Home/Court of Appeals of Texas/Underwood v. Webb

Underwood v. Webb

544 S.W.2d 187, 1976 Tex. App. LEXIS 3400
CourtCourt of Appeals of Texas
DecidedNovember 30, 1976
Docket5645
StatusPublished
Cited by5 cases

This text of 544 S.W.2d 187 (Underwood v. Webb) 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
Underwood v. Webb, 544 S.W.2d 187, 1976 Tex. App. LEXIS 3400 (Tex. Ct. App. 1976).

Opinions

OPINION

McDONALD, Chief Justice.

This is an appeal by plaintiff Underwood from judgment non obstante veredicto she take nothing in her suit to declare “residential use only” restrictions no longer in effect as to her lots in Huaco Heights Addition to the City of Waco.

Plaintiff Underwood filed this suit as a class action against all present owners of lots in the Huaco Heights Addition to the City of Waco, for declaratory judgment that the deed restrictions against non residential use of plaintiff’s lots 16, 15 and one-half of 14 in block 5, were no longer enforceable.

Trial was to a jury which found:

1) Plaintiff’s property is no longer reasonably suitable for residential purposes.
2) The use of plaintiff’s property for non residential purposes would not materially affect other persons in the Huaco Heights Addition in the enjoyment of their property for residential purposes.
3) The removal of plaintiff’s property from the restriction would not harm those owning property in Huaco Heights Addition who wish to preserve the residential character of the Addition.
4) The failure of any owner in the Huaco Heights Addition to contest to finality the commercial use of the Educators’ Credit Union property constituted an abandonment of the general plan and scheme to restrict the entire Huaco Heights Addition.
5) At the time John McNamara agreed to dismiss his suit against the Educators’ Credit Union, the proposed use of the Credit Union property was a substantial non residential use of the property.
6) The agreement of John McNamara to dismiss his contest of the use of the Educators’ Credit Union property for non residential purposes for $5000, was a waiver of his right to enforce said restriction as to other property in the Addition.

The trial court first rendered judgment on the verdict releasing plaintiff’s property from the non residential use restriction, but thereafter granted defendant McNamara’s Motion for Judgment Non Obstante Vere-dicto; set the original judgment aside; and rendered judgment plaintiff take nothing.

Plaintiff appeals on 2 points:

1) The trial court erred in rendering Judgment Non Obstante Veredicto.
2) The trial court erred in setting aside the judgment on the verdict it rendered for plaintiff.

A schematic diagram of Huaco Heights Addition follows:

[189]*189

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Underwood v. Webb
544 S.W.2d 187 (Court of Appeals of Texas, 1976)

Cite This Page — Counsel Stack

Bluebook (online)
544 S.W.2d 187, 1976 Tex. App. LEXIS 3400, Counsel Stack Legal Research, https://law.counselstack.com/opinion/underwood-v-webb-texapp-1976.