dissenting from denial of Motion for Rehearing.
Because the majority declines to reconsider and alter its opinion in light of appellee’s motion for rehearing, I respectfully dissent. I would grant both of appellee’s points of error on rehearing, and affirm the trial court’s ruling in favor of appellee.
I suggest that a fundamental error in the reasoning of the majority lies in its assumption of the continuing value as precedent of Brown v. Wehner, 610 S.W.2d 168, 169-70 (Tex.App.—Houston [1st Dist.] 1980, writ ref'd n.r.e.), given the passage of Tex.PROP. Code Ann. § 202.003, subsequent to the Brown decision.
If I understand the majority correctly, it reasons: (1) the restrictions are not ambiguous; (2) the restrictions contain no express prohibition against more than one dwelling house per lot; (3) the restrictions contain no express prohibition from subdividing the lots as originally platted;1 and (4) the appellant’s proposal would not violate any other prohibition (such as set back requirements) contained in the restrictions. The majority expresses its conclusion as “[g]iven that the lots can be subdivided, nothing prohibits building a second home on the new lots created by subdividing the existing lots, provided that the set back requirements can be met. There is nothing in the restrictions to show that subdivision can only occur if it serves to increase the size of a homesite.” majority op. at 909. The majority cites Brown as supporting its holding. Id.
Although I think that the restriction sought by the homeowners can be fairly implied from the unambiguous language of the covenants (see my previous dissent), it is true that no explicit provision exists in the restrictions to prohibit the manner in which appellants seek to use their land. It is equally true that nothing contained in the restrictions explicitly permits the planned use. I suggest the proper application of 202.003 to the interpretation of the restrictive covenants requires us to uphold the restriction of land use desired by the homeowners association.
Would Brown have been decided the same way if our court had had 202.003 to consider during its deliberations? See Crispin v. Paragon Homes, Inc., 888 S.W.2d 78, 83 (Tex.App.—Houston [1st Dist.] 1994, writ denied). I believe the plain language of the statute alters fundamentally the legal view of restrictive covenants. “For years the Supreme Court said the courts do not and should not favor restrictive covenants; in 1987, the Legislature legislatively overruled the Supreme Court and told the courts to favor restrictive covenants.” Crispin, 888 S.W.2d at 84 n. 1.
“In construing the pertinent and relevant covenants so that their purposes, intents, intendments, and intentions be made effective, it is mandatory that the fact-finder ascertain such elements as the purposes, intents, and intentions of the developers in preparing and making a public record of the restrictive covenants, restrictions, and other limitations governing....” Sargent v. Smith, 863 S.W.2d 242, 260 (Tex.Civ.App.— Beaumont 1993, no writ).
I would consider all of the evidence which the majority finds “inadmissible, objected to or not, [and] ... without probative force_” majority op. at 910. When properly considered, I find the evidence overwhelming in supporting the conclusion of the trial judge.
I would grant rehearing and affirm the judgment of the trial court.
. On this issue, the majority looks at the evidence and notes that Polly Ranch had previously subdivided its originally platted lots. This observation is used to buttress its reading of the restrictions to contain no prohibition against subdivision of lots generally. However, at the same time the majority looks at this evidence to support its view of the restrictions, it ignores the same evidence as indicating how in fact the previous subdivision of the lots had taken place. All other lots "subdivided” at Polly Ranch previous to this case resulted in larger lots, not smaller ones. The trial judge apparently found this relevant and important.