L. J. Scott and his wife Effie Ruth have appealed a temporary mandatory injunction ordering them to remove their house trailer from their lot in the Flower Mound Farms Addition in Denton County, Texas. Bob Rheudasil, Jim Watts and John Stockton (Plaintiffs), as owners of property within the Addition, brought this suit to enforce a restrictive covenant filed of record by Flower Mound Farms, Inc., a defunct Texas corporation.
The pertinent provisions of the restrictive covenant relied upon by the Plaintiffs read as follows:
By their first two points of error the Scotts contend that the trial court erred in granting the temporary mandatory injunction because the express provisions of the covenant deprive the Plaintiffs of standing to enforce the covenant and that, therefore, the Scotts have been given no notice, actual or constructive, that Plaintiffs have any right of enforcement.
Enforcement of a restrictive covenant by one grantee against another grantee generally requires a showing of a general plan or scheme of development and an intent of the parties to the covenant that the restrictive scheme inure to the benefit of all owners of property in the addition. Bein v. McPhaul, 357 S.W.2d 420 (Tex.Civ. App.—Amarillo 1962, no writ). The Scotts do not dispute that the restrictive covenant here is part of a general development scheme. It is their contention, however, that in the absence of an assignment etc., the terms of the covenant give the developer, Flower Mound Farms, Inc., the exclusive right of enforcement.
The Scotts cite Monk v. Danna, 110 S.W.2d 84 (Tex.Civ.App.—Dallas 1937, writ dism'd) as the reported case. closest. In Monk the appellants were temporarily restrained from violating a certain restrictive provision in their deed. It read in part:
In response to appellants' argument that no binding restrictive covenant existed in favor of the appellees because no written evidence existed that the covenants inured to their benefit, the court stated:
Although the appellate court in Monk reversed the trial court and rendered a decision dissolving the temporary injunction for the reason that the trial court abused its discretion in granting the temporary writ, it overruled the appellants' point as to "standing".
The posture of this case being in the nature of temporary injunction the equities appear to be on the side of holding, pending a trial on the merits, that the Plaintiffs have standing to enforce the protective covenant. The fact that the entity to which the right of enforcement was ostensibly reserved is now defunct, in conjunction with the fact that such entity has now sold all the lots and, in doing so, relied upon the existence of the covenant as a selling point lends strongly to an equitable right of enforcement being vested in the grantees—at least as far as a temporary injunction is concerned.
Upon a trial on the merits the burden will be on the Plaintiffs to show that the covenant was intended to inure to their benefit and that the Scotts had notice of such intent when they purchased their lot. Monk v. Danna, supra; Hooper v. Lottman, 171 S.W. 270 (Tex.Civ.App.—El Paso 1914, no writ). It is well settled that the intention of the parties imposing a covenant is to be ascertained from the language of the covenant itself construed in connection with the surrounding circumstances. Bein v. McPhaul, supra; Hooper v. Lottman, supra. It is conceded by the Scotts that they had actual notice of the restrictions. Their position is, however, that they also had notice that Flower Mound Farms, Inc., the entity ostensibly possessing the exclusive enforcement right, was defunct.
The Scotts' third point of error asserts that the restrictive covenant has been abandoned. In support of this contention the Scotts argue that there was abandonment shown by the fact that the property owners did not seek authorization from the developer to continue to enforce the covenant before the developer became defunct. They also assert that Plaintiff-Watts indicated abandonment by his "suggestion" that the Scotts consider putting their mobile home on a lot belonging to a relative which was also located in Flower Mound Farms Addition.
The fact remains, however, that no house trailers are now located within the Addition nor is there any evidence that any house trailers have ever been located within the Addition. "To prove abandonment of a general scheme or plan, it must be shown that the violation is so extensive and material as reasonably to lead to the conclusion that the plan had in fact been abandoned in the restricted area." Witmer v. McCarty, 566 S.W.2d 102, 104 (Tex.Civ.App.—Beaumont 1978, no writ); Watson v. Wiseheart, 258 S.W.2d 350, 353 (Tex.Civ.App.—Galveston 1953, writ ref'd n. r. e.). We hold that there is insufficient evidence to establish abandonment and we therefore overrule the Scotts' third point of error.
The Scotts' fourth point of error asserts that the trial court erred in issuing the injunction because, in doing so, it impermissible changed the status quo of the parties. The gist of the Scotts' argument on this point is that the Plaintiffs have failed to show that extreme hardship and irreparable injury will be suffered if a temporary injunction is not granted.
The status quo to be preserved by a temporary injunction is the last, actual, peaceable, noncontested status that preceded the pending controversy. We hold the status quo in this case to be the absence of a trailer house in the Flower Mound Farms Addition.
In addressing the argument raised as to there being no showing of irreparable injury or extreme hardship we find the law in Texas to be well stated in Protestant Episcopal Church Council of the Diocese of Texas v. McKinney, 339 S.W.2d 400, 403 (Tex.Civ.App.—Eastland 1960, writ ref'd):
We hold the presence of the trailer house to be a distinct violation of Paragraph "E" of the restrictive covenant appertaining to Flower Mound Farm Addition. We overrule the Scotts' fourth point of error.
The judgment of the trial court granting a temporary injunction is affirmed.