Robert Whorton owned a home located in Point Lookout West Subdivision in San Jacinto County. Point Lookout West, Inc. filed suit against Whorton for alleged violations of the deed restrictions, seeking to enjoin him from directly or indirectly operating a mail-order business from his home. Whorton answered claiming discrimination in singling him out when others were also in violation of the restrictions, alleging that the restrictions had been waived and that the business was incidental to the use of his residence. The trial judge entered the following order, in pertinent part:
*Page 202"The court after examining the pleadings, hearing the evidence, and noting the argument of counsel, is of the opinion that the Defendant should have Judgement.
"It is accordingly ORDERED, ADJUDGED and DECREED that the Defendant have Judgment and that Plaintiff's petition be denied in all matters.
"It is FURTHER ORDERED that Defendant shall not expand his business at his present location, and, that he is enjoined from hiring additional employees to operate the mail-order business out of his residence.
"It is FURTHER ORDERED that Defendant shall cease from using commercial freight trucks and parcel post trucks for his business operations from his residence after 90 days."
Whorton appeals the latter portion of the order. He alleges the trial court erred in granting the injunction because:
(1) the restrictive covenant does not prohibit the activities carried on by Whorton,
(2) he proved waiver and laches, and
(3) it is an expansion of the restrictions.
The evidence showed that Whorton operated a mail-order business out of his home. Whorton would receive packages by commercial shipper and then would ship small electrical components. The receipt of packages was on an infrequent basis, but the shipping was on a daily basis by United Parcel Service. Whorton testified the business was conducted in his garage by himself, his wife and one employee. Other than the delivery trucks, there was no evidence of any business activity such as outside signs, walk-up customers, parking, etc.
Neither party requested findings of fact and conclusions of law; therefore, all questions of fact are presumed found in support of the trial court's judgment, and the judgment must be affirmed if it can be upheld on any legal theory that finds support in the evidence. Lassiter v. Bliss, 559 S.W.2d 353 (Tex. 1977). The judgment or order in this case, however, appears to be inconsistent. On the one hand, it denies Point Lookout's petition in all matters. On the other hand, it grants Point Lookout partial injunctive relief. The question thus remains: what legal theory exists that finds support in the evidence? We find no evidence to support Whorton's defense of waiver. There was some evidence that others were operating small businesses in their homes, but no evidence that this was to the level of leading the average man to conclude that the restriction had been waived. NewJerusalem Baptist Church, Inc. v. City of Houston, 598 S.W.2d 666 (Tex.Civ.App. — Houston [14th Dist.] 1980, no writ). Nor is there any evidence that the violations were substantial in nature and materially affected the use of the land for residential purposes. Stephenson v. Perlitz,537 S.W.2d 287 (Tex.Civ.App. — Beaumont 1976, writ ref'd n.r.e.). Likewise, there is no evidence to support the defense of laches. Whorton bought his property in late 1984. Point Lookout started their enforcement proceedings by letter in the first part of 1985 and initiated suit in September 1985. This is certainly diligence, and therefore, laches can be no defense.
This leads to the conclusion that the trial court must not have found violations of the deed restrictions, but that the business use by Whorton was incidental to the residential use. There is evidence to support this finding. This finding, however, is not consistent with that portion of the order which enjoins Whorton. We, therefore, sustain Whorton's point of error number one. We affirm that portion of the judgment which denies Point Lookout's relief. We reverse that portion of the judgment which enjoins Whorton and dissolve the injunction.
Having done so, we overrule Point Lookout's cross-point wherein it seeks attorney's fees. For, under TEX.PROP.CODEANN. § 5.006(a) (Vernon 1984), the asserting party must prevail in order to be entitled to attorney's fees.
AFFIRMED IN PART, REVERSED AND RENDERED IN PART.