Restrictions. The Morrises contend the antenna violates the following three agreement provisions:

I.

All lots in said subdivisions shall be used for residential purposes only and no structure shall be erected, altered or placed or permitted to remain hereafter on any residential lot designated on the plat of said subdivisions other than one detached single family dwelling, one or two stories in height, and a private garage with carport....

XXIV.

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712 S.W.2d 195, 1986 Tex. App. LEXIS 12957, Counsel Stack Legal Research, https://law.counselstack.com/opinion/denina-v-bammel-forest-civic-club-inc-texapp-1986.