Zelios v. City of Dallas

568 S.W.2d 173, 1978 Tex. App. LEXIS 3403

• Court: Court of Appeals of Texas
• Decided: June 6, 1978
• Docket: 19541
• Status: Published

Opinions

ON REHEARING

ROBERTSON, Justice.

Our original opinion is withdrawn and the following opinion is substituted therefor.

The City of Dallas sued Nick Zelios, seeking a mandatory injunction to force removal of a frame structure built on the side of his condominium. The City alleged that the structure was built without the building permit and safety inspections required by the Dallas Building Code and Comprehensive Zoning Ordinance, and that it extended into the side yard which, under the ordinance, is required to remain unobstructed. The City further asserted that as a result of the lack of safety inspections, the improvement might pose a serious threat to the safety of persons and property within or near the structure. The trial court issued a mandatory injunction directing Zelios to remove the structure, and Zelios now appeals. We affirm.

The primary question on this appeal is whether the trial court abused its discretion in ordering the mandatory injunction. The resolution of this issue depends upon whether the findings of fact filed by the trial court support its decree. According to the findings, the subject structure is a one-story home improvement approximately nine feet wide. It occupies virtually the entire ten-foot side yard for a length of forty-four feet adjacent to and adjoining Zelios’ condominium unit. The structure contains electrical wiring, and has no foundation other than that provided by its attachment to the condominium. The court further found that Zelios “knew he was doing wrong in adding the structure” and that the Board of Adjustment of the City of Dallas had denied Zelios’ application for a variance in the side yard requirements on two occasions. The sufficiency of the evidence to support these findings has not been challenged, and accordingly, we must accept the findings as a correct recitation of the facts. Katz v. Rodriguez, 563 S.W.2d 627, 631 (Tex.Civ.App. — Corpus Christi 1978, no writ); Bilek v. Tupa, 549 S.W.2d 217 (Tex.Civ.App. — Corpus Christi 1977, writ ref’d n. r. e.); Texas State Board of Pharmacy v. Gibson’s Discount Center, Inc., 541 S.W.2d 884 (Tex.Civ.App. — Austin 1976, no writ).

The City argues that since these findings show a willful violation of the ordinance, the mandatory injunction was proper. We agree. Although we have found no Texas authority, it is the general rule in other jurisdictions that mandatory injunc-tive relief is proper when the defendant acts with full knowledge that his acts are wrongful. See, e. g., Welton v. 40 East Oak Street Building Corp., 70 F.2d 377 (7th Cir.1934); Morgan v. Veach, 59 Cal.App.2d 682, 139 P.2d 976 (1943); Flower Haven, Inc. v. Palmer, 502 P.2d 424 (Colo.App.1972); Hollingsworth v. Szczesiak, 32 Del.Ch. 274, 84 A.2d 816 (1951); Johnson v. Pattison, 185 N.W.2d 790 (Iowa 1971); MeCavic v. DeLuca, 233 Minn. 372, 46 N.W.2d 873 (1951); Wilson Concrete Co. v. County of Sarpy, 189 Neb. 312, 202 N.W.2d 597 (1972); Higgins v. Builders and Finance, Inc., 20 N.C.App. 1, 200 S.E.2d 397 (1974); Williamson v. Needles, 191 Okl. 560, 133 P.2d 211 (1942); McCausland v. Jarrell, 136 W.Va. 569, 68 S.E.2d 729 (1952).

Zelios argues that enforcement of the ordinance by mandatory injunction will damage him in an amount which is grossly disproportionate to the damage, if any, resulting from the violation. In essence, this argument urges us to reverse the trial court because it failed to “balance the equities” by considering the respective damage to the City and Zelios before issuing its order. We cannot accept this argument. Equity never aids in the commission of a wrong. Sanders v. Cauley, 52 Tex.Civ.App. 261, 113 S.W. 560 (1908, no writ). Consequently, the doctrine of balancing the equities cannot be invoked by a party guilty of intentional wrong. See Grey ex rel. Simmons v. City of Paterson, 60 N.S.Eq. 385, 45 A. 995 (1900); Stuart v. Lake Washington Realty Corp., 141 W.Va. 627, 92 S.E.2d 891 (1956); McCauslar v. Jarrell, supra. As the court stated in Welton v. 40 East Oak Street Building Corporation, 70 F.2d 377, 383 (7th Cir. 1934), a case in which the defendant’s violation was willful:

There is involved that immeasurable but nevertheless vital element of respect for, and compliance with, the health ordinance of the city. The surest way to stop the erection of high buildings in defiance of zoning ordinances is to remove all possibility of gain to those who build illegally-

We express no opinion on the City’s burden of proof if no willful violation is shown.

Affirmed.