Southwest Church of Christ v. Country Properties Homeowners

• Court: Court of Appeals of Texas
• Decided: December 5, 2023
• Docket: 05-22-01092-CV
• Status: Published

Opinion

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.

–2– 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

–3– 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

–4– 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:

–5– 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

–6– 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

–7– 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

–8– 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 –9– 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.

–10– 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

–11– 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

–12– 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

–13–