This dissent is respectfully filed.
The Majority points out that the trial court strictly ordered Mr. Whorton not to expand his business at his present residential location and that he was enjoined from hiring additional employees to operate his mail-order business out of his residence.
The Majority also, at least impliedly, finds and determines that Whorton was operating a mail-order business out of his home. Please notice that his business is identified and found to be a "mail-order business out of his residence." Please notice also that the trial court ordered Whorton not to "expand his business." The district judge further enjoined him from *Page 203 "hiring additional employees to operate the mail-order business out of his residence." Very importantly, the district court ordered the defendant Whorton to "ceasefrom using commercial freight trucks and parcel post trucksfor his business operations." (emphasis added). It should be borne in mind that this is a new subdivision.
Further, the Majority finds that there is "no evidence" to support Whorton's defense of waiver, and that there was no evidence to lead the average man to conclude that the restriction had been waived. Since there was no waiver, there was no probative evidence of laches on the part of the Appellee.
The Majority agrees that Whorton received packages from a commercial shipper and, in turn, actually shipped commercially different electrical components. Whorton's shipping of the components was on a daily basis through a commercial carrier. The Majority even writes:
"The judgment or order in this case, however, appears to be inconsistent."
Indeed, the order and judgment below are inconsistent, to the extent that some of the paragraphs are mutually destructive of others.
Affirmatively, our Court finds that there is simply no evidence to support the defense of laches. I agree. Whorton bought his property in the latter part of 1984 and the Appellee started these enforcement proceedings in the first part of 1985.
The restriction involved is clearly set out in the declaration of restrictions. It very cogently and compellingly prohibits the use of any lot or lots in the subdivision for any use other than "single-family residence purposes."
Under this record, it is abundantly clear, in my opinion, that this restriction was glaringly violated. Certainly, the business activity, as admitted by Whorton and as found by the trial court, could not in law be incidental to a residential use. In fact, it was contrary to residential use. Hence, under this record, Whorton should have been enjoined from engaging in the continuing conduct of his blatantly commercial, business use.
But, in any event, Point Lookout West's cross-point seeking attorney's fees should have been granted. TEX.PROP.CODEANN. § 5.006(a) (Vernon 1984), in relevant part, provides:
"In an action based on breach of a restrictive covenant pertaining to real property, the court shall allow to a prevailing party who asserted the action reasonable attorney's fees in addition to the party's costs and claim."
It is obvious that the legislature meant this statute to be construed as a mandatory award of a reasonable attorney's fee since it used the words "shall allow to a prevailing party." The cases are legion that "shall" carries with it the definite meaning and sure connotation of being a mandatory command. Certainly, as a practical matter, Point Lookout West, Inc., the Appellee herein, was a prevailing party. Appellee did not win a complete victory, although I think it should have. But it certainly prevailed because the district court ordered the Appellant not to expand his business — note again that the trial court held that Whorton was engaged in business — and that Wharton was also enjoined from hiring additional employees to operate his mail-order business out of his residence. Point Lookout West, Inc., obtained further very important relief for the simple reason that Whorton was ordered to cease using commercial freight trucks and parcel post trucks in his business operation. Hence, a logical and reasonable interpretation of the phrase "prevailing party" as applied here would be that Point Lookout West, Inc., was definitely a prevailing party. A reasonable attorney's fee should have been awarded. Such a reasonable award would be consistent with and supportive of the legislative intent.
It is common knowledge that home owners pay ample, sufficient, if not high consideration for these residential lots. They deserve the protection of this reasonable restriction. *Page 204