                                  NO. 07-08-0494-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL D

                                OCTOBER 26, 2009
                         ______________________________

                    ENRIQUE LETKEMAN and MARIA LETKEMAN,

                                                              Appellants

                                            v.

    ARTURO REYES, ANNA REYES, BRADY ROBINETTE, TERRI ROBINETTE,
               PEDRO SANCHEZ and ELENA SANCHEZ,

                                                      Appellees
                         _______________________________

    FROM THE COUNTY COURT AT LAW NO. THREE FOR LUBBOCK COUNTY;

              NO. 2008-562,386; HON. PAULA LANEHART, PRESIDING
                       _______________________________

                                     Opinion
                        ________________________________

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

      The matter before us involves the application of restrictive covenants to a house

being moved into the Patterson Estates subdivision. The house was originally built some

years ago and subsequently acquired by Enrique and Maria (Mary) Letkeman. The latter

had the abode cut in half, moved into Patterson Estates, and located on lot #2, a lot that

they intended to buy from Abe Friesen. Before completing the process, they were told by

one or more home owners in the development that their efforts violated several restrictive

covenants. Despite hearing these complaints, they continued their efforts. Suit to enforce
those covenants was initiated by Arturo and Anna Reyes, Brady and Terri Robinette, and

Pedro and Elena Sanchez. Each owned a home in the subdivision. Upon convening a trial

and receiving evidence, the trial court executed its judgment enjoining the Letkemans and

Friesen “from allowing the residential structure they moved” in “to remain on” the lot. They

were also given 60 days to comply with the directive.

       Though the Letkemans assert several issues on appeal, we need only address two

for they are dispositive of the appeal. And, after considering them, we conclude that the

judgment must be affirmed.

       Issue One – Covenant #16

       The first issue we address involves whether the house moved on to the property

was “pre-fabricated.” This is of import because restrictive covenant #16 stated that: “[n]o

pre-fabricated structures shall ever be permitted upon any lot, whether the same be moved

in or constructed on the lot.” (Emphasis added). If the Letkemans’ structure was “pre-

fabricated,” then moving it into the subdivision violated that covenant. Of course, they

argue that it was not. To them, the word encompassed only structures built in a factory and

then moved in sections or by wall panels onto a site where it was then constructed or

assembled into a house. Because the trial court interpreted the provision otherwise, it

purportedly erred. We overrule the contention and issue.

       Applicable Law

       Statute requires that restrictive covenants be “liberally construed” to give effect to

their purposes and intent. See TEX . PROP. CODE ANN . §202.003(a) (Vernon 2007).

Moreover, when interpreting them, we apply the general rules of contract construction.

Pilarcik v. Emmons, 966 S.W.2d 474, 478 (Tex. 1998); Rakowski v. Committee to Protect



                                             2
Clear Creek Village Homeowners’ Rights, 252 S.W.3d 673, 676 (Tex.App.–Houston [14th

Dist.] 2008, pet. denied); Owens v. Ousey, 241 S.W.3d 124, 129 (Tex.App.–Austin 2007,

pet. denied). Per those rules, we attempt to ascertain the true intention of the writer as

expressed in the instrument, Gulf Ins. Co. v. Burns Motors, 22 S.W.3d 417, 424 (Tex.

2000), by examining the writing as a whole and in light of the circumstances present at its

execution. So too does authority obligate us to assign to the words used their common

meaning. Wilmoth v. Wilcox, 734 S.W.2d 656, 657-58 (Tex. 1987). Finally, the exercise

in which we engage involves a question of law. Thus, we need not defer to the construction

assigned by the trial court; rather, we address the matter de novo. Raman Chandler

Props., L.C. v. Caldwell's Creek Homeowners Ass'n, 178 S.W.3d 384, 390 (Tex. App.–Fort

Worth 2005, pet. denied); see also Kothmann v. Rothwell, 280 S.W.3d 877, 879 (Tex.

App.–Amarillo 2009, no pet.).

       Application of Law

       As written in the covenants, the word in question contains the root “fabricated” and

prefix “pre.” The definitions assigned to the latter include “earlier than,” “prior to,” “before,”

MERRIAM -WEBSTER ’S COLLEGIATE DICTIONARY 975 (11th ed. 2003), or “in advance,” and

“beforehand”     to   name      a   few    of   the   most     common.         Dictionary.com,

http://dictionary.reference.com (last visited October 15, 2009). In turn, “fabricate” includes

such meanings as to “invent,” “create,” “construct,” “manufacture,” “to construct from

diverse and usually standardized parts,” MERRIAM -WEBSTER ’S COLLEGIATE DICTIONARY 447

(11th ed. 2003); or to “make by art or skill and labor,” and “make by assembling parts or

sections.” Dictionary.com, http://dictionary.reference.com (last visited October 15, 2009).

Combining this root and prefix, therefore, gives us a word meaning “to fabricate or

construct beforehand,” “to manufacture in standardized parts or sections ready for quick
                                                3
assembly and erection . . .,” id., or to “fabricate the parts of [as a house] at a factory so that

construction consists mainly of assembling and uniting standardized parts.” MERRIAM -

WEBSTER ’S COLLEGIATE DICTIONARY 978 (11th ed. 2003). While those definitions do not

mirror each other, they have one aspect in common. Each connotes something that is

already or previously made (whether made as a whole or in parts for later assembly) as

opposed to something that is erected from scratch. Moreover, this concept of the word

reflects what Charlotte Patterson, one of the individuals who created the restrictions,

desired at the time it was selected.

           Patterson testified that “one of the main things that [she] wanted to enforce . . . [was]

the fact that there would never be anything moved in on that property; that it would be all

new construction.” In other words, she intended that the “primary dwellings” be newly built.

Her intent was also enforced through the years, according to the record. Patterson spoke

of other instances wherein those owning or about to buy property in the subdivision

solicited permission to move a previously built house onto their respective lot. In each

instance, Patterson denied the request. Indeed, the Sanchezes themselves were one of

those soliciting such approval. After being told that the homes were to consist of all new

construction, they built one on their lot.

           Patterson also testified that it did not matter whether the “pre-fabricated” house was

new or ready-built. Prospective lot owners wanting to install either were told “no”; instead,

the house had to be “comparable to what was out there, which was a site-built home and,

you know, that we wouldn’t allow anything else.”1




           1
               The only non-site-built house in the Patterson Estates was that of the Letkemans, according to the
witness.
                                                          4
       That the intent espoused by Patterson was implicit in the word “pre-fabricated”

apparently was understood by the Letkemans. That this is true is exemplified by a writing

they signed on April 17, 2008. The document was directed to the “Property Owners” in the

subdivision and was created for the purpose of securing approval to complete the house.

In it, the Letkemans represented that they “reviewed the deed restrictions,” and “realized”

that their conduct “goes against the intention of the dedicators for [sic] the deed restrictions

and property owners (See #16 of the Deed Restrictions attached).” Since their conduct

involved effort to move in and remodel an old house built elsewhere, one can reasonably

view their statement as recognition that their home fell within the scope of “pre-fabricated.”

       Given our obligation to liberally construe restrictive covenants, the common meaning

assigned to the word “pre-fabricated” as evinced by various dictionaries, the intent sought

to be achieved by those drafting covenant #16, the testimony regarding the consistent

application of that intent through the years, and the Letkemans’ own realization that their

efforts went “against” the “dedicators” intent as that intent was memorialized in the

covenant, we interpret “pre-fabricated structures” as including houses that were previously

built as opposed to those erected from scratch. To this, we add that no one disputed that

the Letkemans’ house was made, constructed, manufactured, or built long ago and before

being moved to the Patterson Estates subdivision. Nor did anyone dispute that the

structure was cut in half or into sections for later assembly in the subdivision.

Consequently, we include it within the category of “pre-fabricated” and conclude that the

trial court correctly did so as well.

       Issue Three - Permanent Injunction

       In the last issue we address, the Letkemans posited that the trial court abused its

discretion by enjoining them to move the house from the subdivision. This was purportedly
                                               5
so because their opponents failed to prove a substantial violation of the restrictive

covenants and the equities did not favor such relief. We overrule this contention as well.

         Applicable Law

         Whether to grant a permanent injunction lies within the trial court’s discretion. See

Operation Rescue-Nat'l v. Planned Parenthood of Houston, 975 S.W.2d 546, 560 (Tex.

1998) (describing the standard of review as one of abused discretion). Generally, that

discretion is abused and subject to reversal when the court acted without reference to

guiding rules or principles or misapplied the law to the established facts. Butler v. Arrow

Mirror & Glass, Inc., 51 S.W.3d 787, 791 (Tex. App.–Houston [1st Dist.] 2001, no pet.). So

too may decisions lacking sufficient evidentiary support evince abused discretion. Envoy

Med. Sys. v. State, 108 S.W.3d 333, 335 (Tex. App.–Austin 2003, no pet.).

         Next, injunctive relief ordinarily may issue when the applicant proves the occurrence

of a wrongful act giving rise to imminent and irreparable harm for which there is no

adequate remedy at law. Jim Rutherford Investments, Inc. v. Terramar Beach Community

Ass’n, 25 S.W.3d 845, 849 (Tex. App.–Houston [14th Dist.] 2000, pet. denied). These

elements change somewhat when the dispute concerns the enforcement of restrictive

covenants. Id. There, one need not establish the presence of imminent and irreparable

injury. Id. Nor must he prove the presence of actual damages arising from the breach. It

is enough simply to prove a distinct or substantial breach. Voice of Cornerstone Church

Corp. v. Pizza Property Partners, 160 S.W.3d 657, 667-68 (Tex. App.–Austin 2005, no

pet.).

         Application of Law

         As concluded in the first issue, the Letkemans breached that restrictive covenant

prohibiting them from moving a pre-fabricated structure into the subdivision. Furthermore,
                                               6
the record illustrates that they knew of the restriction and objections raised by their

prospective neighbors before completing the project.2 So too did their efforts continue

despite having this knowledge. And though some evidence appears of record indicating

that the finished structure could actually enhance neighboring property values, it does not

matter that the Reyeses and other home owners may suffer no actual damages.

       That others had sought and been denied permission to do what the Letkemans did

is another indicia to be considered. Moreover, those others apparently heeded the intent

of the dedicators, unlike the Letkemans.                   From the latter circumstance, one could

reasonably deduce that the Letkemans sought more than equity but rather unique

treatment.

       The foregoing leads us to hold that the record contains evidence from which the trial

court could reasonably conclude that the Letkemans substantially violated covenant #16

and that the equities favored curtailing that violation. Simply put, it did not abuse its

discretion by enjoining them to remove the house.

       The judgment of the trial court is affirmed.



                                                            Brian Quinn
                                                            Chief Justice




       2
           W e refer to their neighbors as “prospective” because they had yet to buy the lot from Friesen.
                                                       7
