OPINION
This is an appeal from a suit by appellant to remove deed restrictions. The jury *250 found that there had not been such a change of conditions in the Eastridge Subdivision or area surrounding it as to render the designated area unsuitable for residential purposes to the extent that it is no longer possible to secure in a substantial degree the benefits sought to be realized through these restrictions. The judgment denied Traeger relief and granted appellees a permanent injunction prohibiting commercial use of the land. We reverse and remand.
In his first point of error, Traeger complains that the trial court erred in refusing to submit a separate question concerning the objecting landowner’s waiver of the right to enforce deed restrictions. Traeger maintains that this issue was raised by the evidence and is a separate and distinct issue.
In reply, appellee Lorenz counters that Traeger was not entitled to the submission of this question because the evidence established as a matter of law that the restrictive covenants were still enforceable, that a broad submission of the issues was proper, and that Traeger did not adduce evidence to support submission of a question as to waiver and abandonment.
We hold that the trial court erred in refusing to submit a separate question concerning abandonment and waiver, and remand this cause to the trial court for a determination of that issue.
The Texas Supreme Court in
Cowling v. Colligan,
Lorenz contends that Traeger is not entitled to a question concerning abandonment and waiver as a matter of law because the violations of which he complains existed at the time he purchased the property in the Eastridge Subdivision, the disputed designated area, citing
Lebo v. Johnson,
Appellees are in no condition to complain of the changes that had already taken place in that area when they purchased their lots, or the violations of the restrictions which they have brought about on their own lots, and which are of a temporary nature.
Lebo at 750.
The Lebo case was concerned with the separate theories of change of condition and abandonment and waiver. The Lebo case does not say that a litigant may not complain of violations which occur before his purchase, but rather says that a litigant may not complain of “changes” (i.e., change in the conditions of the restricted area or surrounding it) which occur before his purchase. As to enforcement of restrictions, Lebo merely says that litigants may not complain of violations of restrictions which they have brought about on their own lots. Lebo at 750.
Lorenz also responds that the trial court properly submitted question no. 1 in broad form under TEX.R.CIV.P. 277. Broad submissions of the issues is, indeed, the preferred practice in Texas, and should be used “whenever feasible.” TEX.R. CIV.P. 277. The trial court’s considerable discretion, however, is subject to the requirement that “the issue submitted must fairly submit the disputed issues for the jury’s determination.”
Beaty v. Bales,
Lorenz contends that there was no evidence of abandonment and waiver adduced at trial, and therefore it was not error for the trial court to refuse to submit a separate issue on this ground. We disagree. The record is replete with direct testimony concerning the violations of deed restrictions and the lack of enforcement thereof. This testimony was elicited from several of the Eastridge Subdivision lot owners. Point of error one is therefore sustained.
We have reviewed Traeger’s remaining point of error, and find no reversible error presented. Since we reverse and remand this case pursuant to the resolution of point of error one, however, no further discussion of the final point of error is necessary for disposition of this appeal. TEX.R. APP.P. 90(a).
The judgment of the trial court is reversed, and the cause remanded.