Washburn v. Krenek

684 S.W.2d 187, 1984 Tex. App. LEXIS 6876
CourtCourt of Appeals of Texas
DecidedDecember 20, 1984
DocketA14-84-369CV
StatusPublished
Cited by19 cases

This text of 684 S.W.2d 187 (Washburn v. Krenek) 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
Washburn v. Krenek, 684 S.W.2d 187, 1984 Tex. App. LEXIS 6876 (Tex. Ct. App. 1984).

Opinion

OPINION

DRAUGHN, Justice.

This is an appeal from a judgment permanently enjoining Appellants from performing certain acts and awarding attorney’s fees to the Appellees pursuant to the Texas Deceptive Trade Practices — Consumer Protection Act (DTPA). TEX.BUS. & COMM.CODE ANN. § 17.41 et seq. (Vernon Supp.1984). Appellants, R.A. Wash-burn, Larry C. Washburn, James M. Wash-burn, and Charles E. Washburn, Individually, and the Washburn Partnership, a partnership of Larry C. Washburn, James M. Washburn and Charles E. Washburn, were enjoined from conveying, selling, using, leasing, attempting to sell or give away certain properties for any purpose in violation of certain deed restrictions listed in the judgment. Larry, James and Charles Washburn are the sons of R.A. Washburn. Appellants raise ten points of error attacking the special issues submitted to the jury and challenging the applicability of the DTPA to this case. We affirm.

In June of 1979, Mr. C.W. Krenek met James Washburn, at Washburn’s home on Kimberlee Lane in Harris County, about purchasing a lot on which to build a home. Krenek had seen a sign located at the intersection of Miller Road No. 2 and Kim-berlee Lane which said:

Home Sites

Large Tracts

Restrictions

227-3979 Call 456-0381

The first phone number was that of Wash-burn and Company, a surveying company. The second number on the sign was the number of James Washburn.

At the meeting, James Washburn gave Krenek a plat showing the layout of several lots and a set of restrictions. This layout was introduced into evidence as Plaintiff’s Exhibit No. 1. On this plat were forty-four lots owned by the three Wash-burn brothers. Of these lots, three of them had previously been conveyed to the three brothers by their father R.A. Wash-burn. Also on the plat were tracts of land marked “Washburn Estate” and “acreage.” These tracts were owned by R.A. Wash-burn.

James Washburn then showed Krenek several lots on Kimberlee Lane that were for sale. Krenek asked who owned the remainder of the land. James Washburn responded that either R.A. Washburn or the three brothers owned all the lots in the area. Krenek testified that he was told that the set of restrictions that he was given applied to all the lots on the plat. Krenek did not purchase a lot from James Washburn after that visit.

A few days later, Krenek returned and met with R.A. Washburn at his home on Kimberlee Lane. R.A. Washburn and Kre-nek discussed several lots. After discussing a lot next to R.A. Washburn’s home, Krenek asked about restrictions. In response, R.A. Washburn said that he would restrict the lot as he had the three lots which he had given his sons. R.A. Wash-burn then gave Krenek a set of restrictions which were the same as the set he had received from James Washburn. Krenek was told by R.A. Washburn that the restrictions applied to all of the land.

Krenek, on July 18, 1979, bought a lot from R.A. Washburn and the same set of *190 restrictions were attached to his deed. The Kreneks then built a home on their lot.

In the fall of 1981, Krenek learned that the Appellants were attempting to sell and/or lease some of the property along Kimberlee Lane for commercial purposes. Krenek believed that the proposed commercial use of the property was in violation of the restrictions he had received. Krenek and his wife filed suit seeking that the proposed sale and/or lease of the property by Appellants be enjoined. Appellees’ Original Petition alleged that the Appellants had violated the DTPA in several respects. Trial was to a jury which found that the Appellants’ proposed sale and/or lease of the property was in violation of the DTPA. The trial judge entered judgment enjoining the sale or lease of the property for commercial purposes and awarded attorney’s fees to the Appellees. Appellants have properly and timely filed their appeal from that judgment.

In points of error one through eight, Appellants voice several objections over the special issues submitted to the jury. For example, point of error one is that the trial court erred in submitting the first special issue because “James M. Washburn did not own or have an interest in the property designated Acreage Tract and Washburn Estate on PX-1 and there is no evidence that he made such a representation to Mr. Krenek.” Regardless of the merits, each of Appellants’ first eight points of error must be overruled due to Appellants’ failure to preserve error in the court below.

In points of error five and six, Appellants complain that the trial court erred in submitting Special Issues Nos. six and seven. However, in the record, counsel for Appellants stated that he had no objections to those two issues. Any complaint as to a special issue is deemed waived unless specifically included in the objections. TEX.R. CIY.P. 274. By failing to object to Special Issues Nos. six and seven Appellants have waived their right to complain of defects concerning those issues. Points of error five and six are overruled.

Point of error one attacks the submission of Special Issue No. one. Point of error three is that the trial court erroneously submitted Special Issue No. three. The fourth point is that the trial court erred in submitting Special Issue No. four. At the trial level, Appellants did object to the submission of these issues. However, the objections at trial did not include the reasons listed in support of the points of error. When an Appellant does not object at trial to the submission of a special issue on the ground asserted on appeal, the objection is waived. Frost v. Sun Oil Co. (Delaware), 560 S.W.2d 467 (Tex.Civ.App.—Houston [1st Dist.] 1977, no writ); TEX. R.CIV.P. 274. Because the grounds listed in support of these points of error on appeal were not given as objections at the trial level, Appellants have waived their right to complain. Points of error one, three and four are overruled.

Point of error two complains that the second special issue was improperly submitted. In the record, Appellants’ counsel did not specifically list his objections to Special Issue No. two but rather adopted “the objection to Special Issue No. One and appl[ied] those to Special Issue No. Two for the same reasons that I have given for my objections to Special Issue No. One.” TEX.R.CIY.P. 274 provides that: “No objection to one part of the charge may be adopted by reference only.” Appellants, by merely adopting by reference the objections to one part of the charge, have waived the right to complain that Special Issue No. two was improperly submitted. Point of error two is overruled.

The seventh point of error is that: The lower court erred in submitting Special Issue No. 9 in that, again, the term “defendant” is employed, which would include the Washburn Brothers, and there is no evidence that the Washburn Brothers made any representation to Mr. Krenek that the restrictions on his lot conferred or involved certain rights. There was no basis in fact for the submission of this issue or the answer thereto by the jury.

*191 Appellants’ counsel objected to that issue on the basis that:

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Bluebook (online)
684 S.W.2d 187, 1984 Tex. App. LEXIS 6876, Counsel Stack Legal Research, https://law.counselstack.com/opinion/washburn-v-krenek-texapp-1984.