Guajardo v. Neece

758 S.W.2d 696, 1988 Tex. App. LEXIS 2724, 1988 WL 115810
CourtCourt of Appeals of Texas
DecidedOctober 13, 1988
Docket2-88-073-CV
StatusPublished
Cited by17 cases

This text of 758 S.W.2d 696 (Guajardo v. Neece) 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
Guajardo v. Neece, 758 S.W.2d 696, 1988 Tex. App. LEXIS 2724, 1988 WL 115810 (Tex. Ct. App. 1988).

Opinion

OPINION

FARRIS, Justice.

This is an appeal from a temporary injunction order requiring appellant Humberto Guajardo to halt construction of a dog kennel on his land until it can be determined at trial whether the construction violates existing deed restrictions.

We affirm.

Guajardo purchased undeveloped property in Tranquil Acres, a Tarrant County development, in October, 1987, for the purpose of constructing and operating a breeding and boarding dog kennel.

Appellees Neece and Gray filed suit for injunction on February 18,1988, asking the court to enforce the following deed restriction:

No noxious or offensive trade or activity shall be carried on upon any lot, nor shall anything be done thereon which may be or become an annoyance or nuisance to the neighborhood.

The trial court found that the operation of the proposed facility would violate the deed restriction and granted a temporary injunction, entering findings of fact and conclusions of law in support of its order.

In four points of error, Guajardo complains that the trial court abused its discretion in granting the temporary injunction. In points one and two, Guajardo complains there is no evidence or insufficient evidence to support the findings of fact and conclusions of law upon which the temporary injunction is based. In his third point of error, Guajardo asserts that the temporary injunction violates the public policy of this state to foster the care, health, and maintenance of domesticated animals. In his fourth point, Guajardo argues that the injunction violates the public policy of the state by operating as an extreme and un *698 reasonable restriction of Guajardo’s use of his property. We hold that the trial court did not abuse its discretion. The grant of a temporary injunction is supported by ample evidence and does not violate the public policies of this state. Guajardo’s points of error are overruled and the judgment of the trial court is affirmed.

An order granting or denying a temporary injunction is reviewable only for a clear abuse of judicial discretion. Davis v. Huey, 571 S.W.2d 859, 862 (Tex.1978). The merits of the underlying case are not presented for review and the appellate court may not substitute its judgment for that of the trial court. Id. at 861-62. In reviewing the trial court’s grant of the temporary injunction, our task is to establish that a reasonable basis exists for the trial court’s conclusion that the applicant has shown a probable right to recover on the merits. Camp v. Shannon, 348 S.W.2d 517, 519 (Tex.1961).

In his first two points, Guajardo challenges the evidence supporting the trial court’s findings and conclusions, specifically, those which hold that the construction of the proposed kennel would violate the deed restriction because it would constitute a “noxious or offensive trade or activity” and “may be or become an annoyance or nuisance to the neighborhood,” resulting in injury to Gray and Neece, for which they have no adequate legal remedy. After reviewing the record, we find there is ample evidence to support the court’s findings and conclusions. The trial court did not abuse its discretion in granting the injunction based upon them.

Findings of fact entered in a case tried to the court are of the same force and dignity as a jury’s verdict upon special issues. City of Clute v. City of Lake Jackson, 559 S.W.2d 391, 395 (Tex.Civ.App.—Houston [14th Dist.] 1977, writ ref’d n.r.e.). The trial court’s findings of fact are reviewable for legal and factual sufficiency of the evidence to support them, First Nat. Bank in Dallas v. Kinabrew, 589 S.W.2d 137, 146 (Tex.Civ.App.—Tyler 1979, writ ref’d n.r.e.), by the same standards as are ap-Dlied in reviewing the legal or factual sufficiency of the evidence supporting a jury’s answer to a special issue. Okon v. Levy, 612 S.W.2d 938, 941 (Tex.Civ.App.—Dallas 1981, writ ref'd n.r.e.). In reviewing an assertion that the evidence is insufficient to support a finding of fact, we are required to consider all of the evidence in the case. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965).

The trial court received evidence of the residential nature of the neighborhood, the specifications and plans for operating the proposed facility and neighborhood sentiments regarding the same. The evidence supports the trial court’s findings and conclusions that a dog kennel would constitute an offensive trade in a residential community and may become an annoyance or nuisance to the neighborhood, diminishing the quality of life therein and adversely affecting the value of property.

In his brief Guajardo argues that the injunction should not have been granted because activities then taking place (i.e., initial construction preparation) on Guajar-do’s property did not constitute a noxious or offensive trade and did not amount to activity which might annoy the neighborhood. We are not persuaded. In order to prevail, a party seeking a temporary injunction to enforce a restrictive covenant need only prove an intent to do an act that would breach the covenant. As the purpose of the temporary injunction is to maintain the status quo until the applicability of the restrictive covenant is finally determined, “[t]he mere fact that a breach ... is intended constitutes sufficient ground for is-suance_” Chandler v. Darwin, 281 S.W.2d 363, 367 (Tex.Civ.App.—Dallas 1955, no writ) (emphasis in original).

In exception to the general rule, proof that actual damage will be sustained or irreparable injury suffered need not be offered. It is sufficient to show a distinct or substantive breach will result. Gunnels v. No. Woodland Hills Community Ass’n, 563 S.W.2d 334, 337 (Tex.Civ.App.— Houston [1st Dist.] 1978, no writ); Protestant Episcopal Church Council v. McKinney, 339 S.W.2d 400, 403 (Tex.Civ.App.—Eastland 1960, writ ref'd).

*699 Thus, we find there is sufficient evidence to support the findings of fact and conclusions of law upon which the injunction is based; the trial court did not abuse its discretion in granting the temporary injunction. Points of error one and two are overruled.

In his third point of error, Guajar-do asserts that enjoining the construction and operation of the proposed kennel violates the public policy of the state in favor of caring for domesticated animals and as such, constitutes an abuse of discretion. We disagree.

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Bluebook (online)
758 S.W.2d 696, 1988 Tex. App. LEXIS 2724, 1988 WL 115810, Counsel Stack Legal Research, https://law.counselstack.com/opinion/guajardo-v-neece-texapp-1988.