Whorton v. Point Lookout West, Inc.

This second dissent is respectfully filed. Reference is here made to a prior dissent. 736 S.W.2d 201 (Tex.App. — Beaumont 1987), reversed per curiam, 742 S.W.2d 277 (Tex. 1987). Our Ninth Court's opinion, again, points out that Mr. Whorton had been operating a mail-order business from his residence in the Point Lookout West, Inc., (PLW) Subdivision.

The residential area restrictions specifically provided that no lot shall be used except for a single family residence and our record glaringly demonstrates that the extent of Whorton's business was such that his business required more than a single telephone or a single pickup truck in the operation of his business. Hence, a second violation of the restrictive covenants is proved.

The majority now permits the residence to be used as a place to store the goods that Whorton was engaged in selling at his residence, allowing, in practical effect, Whorton to maintain a warehouse or storehouse. I would hold that such storage of goods amounts to a type of warehousing operation that is clearly contrary to the restrictive covenants. Also, this business of storing goods, or warehousing them, is a business activity and operation beyond the use of a single telephone, or the use of a single pickup truck. Further, by our court holding that Whorton operated a "mail-order business from his residence" clearly permits him to conduct a business requiring more than a single telephone or a single pickup delivery truck. This holding is unquestionably a direct violation of the residential area restrictions.

In view of these clear violations and in view of the reliefs granted to Point Lookout West, Inc., I would reiterate my position concerning Point Lookout West's right to obtain a reasonable attorney's fee. TEX.PROP.CODE ANN. Sec.5.006(a) (Vernon 1984). This issue of attorney's fees, in our court, has been properly preserved and presented. I would hold that it is just, equitable and eminently fair to construeTEX.PROP.CODE ANN. Sec. 5.006(a) (Vernon 1984) to allow Point Lookout West, Inc., to recover a reasonable attorney's fee, especially in view of the record before us. It should be borne in mind that, in addition to the strong statements made by the trial court from the bench, in favor of Point Lookout West, the bench's formal order recited as follows, to-wit:

"It is FURTHER ORDERED that Defendant [Robert Whorton] 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 [Robert Whorton] shall cease from using commercial freight trucks and parcel post trucks for his business operations from his residence, after 90 days." (Emphasis added)

This order and the decision below certainly were important victories for Point Lookout West, Inc. It was certainly the prevailing party as to the orders and pronouncements of the trial court. Hence, Point Lookout West should recover its attorney's fee.

Experience teaches that, generally, the history of this classification of litigation is that usually the individual homeowners, in the past, have had to finance expensive and protracted litigation to enjoy the benefits of residential restrictive covenants. It is *Page 312 not atypical for a hearing on a temporary restraining order to be conducted. Then, after several continuances, there is an almost full trial on the hearing on the temporary injunction. Usually, an appeal follows. After the appeal, a lengthy and heated trial on the merits is often conducted. These several legal proceedings are exhausting to the small homeowner. The Solons of Texas intended to remedy this horrendous problem by mandating that the prevailing parties recover a reasonable attorney's fee rather than placing this financial burden on the householder. Here, Point Lookout West, Inc., is certainly the prevailing party.