Indian Beach Property Owners' Association, Inc. v. Mary C. Linden

Opinion issued March 22, 2007

Opinion

issued March 22, 2007

In The

Court of Appeals

For The

First District of Texas

NO. 01-05-01116-CV

INDIAN BEACH PROPERTY OWNERS’ ASSOCIATION, Appellant

V.

MARY C. LINDEN AND B.J. LINDEN,

Appellees

On Appeal from the 212th District Court

Galveston County , Texas

Trial Court Cause No. 04CV1020

O P I N I O N

This

is a lawsuit over a chain-link fence. Appellant Indian Beach

Property Owners’ Association (“Indian”) appeals a judgment entered in favor of

appellees Mary C. Linden (“Linden”) and B.J. Linden

(“B.J.”). In thirty-five issues, Indian

challenges the trial court’s failure to enter a permanent injunction against

Linden and B.J., the legal and factual sufficiency of the evidence supporting

the jury’s finding that Linden and B.J.’s construction of the chain-link fence

was not a wrongful act, the denial of Indian’s request for attorney’s fees, the

propriety of submitting certain jury questions and their form, the legal and

factual sufficiency of the evidence to support the jury’s findings, the legal

basis for the trial court’s declaratory judgment, and the legal basis for the

trial court’s award of attorney’s fees to Linden and B.J. We conclude that the trial court erred in

entering a declaratory judgment stating that the deed restrictions applicable

to Linden’s property do not prohibit the use of

chain-link fence as a fencing material, and stating that the use of chain-link

fence on Linden’s property is in harmony with

the existing structures in the Indian Beach

subdivision. We therefore modify the

trial court’s judgment and delete paragraphs one and two. We affirm the remainder of the trial court’s

judgment.

Background

Linden owns a lot in the Indian

Beach subdivision on Galveston Island that is subject

to certain covenants and restrictions contained in the deed. B.J. is Linden’s

ex-husband. B.J. has no ownership

interest in the property at issue in this case, but he helps Linden

manage the property and was extensively involved in the sequence of events

leading to this litigation. Indian is

the entity responsible for enforcing deed restrictions in the Indian

Beach

subdivision. Paragraph three of the deed

restrictions on Linden’s

property provides as follows:

3. Architectural

Control and Construction Time . No

Building, fence, wall, pier, swimming pool, play ground equipment, outdoor

cooking or eating facility of permanent nature or other structure of any kind

shall be commenced, erected, or maintained upon any lot in the Subdivision, nor

shall any exterior addition or change or alteration of the exterior be made

until the plans and specifications showing the nature, kind, shape, height,

materials and location of the same shall have been submitted to and approved in

writing by the Architectural Control Committee (herein sometimes called “the

Committee”) composed of three or more representatives from time to time

appointed by Developer. . . . Approval

by the Committee shall be granted or withheld based upon [1] compliance with

the provisions of this instrument, [2] quality of materials, [3] harmony of

external design with the existing and proposed structures, [4] location with

respect to topographical and finished grade elevation, and [5] such other

relevant considerations as the Committee may, in the exercise of its sole

discretion, determine to be of significance in such determination. Each application made for architectural

control approval shall be accompanied by a fee of $150.00 to defray expenses of

the Committee and by plans and specifications of all proposed walls, drives,

curb cuts, structures, septic tanks, drain fields, and other matters relevant

to architectural approval. If the plans

and specifications are approved by the Committee, a Certificate of Compliance

shall be issued authorizing construction of the proposed improvements in

accordance with the plans and specifications so approved. In the event the Committee fails to approve

or disapprove the plans within forty-five (45) days after same have been

submitted to it, approval will be presumed and this paragraph will be deemed to

have been fully complied with.

On

February 25, 2004, Linden submitted a formal

application to the Architectural Control Committee, hoping to obtain the

Committee’s approval to construct a chain-link fence around the perimeter of

her property. Susan Gonzales, an agent

of Indian, called Linden

and B.J. on March 15, 2004, and informed them that the Committee had denied Linden’s

application. B.J. and Linden believed that

the Committee had improperly denied the application because Gonzales referenced

a setback provision in the deed restrictions that was not applicable to Linden’s

property as one of the reasons for the denial.

Gonzales suggested that Linden reapply and express

her contentions to the Committee. Gonzales told B.J. that a letter explaining Linden’s

position would be a sufficient reapplication.

During that discussion, Gonzales emphasized that the Committee had

another forty-five days to act on the new application. B.J. submitted Linden’s

reapplication letter on March 15, 2004 and Gonzales received it the same

day. Indian took no action with regard

to Linden’s

reapplication within the next forty-five days.

On May 5, 2004, Linden

and B.J. sent a letter to Indian advising it that, according to paragraph three

of the deed restrictions, the Architectural Control Committee was presumed to

have approved Linden’s

chain-link fence, and construction of the fence would commence

immediately. Linden

and B.J. completed construction of the fence before the end of May 2004.

Indian

then sued Linden

and B.J., asserting that they had violated the deed restrictions by building

the fence without the approval of the Architectural Control Committee. Indian sought to permanently enjoin Linden and B.J. from

building a chain-link fence on Linden’s

property, and an order mandating that Linden

and B.J. remove the existing fence.

Indian also sought its attorney’s fees.

Linden

and B.J. answered, specifically denying that they had violated the deed

restrictions. Linden and B.J. also counterclaimed,

seeking a declaratory judgment that their construction of the fence was in

compliance with the deed restrictions applicable to Linden’s

property. Linden

and B.J. sought attorney’s fees as well.

At

trial, the issues upon which Linden

and B.J. sought declaratory judgment were expanded to include a determination

of whether the deed restrictions prohibit chain-link as an allowable fence

material, and whether the chain-link fence on Linden’s

property is in harmony with existing structures in the subdivision. The jury returned a verdict in favor of Linden

and B.J., and the trial court entered a judgment on the verdict. Indian appeals.

Permanent Injunction

In its first, second, and third

issues, Indian contends (1) the trial court abused its discretion in failing to

grant a permanent injunction in favor of Indian mandating that Linden remove

her chain-link fence, (2) the trial court erred in ordering that Indian take

nothing, and (3) the trial court erred in finding that the equities in favor of

Indian did not outweigh the equities in favor of Linden, and that equitable

relief in favor of Indian was not expedient, necessary, or proper.

Injunctive relief is appropriate upon a showing

of the following elements: (1) the existence of a wrongful act, (2) the

existence of imminent harm, (3) the existence of irreparable injury, and (4)

the absence of an adequate remedy at law.

Jim Rutherford Invs., Inc. v. Terramar

Beach

Cmty. Ass’n , 25 S.W.3d 845,

849 (Tex. App.—Houston

[14th Dist.] 2000, pet. denied). “ Because an injunction is

an equitable remedy, a trial court weighs the respective conveniences and

hardships of the parties and balances the equities.” Computek Computer & Office Supplies, Inc.

v. Walton , 156 S.W.3d 217, 220 (Tex. App.—Dallas 2005, no pet.); Triantaphyllis v. Gamble , 93 S.W.3d 398 , 401–02

(Tex. App.—Houston

[14th Dist.] 2002, pet. denied); see also State v. Tex.

Pet Foods, Inc. , 591 S.W.2d

800, 803 (Tex.

1979) (“The jury does not determine the expediency, necessity, or propriety of

equitable relief. . . . The

determination of whether to grant an injunction based upon the ultimate issues

of fact found by the jury is for the trial court, exercising chancery powers,

and not the jury.”). A party must substantially violate a deed

restriction before the trial court may issue a permanent injunction. See Tien Tao Ass’n v. Kingsbridge

Park

Cmty. Ass’n, Inc. , 953 S.W.2d 525 , 529–30 (Tex. App.—Houston [1st

Dist.] 1997, no pet.) .

We review a trial court’s ruling on applications

for permanent injunctions for an abuse of discretion. Operation Rescue-Nat’l v. Planned

Parenthood of Houston & Se. Tex., Inc. , 975 S.W.2d 546, 560 (Tex.

1998) . An abuse of discretion occurs if the trial

court (1) acts arbitrarily and unreasonably, without reference to guiding rules

or principles, or (2) misapplies the law to the established facts of the

case. Butler v. Arrow Mirror & Glass,

Inc. , 51 S.W.3d 787,

791 (Tex. App.—Houston

[1st Dist.] 2001, no pet.). “ The trial court does not

abuse its discretion when its decision is based on conflicting evidence and

some evidence in the record reasonably supports the trial court’s decision.” Triantaphyllis , 93

S.W.3d at 402 ; see also Davis v. Huey , 571 S.W.2d 859, 862 (Tex.

1978) . A clear abuse of

discretion arises only when the trial court’s decision is not supported by some

evidence of substantial and probative character. Envoy Med. Sys., L.L.C. v. State , 108 S.W.3d 333, 335 (Tex.

App.—Austin 2003, no pet.) .

A

party seeking an injunction has the burden of showing that a clear equity

demands the injunction. Christensen

v. Integrity Ins. Co. , 719

S.W.2d 161, 163 (Tex.

1986); Bridas Corp. v. Unocal Corp . , 16

S.W.3d 887, 890 ( Tex. App.—Houston

[14th Dist.] 2000, pet. dism’d w.o.j.). A party seeking enforcement of a deed

restriction always has the burden at trial to demonstrate the enforceability of

the restriction. City of Pasadena

v. Gennedy , 125

S.W.3d 687, 695 (Tex. App.—Houston [1st Dist.] 2003, pet.

denied).

In this case, the trial court did not

abuse its discretion in refusing to grant a permanent injunction in favor of

Indian. The jury found that Linden

and B.J.’s construction of the fence was not a wrongful act. Indian therefore failed to establish the

first element of its claim for injunctive relief. See Jordan v.

Landry’s Seafood Rest., Inc. , 89 S.W.3d 737 , 742–43 (Tex. App.—Houston

[1st Dist.] 2002, pet. denied) (holding plaintiff failed to show existence of wrongful

act); Pinebrook Props., Ltd. v. Brookhaven

Lake

Prop.

Owners Ass’n , 77 S.W.3d 487, 505 (Tex. App.—Texarkana 2002, pet. denied)

(holding trial court abused its discretion in entering injunction because there

was no evidence of existence of wrongful act) . In

addition, the balance of the equities weighs against the imposition of an

injunction in this case because the evidence at trial demonstrated that Indian

did not take any action with regard to Linden’s

reapplication within the forty-five days prescribed by the deed

restrictions. See Walton ,

156 S.W.3d at 220 ; Triantaphyllis , 93 S.W.3d at 401–02;

Jim Rutherford , 25 S.W.3d

at 850 . Linden

complied with the deed restrictions and the application process throughout all

stages of this case. According to the

deed restrictions, if the Architectural Control Committee

fails to approve or disapprove of an application within forty-five days after

it is submitted, approval will be presumed.

The trial court did not abuse its discretion in declining to award

injunctive relief because the record supports an implied finding that Indian’s

own inaction resulted in the presumed approval of Linden and B.J.’s fence; thus, Indian fails

to show that the balance of the equities plainly favors it. See Jim Rutherford , 25 S.W.3d at 850 (holding balance of equities

favored imposition of injunction); Universal Health Servs., Inc. v. Thompson , 24 S.W.3d 570, 579

( Tex.

App.—Austin 2000, no pet.) (holding balance of equities favored imposition

of injunction) . We overrule Indian’s first, second,

and third issues.

Wrongful Act

In its fourth and sixth issues,

Indian contends (4) the evidence is legally insufficient to support the jury’s

finding that Linden

and B.J.’s construction of the fence was not a wrongful act, and (6) Indian

conclusively established that Linden and B.J.’s

construction of the fence was a wrongful act.

In a legal sufficiency

challenge by a party with the burden of proof at trial, we first examine the

record for evidence that supports the finding, while ignoring all evidence to the

contrary. Sterner v. Marathon Oil Co. ,

767 S.W.2d 686, 690 (Tex. 1989) . If there is no evidence to support the

finding, we then examine the entire record to determine if the contrary

proposition is established as a matter of law. Id. Only if the contrary proposition is

established as a matter of law will we sustain the issue. Id.

The evidence is legally sufficient to support

the jury’s finding that Linden and B.J.’s

construction of the fence was not a wrongful act. B.J. testified that Gonzales told him that Linden

could resubmit her application to build a chain-link fence by sending a letter

to the Architectural Control Committee.

Gonzales also stated that the Committee would have another forty-five

days to grant or deny the application.

B.J. faxed Linden’s reapplication

letter to Gonzales and the Architectural Control Committee on March 15,

2004. The Committee took no action on the

letter within the next forty-five days. Paragraph

three of the deed restrictions provides that, “ [i]n the event the

Committee fails to approve or disapprove the plans within forty-five (45) days

after same have been submitted to it, approval will be presumed and this

paragraph will be deemed to have been fully complied with.” This evidence supports the jury’s finding

that Linden

and B.J.’s construction of the fence was not a wrongful act. Indian has therefore failed to

establish that Linden and B.J.’s

construction of the fence was a wrongful act as a matter of law. See

Sterner , 767 S.W.2d at 690 ; Gennedy , 125 S.W.3d at 697 (holding that evidence was sufficient to

conclusively establish that deed restriction was applicable); Jim Rutherford , 25 S.W.3d at 849–50

(holding that plaintiff conclusively proved existence of deed

restriction and defendant’s violation of restriction) . We

overrule Indian’s fourth and sixth issues.

Substantive Law

In

its fifth issue, Indian contends that the jury’s finding on question one of the

jury charge conclusively established that Linden

and B.J. had violated the substantive law, entitling Indian to an

injunction. See Jim Rutherford , 25 S.W.3d at 848 (“ However,

where the facts conclusively show that a party is violating the substantive

law, the trial court should enjoin the violation, and in such case, there is no

discretion to be exercised. ”); see

also City of Keller v. Wilson , 168 S.W.3d 802, 823 (Tex. 2005) (“ Judgment

without or against a jury verdict is proper at any course of the proceedings

only when the law does not allow reasonable jurors to decide otherwise.”). In question one, the jury found

that Linden

and B.J. had constructed the fence without the written approval of the

Architectural Control Committee.

The deed restrictions expressly state

that, “ [i]n the event the Committee fails to approve or

disapprove the plans within forty-five (45) days after same have been submitted

to it, approval will be presumed and this paragraph will be deemed to have been

fully complied with.” This provision explains

the jury’s answer to question two, in which the jury found that Linden

and B.J. did not wrongfully construct the fence. As discussed above, the evidence is legally

sufficient to support a finding that the written approval of the Committee was

unnecessary under the facts of this case because Linden

resubmitted her application for the construction of the chain-link fence when

B.J. faxed Gonzales the March 15 letter.

The Committee then took no action with regard to the reapplication

letter within the forty-five day period prescribed by the deed

restrictions. Linden

and B.J. therefore did not violate the deed restrictions or any other

substantive law when they built the fence without the written approval of the

Architectural Control Committee. We

overrule Indian’s fifth issue.

Legal and Factual Sufficiency

In

its twenty-second, twenty-third, and twenty-eighth issues, Indian challenges

the legal and factual sufficiency of the evidence supporting the jury’s finding

in question five that Linden

and B.J. did not violate the applicable deed restrictions in constructing the

fence on Linden’s

property.

The test for legal

sufficiency is “whether the evidence at trial would

enable reasonable and fair-minded people to reach the verdict under

review.” City of Keller ,

168 S.W.3d at 827 . In making this

determination, we credit favorable evidence if a reasonable fact-finder could,

and disregard contrary evidence unless a reasonable fact-finder could not. Id. So long as the evidence falls within the zone

of reasonable disagreement, we may not substitute our judgment for that of the

fact-finder. Id.

at 822 . The trier of fact is the sole

judge of the credibility of the witnesses and the weight to give their testimony. Id. at 819 . Although we consider the evidence in the

light most favorable to the challenged findings, indulging every reasonable

inference that supports them, we may not disregard evidence that allows only

one inference. Id.

at 822 .

In reviewing a factual sufficiency point, we

consider all the evidence supporting and contradicting the finding. Plas-Tex, Inc. v. U.S. Steel Corp. , 772 S.W.2d 442, 445 (Tex. 1989); HTS Servs., Inc. v. Hallwood Realty Partners, L.P . , 190 S.W.3d 108, 111 ( Tex. App.—Houston [1st Dist.] 2005, no pet.). We set aside the verdict only if the finding

is so contrary to the overwhelming weight of the evidence as to be clearly

wrong and unjust. Cain v. Bain , 709 S.W.2d 175, 176 (Tex. 1986). Jurors are the sole judges of the credibility

of the witnesses and the weight to give their testimony. City of

Keller , 168

S.W.3d at 819 . They may choose to

believe one witness and disbelieve another.

Id.

Paragraph three of the deed restrictions

begins by stating:

No Building, fence, wall, pier, swimming pool, play

ground equipment, outdoor cooking or eating facility of permanent nature or

other structure of any kind shall be commenced, erected, or maintained upon any

lot in the Subdivision, nor shall any exterior addition or change or alteration

of the exterior be made until the plans and specifications showing the nature,

kind, shape, height, materials and location of the same shall have been

submitted to and approved in writing by the Architectural Control Committee . .

. .

In February 2004, Linden

submitted her formal application to the Architectural Control Committee to

obtain the Committee’s approval to construct a chain-link fence. Gonzales called Linden and B.J. on March 15, 2004, and

informed them that the Committee had denied Linden’s

application. B.J. and Linden believed that the Committee had

improperly denied the application because Gonzales referenced a setback

provision in the deed restrictions that was not applicable to Linden’s

property as one of the reasons for the denial.

B.J. testified that Gonzales told him that Linden

could resubmit her application to build a chain-link fence by sending a letter

to the Architectural Control Committee.

B.J. also testified that Gonzales stated that the Committee would have

another forty-five days to grant or deny the application. B.J. faxed Linden’s

reapplication letter to Gonzales and the Architectural Control Committee on

March 15, 2004. Gonzales testified that

the letter did not constitute a reapplication and it was not regarded as such

by herself or the Committee. The

Committee took no action with regard to the letter within the next forty-five

days. Paragraph three of the deed

restrictions provides that, “ [i]n the event the Committee fails

to approve or disapprove the plans within forty-five (45) days after same have

been submitted to it, approval will be presumed and this paragraph will be

deemed to have been fully complied with.”

We hold that this evidence “would enable

reasonable and fair-minded people to reach the verdict under review.” City of

Keller , 168

S.W.3d at 827 . The evidence is therefore legally

sufficient to support the jury’s finding that Linden

and B.J.’s construction of the fence did not violate any applicable deed

restrictions on Linden’s property. See Gennedy , 125 S.W.3d at 700 (holding evidence was legally insufficient to

support finding that deed restrictions had been amended); Jim Rutherford , 25 S.W.3d at 849–50

(holding plaintiff conclusively proved existence of deed

restriction and defendant’s violation of restriction) .

Considering all the evidence supporting and

contradicting the finding, we cannot say the jury’s finding is so contrary to

the overwhelming weight of the evidence as to be clearly wrong and unjust. See

Cain , 709 S.W.2d at 176 . We therefore hold that t he evidence is factually sufficient

to support the jury’s finding that Linden

and B.J.’s construction of the fence did not violate any applicable deed

restrictions on Linden’s property. See

Tien Tao , 953 S.W.2d at 529–31 (holding evidence was factually sufficient

to support finding that defendant violated deed restrictions); Guajardo v. Neece , 758 S.W.2d 696 ,

698–99 (Tex. App.—Fort Worth 1988, no writ) (holding evidence was sufficient to

support finding that defendant violated deed restrictions) . We overrule Indian’s twenty-second,

twenty-third, and twenty-eighth issues.

Factual Sufficiency

In its seventh issue, Indian contends the

evidence is factually insufficient to support the jury’s finding that Linden and B.J.’s construction of the fence was not

a wrongful act.

Paragraph three of the deed

restrictions begins by stating:

No Building, fence, wall, pier, swimming pool, play

ground equipment, outdoor cooking or eating facility of permanent nature or

other structure of any kind shall be commenced, erected, or maintained upon any

lot in the Subdivision, nor shall any exterior addition or change or alteration

of the exterior be made until the plans and specifications showing the nature,

kind, shape, height, materials and location of the same shall have been

submitted to and approved in writing by the Architectural Control Committee . .

. .

In February 2004, Linden submitted her formal application to the

Architectural Control Committee to obtain the Committee’s approval to construct

a chain-link fence. Gonzales called Linden and B.J. on March 15, 2004, and informed them

that the Committee had denied Linden’s

application. B.J. and Linden believed that the Committee had improperly

denied the application because Gonzales referenced a setback provision in the

deed restrictions that was not applicable to Linden’s

property as one of the reasons for the denial.

B.J. testified that Gonzales told him that Linden

could resubmit her application to build a chain-link fence by sending a letter

to the Architectural Control Committee.

B.J. also testified that Gonzales stated that the Committee would have

another forty-five days to grant or deny the application. B.J. faxed Linden’s

reapplication letter to Gonzales and the Architectural Control Committee on

March 15, 2004. Gonzales testified that

the letter did not constitute a reapplication and it was not regarded as such

by herself or the Committee. The

Committee took no action with regard to the letter within the next forty-five

days. Paragraph three of the deed

restrictions provides that, “ [i]n the event the Committee fails

to approve or disapprove the plans within forty-five (45) days after same have

been submitted to it, approval will be presumed and this paragraph will be

deemed to have been fully complied with.”

Considering all the evidence supporting and

contradicting the finding, we hold that t he evidence is factually sufficient to support the

jury’s finding that Linden and

B.J.’s construction of the fence was not a wrongful act. See

Tien Tao , 953 S.W.2d at 529–31 (holding evidence was factually sufficient

to support finding that defendant violated deed restrictions); Guajardo , 758 S.W.2d at 698–99

(holding evidence was sufficient to support finding that defendant violated deed

restrictions) . We overrule

Indian’s seventh issue.

Conflict in Jury Answers

In its eighth issue, Indian contends

the jury’s findings on questions one and two are in conflict. In question one, the jury found that Linden and B.J. constructed the fence without the

written approval of the Architectural Control Committee. In question two, the jury found that Linden and B.J. did not wrongfully construct the

fence.

When determining whether jury findings

irreconcilably conflict, we apply a de novo standard of review. See

Bender v. S. Pac. Transp. Co. , 600 S.W.2d 257, 260 (Tex.

1980). In

reviewing the jury findings for conflict, the threshold question is whether the

findings address the same material fact.

Id. The court may not strike down jury answers on the ground of

conflict if there is any reasonable basis upon which they can be

reconciled. Id. The court must

reconcile apparent conflicts in the jury’s findings, if reasonably possible, in

light of the pleadings and evidence, the manner of submission, and the other findings considered as a whole. Id. The court does not determine whether the

findings may reasonably be viewed as conflicting; to the contrary, the question

is whether there is any reasonable basis upon which the findings may be

reconciled. Id.

If, however, “one of the answers would

require a judgment in favor of the plaintiff and the other would require a

judgment in favor of the defendant, then the answers are fatally in

conflict.” Little Rock Furniture Mfg.

Co. v. Dunn , 148 Tex. 197, 206 , 222 S.W.2d 985, 991 (1949). If we determine that a fatal conflict exists,

we must remand to the trial court for a new trial. See Cotton Belt R.R. v. Hendricks , 768 S.W.2d 865, 870 (Tex. App.—Texarkana

1989, no writ) ( citing Ins. Co. of

N. Am. v. Brown , 394 S.W.2d 787, 789 (Tex.

1965) ).

Here, the jury findings in questions

one and two do not address the same material facts. Indian presumes the only way Linden and B.J. could have complied with the deed

restrictions in constructing the fence was to receive written approval from the

Architectural Control Committee. The

deed restrictions, however, allow for the presumed approval of the

Architectural Control Committee without an express written approval. We hold that because

jury questions one and two addressed different material facts, there is no

conflict in the answers. See

Jabri v. Alsayyed , 145 S.W.3d 660, 668 (Tex.

App.—Houston [14th Dist.] 2004, no

pet.) (holding jury findings did not address same material fact); Crescendo

Invs., Inc. v. Brice , 61 S.W.3d 465, 477 (Tex. App.—San Antonio

2001, pet. denied) (same); Newsom v. Whittington , 953 S.W.2d

410, 416 (Tex. App.—Texarkana 1997, pet. denied) (same); Mercedes-Benz of N. Am., Inc.

v. Dickenson , 720 S.W.2d 844 , 856–57 (Tex. App.—Fort Worth 1986, no

writ) (same). Accordingly, we overrule

Indian’s eighth issue.

In its twenty-fourth issue, Indian

contends the jury’s findings in questions one and five are in conflict. In question one, the jury found that Linden and B.J. constructed the fence without the

written approval of the Architectural Control Committee. In question five, the jury found that Linden and B.J. did not violate the deed

restrictions applicable to Linden’s

property when they constructed the fence.

The jury findings in questions one

and five do not address the same material facts. Again, we note that the forty-five day default

provision of the deed restrictions allows for the presumed approval of the

Architectural Control Committee.

Therefore, the question one finding that Linden

and B.J. constructed the fence without the written approval of the

Architectural Control Committee addresses a different material fact than the

question five finding that Linden and

B.J. did not violate the applicable deed restrictions in constructing the

fence. We hold

that because jury questions one and five addressed different material facts,

there is no conflict in the answers. See Jabri ,

145 S.W.3d at 668 ; Brice , 61 S.W.3d at 477 ; Newsom ,

953 S.W.2d at 416 ; Dickenson , 720 S.W.2d at 856–57. Accordingly, we overrule Indian’s

twenty-fourth issue.

Forty-Five Day Default Provision

In its ninth, tenth, and

eleventh issues, Indian contends (9) the trial court erred in making the

implied finding that Linden’s March 15 letter was a reapplication for approval

of a chain-link fence, (10) the trial court erred in making the implied finding

that a second forty-five day default period commenced as a result of Linden’s

March 15 letter, and (11) the trial court erred in making the implied finding

that Indian’s failure to deny Linden’s reapplication within the second

forty-five day default period constituted an approval.

At trial, Indian had the

burden to show that it was entitled to an injunction because Linden and B.J.’s construction of the fence was a

wrongful act. As we determined above,

however, the evidence is legally and factually sufficient to support the jury’s

finding that Linden and B.J.’s

construction of the fence was not a wrongful act. In making this determination, the jury

necessarily found that Linden’s

March 15 letter constituted a reapplication for approval of a chain-link fence,

a second forty-five day period commenced as a result of the March 15 letter,

and Indian’s failure to deny Linden’s

reapplication within the forty-five day period constituted an approval. The trial court therefore did not err with

respect to any implied or “deemed” findings on these issues. See

Tex. R. Civ. P. 279 (elements

omitted from jury charge are deemed found by trial court in support of judgment

when supported by evidence); see also

Don’s

Ambulance Serv., Inc. v. City of San Antonio , 526 S.W.2d 547, 551

(Tex. Civ. App.—San Antonio 1975, writ ref’d n.r.e.) (holding there can be no

deemed finding by trial court if jury has already made finding on issue). Accordingly, we overrule Indian’s ninth,

tenth, and eleventh issues.

Indian’s Attorney’s Fees

In

its twelfth issue, Indian contends the trial court erred in failing to award it

attorney’s fees. Section 5.006(a) of the

Texas Property Code states, “ [i]n 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.”

Tex. Prop. Code Ann . §

5.006(a) (Vernon 2004). A prevailing

party

is the party to a suit that either successfully prosecutes the action or

defends against it, prevailing on the main issue. Jakab v. Gran Villa Townhouses

Homeowners Ass’n, Inc. , 149 S.W.3d 863, 867 (Tex. App.—Dallas 2004,

no pet.); FDIC

v. Graham , 882 S.W.2d 890, 900 (Tex. App.—Houston [14th Dist.] 1994, no writ). “Simply stated, the prevailing

party is the party vindicated by the judgment

rendered.” Jakab , 149

S.W.3d at 867 ; Dear

v. City of Irving , 902 S.W.2d 731, 739

(Tex. App.—Austin 1995, writ denied) .

The trial court properly

denied Indian’s request for attorney’s fees because Indian was not the

prevailing party in this case. Indian is

therefore not entitled to attorney’s fees under section 5.006(a). See Anderson v. New Prop. Owners’

Ass’n of Newport, Inc. , 122 S.W.3d 378, 390 (Tex. App.—Texarkana

2003, pet. denied) ; Pebble Beach Prop. Owners’ Ass’n v. Sherer ,

2 S.W.3d 283 , 291–92 (Tex. App.—San Antonio 1999, pet. denied); Meyerland Cmty. Improvement Ass’n v. Belilove , 624 S.W.2d 620 , 620–21

(Tex. App.—Houston [14th Dist.] 1981, writ ref’d n.r.e.). We overrule Indian’s twelfth issue.

Jurisdiction

In its thirtieth issue, Indian

contends, “the trial court abused its discretion in granting a declaratory

judgment because it lacked the required jurisdiction, since all other owners in

Indian Beach Section 1 were not joined as necessary parties.”

The Declaratory Judgments Act states:

A person interested under a deed, will, written contract, or other

writings constituting a contract or whose rights, status, or other legal

relations are affected by a statute, municipal ordinance, contract, or

franchise may have determined any question of construction or validity arising

under the instrument, statute, ordinance, contract, or franchise and obtain a

declaration of rights, status, or other legal relations thereunder.

Tex. Civ. Prac. & Rem. Code Ann. § 37.004(a) (Vernon

1997). “When declaratory relief is

sought, all persons who have or claim any interest that would be affected by

the declaration must be made parties. A

declaration does not prejudice the rights of a person not a party to the

proceeding.” Id. § 37.006(a) (Vernon 1997).

The general rule is that “some of the owners of property in a restricted

subdivision may not release or modify applicable deed restrictions without the

concurrence of others who own property in the subdivision.” Smith v. Williams , 422 S.W.2d 168, 172 (Tex. 1967) ; April Sound

Mgmt. Corp. v. Concerned Prop. Owners for April

Sound, Inc. , 153 S.W.3d

519, 525 (Tex. App.—Amarillo 2004,

no pet.).

Texas Rule of Civil

Procedure 39 governs joinder of persons under the Declaratory

Judgments Act, and like the Declaratory Judgments Act, “mandates joinder of

persons whose interests would be affected by the judgment.” Brooks

v. Northglen Ass’n , 141 S.W.3d 158, 162 (Tex.

2004); see also Tex. R. Civ. P . 39; Tex. Civ. Prac. & Rem. Code Ann. §

37.006. “Rule 39 determines whether a

trial court has authority to proceed without joining a person whose presence in

the litigation is made mandatory by the Declaratory Judgment[s] Act.” Brooks , 141 S.W.3d at 162 . Rule

39(a) provides:

A person who is subject to service of

process shall be joined as a party in the action if (1) in his absence complete

relief cannot be accorded among those already parties, or (2) he claims an

interest relating to the subject of the action and is so situated that the

disposition of the action in his absence may (i) as a practical matter impair

or impede his ability to protect that interest or (ii) leave any of the persons

already parties subject to a substantial risk of incurring double, multiple, or

otherwise inconsistent obligations by reason of his claimed interest. If he has not been so joined, the court shall

order that he be made a party. If he

should join as a plaintiff but refuses to do so, he may be made a defendant,

or, in a proper case, an involuntary plaintiff.

Tex. R. Civ. P . 39(a).

In Wilchester West Concerned Homeowners LDEF, Inc. v. Wilchester West

Fund, Inc. , this court held that the failure to join all property owners

affected by a restrictive covenant in a declaratory judgment action did not

deprive the trial court of jurisdiction to enter the declaratory judgment. 177 S.W.3d 552 , 559–60 (Tex.

App.—Houston [1st Dist.] 2005, pet.

denied). We based our holding on Brooks v. Northglen Association and Simpson v. Afton Oaks Civic Club, Inc. ,

two similar cases decided by the Texas Supreme Court in 2004. Id. ; see also Simpson v. Afton Oaks Civic Club, Inc. , 145 S.W.3d 169, 170 (Tex. 2004); Brooks , 141 S.W.3d at 162–63. In

Wilchester , we reasoned that while

Rule 39(a)(1) requires the presence of all persons who have an interest in the litigation so that any

relief awarded will effectively and completely adjudicate the dispute,

nothing prevented the trial court from rendering complete relief between the

parties to the suit. 177 S.W.3d at

559–60. We also noted that a declaratory judgment

does not prejudice the rights of any person that is not a party to the

proceeding, and any non-joined homeowner would be able to pursue individual

claims challenging the associations’ authority to take the disputed actions, notwithstanding

a ruling in the case. Id. at

560; see also Tex. Civ. Prac.

& Rem. Code Ann . § 37.006(a) (“ A declaration does not

prejudice the rights of a person not a party to the proceeding.” ). We recognized that the club and the

homeowners’ associations might be subject to the possibility of inconsistent

judgments since not all of the homeowners in the subdivision were joined in the

lawsuit. Wilchester , 177 S.W.3d at 560 . As in Brooks v. Northglen Association ,

however, the homeowners’ associations could have sought relief at trial by urging the court, among other things,

to abate the case, join absent homeowners, or grant special exceptions. Id. We ultimately held that the

failure to join all property owners affected by the restrictive covenant did

not deprive the trial court of jurisdiction to enter the declaratory judgment. Id.

In accordance with Wilchester , we hold that the failure to

join the other property owners affected by the restrictive covenants in this

lawsuit did not deprive the trial court of jurisdiction to enter the

declaratory judgment. See Cooper v. Tex. Gulf Indus., Inc. , 513 S.W.2d 200, 204 (Tex. 1974) (stating that “it would be rare indeed if

there were a person whose presence was so indispensable in the sense that his

absence deprives the court of jurisdiction”).

Here, nothing prevented the trial court from rendering complete relief

between Linden, B.J., and Indian, and because a declaratory judgment does not

prejudice the rights of any person not a party to the proceeding, any non-joined homeowner

will be able to pursue individual claims notwithstanding the ruling in this

case. See Tex. Civ. Prac. & Rem. Code Ann . § 37.006(a); Tex. R. Civ. P . 39(a)(1). In addition, just as in Brooks and Wilchester ,

the possibility that Indian might be subject to inconsistent judgments was

caused by its own inaction in failing to urge the trial court to abate the case, join

absent homeowners, or grant special exceptions.

See Brooks , 141 S.W.3d at 163 ; Wilchester , 177 S.W.3d at 560 . We hold that the trial court had jurisdiction

to enter the declaratory judgment in this case and we overrule Indian’s

thirtieth issue.

Declaratory Judgment

Factual Disputes

In its twenty-ninth issue, Indian contends the

trial court “abused its discretion in granting a declaratory judgment because

there is no proper legal basis for it.”

Under the Declaratory

Judgments Act, “[a] court of record within its jurisdiction has power to

declare rights, status, and other legal relations whether or not further relief

is or could be claimed.” Tex. Civ. Prac. & Rem. Code Ann.

§ 37.003(a) (Vernon 1997). The purpose of the Declaratory Judgments Act is

to settle and to afford relief from uncertainty and insecurity with respect to

rights, status, and other legal relations; and the Act is to be liberally

construed and administered. Id. §

37.002(b) (Vernon 1997).

A person interested under a deed, will,

written contract, or other writings constituting a contract or whose rights,

status, or other legal relations are affected by a statute, municipal

ordinance, contract, or franchise may have determined any question of

construction or validity arising under the instrument, statute, ordinance,

contract, or franchise and obtain a declaration of rights, status, or other

legal relations thereunder.

Id. § 37.004(a) (Vernon 1997).

“If a proceeding under [the Declaratory Judgments Act] involves the

determination of an issue of fact, the issue may be tried and determined in the

same manner as issues of fact are tried and determined in other civil actions

in the court in which the proceeding is pending.” Id. § 37.007 (Vernon 1997).

The power to determine an issue of fact, however, “does not

concomitantly carry with it the power to render such a finding of fact as a

declaratory judgment.” Hill

v. Heritage Res., Inc. , 964 S.W.2d 89, 140 (Tex. App.—El Paso 1997,

pet. denied). If a factual dispute is

the only issue to be resolved, a declaratory judgment is not the proper

remedy. Querencia Props. v. New Querencia

Capital Partners, L.L.C. , No.

05-05-01029-CV, 2006 WL 2423589, at *4 (Tex. App.—Dallas Aug. 23, 2006, no pet.) ; Hill , 964 S.W.2d at 140 ; Emmco

Ins. Co. v. Burrows , 419 S.W.2d 665, 671 (Tex. Civ. App.—Tyler 1967,

no writ).

The jury charge in this case asked three

questions pertaining to the trial court’s declaratory judgment. Question four asked whether “the deed

restrictions applicable to [Linden’s]

lot contained a restriction concerning the use of chain link fencing as a fence

material.” The jury answered this

question negatively. Question five asked

whether Linden and B.J. violated the

applicable deed restrictions in constructing the fence on Linden’s property.

The jury also answered this question negatively. Question six asked whether the use of

chain-link fencing by Linden and

B.J. was in harmony with the existing structures in the subdivision. At trial, Linden

and B.J. had produced evidence of other chain-link fences in the Indian Beach subdivision. The jury answered this question

positively. The trial court then

incorporated these factual findings into its judgment, which provides:

(1) the deed restrictions applicable to Lot 74, Block

3, Section 1 of Indian Beach, a subdivision in Galveston, Galveston County,

Texas, filed of record in the deed of Trust records of the Public Records of

Real Property of the County Clerk of Galveston County, Texas, at Book 3406,

Page 838, do not prohibit the use of chain link as a fence material in the

subdivision;

(2) the use of chain link fence on Lot 74, Block 3,

Section 1 of Indian Beach, a subdivision in Galveston, Galveston County, Texas,

filed of record in the deed of Trust records of the Public Records of Real

Property of the County Clerk of Galveston County, Texas, at Book 3406, Page

838, is in harmony with existing structures in the subdivision;

[The trial court deleted paragraph 3]

(4) Defendants, MARY C. LINDEN and B.J. LINDEN, are in

compliance with the deed restrictions applicable to Lot 74, Block 3, Section 1

of Indian Beach, a subdivision in Galveston, Galveston County, Texas, filed of

record in the Deed of Trust records of the Public Records of Real Property of

the County Clerk of Galveston County, Texas, at Book 3406, Page 838, concerning

their construction of a chain link fence on said lot.

We hold that whether the deed restrictions

applicable to Linden’s property prohibit

the use of chain-link fence as a fencing material, and whether chain-link fence

is in harmony with the existing structures in the Indian Beach

subdivision, are both purely factual disputes that the trial court should not

have resolved with a declaratory judgment.

See Hill , 964 S.W.2d at 140 (holding that whether

party breached contract was purely factual dispute and declaratory judgment was

not proper); Emmco , 419 S.W.2d at 671 (holding that whether defendants

acted in consort so as to suspend interest payments was purely factual dispute

and declaratory judgment was not proper); Lincoln

v. Harvey ,

191 S.W.2d 764, 766 (Tex. Civ. App.—Dallas 1945, no writ) (holding that whether

rental contracts were on month-to-month basis or for duration of war was purely

factual dispute and declaratory judgment was not proper). The trial court’s declaratory judgment simply

repeats the factual findings of the jury and does not “ declare

rights, status, [or] other legal relations ,” as required by the Declaratory Judgments

Act. See

Tex. Civ. Prac. & Rem.

Code Ann. § 37.003(a). A declaratory judgment was therefore an

improper remedy with regard to these two factual disputes, and we sustain this

portion of Indian’s twenty-ninth issue.

We modify the trial court’s judgment by deleting paragraphs one and two. Accordingly, we need not address Indian’s

thirteenth, fourteenth, fifteenth, seventeenth, eighteenth, nineteenth,

twenty-fifth, and twenty-sixth issues as they also challenge paragraphs one and

two of the trial court’s judgment and the jury findings supporting these

paragraphs.

In contrast, we hold that

the trial court’s declaratory judgment that Linden

and B.J.’s construction of the fence was in compliance with the deed restrictions applicable to Linden’s property is not purely a factual dispute. The judgment declares Linden

and B.J.’s “status” with regard to the fence and the deed restrictions on Linden’s property.

See Tex. Civ. Prac. & Rem. Code

Ann.

§ 37.003(a). A declaratory judgment was therefore a proper

remedy to resolve this dispute. S ee Querencia , 2006 WL 2423589, at *4 (holding that

whether party was entitled to return of its earnest money under contract was

not purely factual dispute and declaratory judgment was proper) ; In re A.C.B. , 103 S.W.3d 570 ,

574–75 (Tex. App.—San Antonio 2003, no pet.) (holding that whether party was in

arrears on child support obligation was not purely factual dispute and

declaratory judgment was proper); Hext v. Price , 847 S.W.2d 408, 416

(Tex. App.—Amarillo 1993, no writ) (holding that controversy concerning rights

under instruments underlying litigation was not purely factual dispute and

declaratory judgment was proper); Chapman v. Marathon Mfg. Co. , 590

S.W.2d 549, 552 (Tex. Civ. App.—Houston [1st Dist.] 1979, no writ) (holding

that whether party was justified in terminating contract was not purely factual

dispute and declaratory judgment was proper). We overrule this portion of Indian’s

twenty-ninth issue.

Declaratory Judgment

With regard to its

twenty-ninth issue, Indian further contends that the trial court abused its

discretion in entering a declaratory judgment that Linden

and B.J.’s construction of the fence was in compliance with the deed restrictions applicable

to Linden’s property because whether

Linden and B.J. complied with the

deed restrictions was decided in Indian’s claim for injunctive relief.

“The plaintiff’s right to take a nonsuit is unqualified

and absolute as long as the defendant has not made a claim for affirmative

relief.” BHP Petroleum Co. v. Millard , 800 S.W.2d 838, 840 (Tex. 1990); see

also Tex. R. Civ. P . 162. The assertion of a counterclaim in the form of

a declaratory

judgment does not relieve a party of its burden to comply with the requirement

that it assert a claim for affirmative relief.

Id.

at 841 n.8. “‘To qualify as a claim for

affirmative relief, a defensive pleading must allege that the defendant has a

cause of action, independent of the plaintiff’s claim, on which he could

recover benefits, compensation or relief, even though the plaintiff may abandon

his cause of action or fail to establish it.’”

Gen.

Land Office v. Oxy U.S.A., Inc. , 789 S.W.2d 569, 570 (Tex. 1990) (quoting Weaver v. Jock , 717 S.W.2d 654, 657 (Tex. App.—Waco

1986, writ ref’d n.r.e.)) .

Thus,

under Texas Rule of Civil Procedure 162, if a defendant does nothing more than

resist the plaintiff’s right to recover, the plaintiff has an absolute right to

a non-suit. Millard , 800 S.W.2d at 841 . “The use of a creative pleading that merely

restates defenses in the form of a declaratory judgment action cannot

deprive the plaintiff of this right.” Id. The Declaratory Judgments Act is not available

to settle disputes already pending before a court. Id. In certain instances, however, a defensive declaratory

judgment may present issues beyond those raised by the plaintiff. Id.

In BHP Petroleum Co. v. Millard , the plaintiff sued the defendant for

breach of the “take-or-pay” obligations of a gas purchase contract. Id. at 842 . T he

defendant counterclaimed, seeking a declaratory judgment “[t]hat events

have occurred which constitute force majeure, as the parties agreed to define

the term, or other causes not reasonably within the control of ANR and its

customers, which have affected and will continue for the foreseeable future

to affect ANR’s takes of natural gas under the Contracts . . . .” Id. (alterations in

original). The court held that because

the gas purchase contract was an ongoing and continuing relationship, the

defendant’s counterclaim for a declaratory judgment was a cause of action on

which the defendant could recover benefits, compensation, or relief if the

plaintiff abandoned or failed to establish its causes of action. Id. The defendant’s counterclaim sought an

interpretation of the gas purchase contract, which would have the effect of

defining the obligations of the parties under that contract in the future. Id.

In Newman Oil Co. v. Alkek , the plaintiffs sued the defendants

for fraudulent representations, breach of contract, and violations of the

Deceptive Trade Practices Act. 614

S.W.2d 653, 653 (Tex. Civ. App.—Corpus Christi 1981, writ ref’d n.r.e.). The defendants counterclaimed for declaratory relief and moved for summary judgment on the

basis that they had not committed fraud, engaged in common law tort or

deceptive trade practices, breached any contracts with the plaintiffs, and were

not liable under the DTPA. Id. at 654–55. Even though the defendants framed the counterclaim

in the form of a request for declaratory relief, the court of appeals held that the allegations

pleaded in the defendants’ counterclaims were not averments of fact upon which

affirmative relief could be granted. Id. at

655 . The defendants’ counterclaims were

merely denials of the plaintiffs’ causes of action. Id.

Similarly, in John Chezik Buick Co. v. Friendly Chevrolet Co. ,

the court found that the

defendant had improperly brought a declaratory judgment

counterclaim because the issue raised by the defendant—that no agency

relationship existed—was already before the court as part of the plaintiff’s

case. 749 S.W.2d 591, 594 (Tex. App.—Dallas 1988, writ

denied).

In this case, Indian’s

first amended original petition seeks injunctive relief, alleging that Linden and B.J.’s construction of the fence was in

violation of the deed restrictions on Linden’s

property. Linden

and B.J.’s counterclaim for declaratory relief sought an “[o]rder declaring

them to be in compliance with the contractual deed restrictions regarding the

construction of their fence.” The trial

court’s judgment states:

(4) Defendants, MARY C. LINDEN and B.J. LINDEN, are in

compliance with the deed restrictions applicable to Lot 74, Block 3, Section 1

of Indian Beach, a subdivision in Galveston, Galveston County, Texas, filed of

record in the Deed of Trust records of the Public Records of Real Property of

the County Clerk of Galveston County, Texas, at Book 3406, Page 838, concerning

their construction of a chain link fence on said lot.

Although Linden and

B.J.’s counterclaim appears to be nothing more than a denial of Indian’s cause

of action, because it involves the interpretation of deed restrictions, Linden

and B.J. have stated a cause of action on which they could recover benefits,

compensation, or relief if Indian abandoned or failed to establish its cause of

action. See Millard , 800 S.W.2d at 842 ; see also Tex. Civ. Prac. & Rem. Code Ann. § 37.003(a) (“A court of

record within its jurisdiction has power to declare rights, status, and other

legal relations whether or not further relief is or could be claimed.”). The deed restrictions on Linden’s property involve an ongoing and continuous

relationship with Indian. See Millard , 800 S.W.2d at 842 .

Linden and B.J.’s

counterclaim sought an interpretation of the deed restrictions, which would

have the effect of defining the obligations of Linden,

B.J., and Indian under those restrictions in the future. See id. Linden

and B.J.’s counterclaim therefore stated a claim for affirmative relief and was

the proper subject of a declaratory judgment.

Compare id. (holding that defendant’s counterclaim was claim for

affirmative relief and declaratory judgment was proper), and Georgiades v. Di Ferrante , 871 S.W.2d 878 , 880–81 (Tex.

App.—Houston [14th Dist.] 1994, writ denied) (same), with Nat’l Enter., Inc. v. E.N.E. Props. , 167 S.W.3d 39 , 43–44 (Tex. App.—Waco 2005, no pet.) (holding that

defendant’s counterclaim was not claim for affirmative relief and declaratory judgment

was improper), Anderson , 122 S.W.3d at 391 (same), Howell

v. Mauzy , 899 S.W.2d 690 , 706–07 (Tex. App.—Austin 1994, writ denied)

(same), and HECI

Exploration Co. v. Clajon Gas Co. , 843 S.W.2d 622, 639 (Tex.

App.—Austin 1992, writ denied) (same) . We overrule this portion of Indian’s

twenty-ninth issue.

Comment on the Evidence

In its sixteenth, twenty-first, and

twenty-seventh issues, Indian contends the trial court (16) erred in submitting

question number four to the jury because it is an improper comment on the

weight of the evidence, it does not give proper guidance, and it is confusing

and misleading, (21) erred in submitting question five to the jury because it

does not give proper guidance, and (27) erred in submitting question six to the

jury because it is an improper comment on the weight of the evidence, it does

not give proper guidance, and it is confusing and misleading. Questions four, five, and six formed the basis of

the declaratory judgment in this case, and the trial court phrased the

questions as follows:

QUESTION 4

Do

you find that the deed restrictions applicable to Defendants’ lot contained a

restriction concerning the use of chain link fencing as a fence material?

QUESTION 5

Do

you find that Defendants’ [sic] violated the applicable deed restrictions in

constructing the fence on their lot?

QUESTION 6

Do

you find that the use of chain link fencing by Defendants’ [sic] was in harmony

with existing structures in the subdivision?

Improper Comment

An appellate court reviews allegations of error

in the jury charge under an abuse of discretion standard. Tex.

R. Civ. P . 277; Howell Crude Oil Co. v. Donna Refinery Partners ,

928 S.W.2d 100, 110 (Tex. App.—Houston [14th Dist.] 1996, writ denied) (holding

trial court has wide discretion in submitting jury questions as well as

instructions and definitions); European Crossroads’ Shopping Ctr., Ltd. v.

Criswell , 910 S.W.2d 45, 54 (Tex. App.—Dallas 1995, writ denied) . Texas Rule of Civil Procedure 277 provides:

The court shall not in its charge comment

directly on the weight of the evidence or advise the jury of the effect of

their answers, but the court’s charge shall not be objectionable on the ground

that it incidentally constitutes a comment on the weight of the evidence or

advises the jury of the effect of their answers when it is properly a part of

an instruction or definition.

Tex.

R. Civ. P .

277. “To be a direct comment on the weight of the evidence , the issue submitted must

suggest to the jury the trial court’s opinion on the matter.” H.E. Butt Grocery Co. v. Bilotto ,

985 S.W.2d 22, 24 (Tex. 1998); Southmark

Mgmt. Corp. v. Vick , 692 S.W.2d 157, 160 (Tex. App.—Houston [1st

Dist.] 1985, writ ref’d n.r.e.).

Furthermore, to warrant reversal, a comment on the weight of the evidence

must be one that probably caused the rendition of an improper judgment. Tex.

R. App. P . 44.1(a)(1).

Questions four, five, and

six do not constitute comments

on the weight of the evidence because they do not suggest the

trial court’s opinions on these matters to the jury. See Bilotto , 985 S.W.2d at 24 ; Williams

v. Viswanathan , 64 S.W.3d 624, 630 (Tex.

App.—Amarillo 2001, no pet.); Vick , 692 S.W.2d at 160 . Each question is worded in a simple manner

and asks the jury to decide a unique factual dispute. In addition, Indian has failed to demonstrate

that the wording of these questions probably caused the rendition of an

improper judgment. See Tex. R. App. P .

44.1(a)(1).

Misleading and

Confusing

“Generally, error in the submission of an issue

is harmless when the findings of the jury in answers to other issues are

sufficient to support the judgment.” Boatland

of Houston, Inc. v. Bailey ,

609 S.W.2d 743, 750 (Tex.

1980). An exception exists, however,

when the erroneously submitted issue confuses or misleads the jury. Id. Whether a party suffers harm may be considered in

light of the charge as a whole. Id.

Indian bases its

contentions on the improper assumption that the only way Linden

and B.J. could have complied with the deed restrictions on Linden’s property was to obtain the written approval

of the Architectural Control Committee before building the fence. Indian then contends that questions four and

six mislead the jury because they suggest that the word “chain-link” must

appear in the deed restrictions before the use of chain-link fencing can be

prohibited, and they suggest that the “harmony” factor is the only relevant

factor the Architectural Control Committee considers when deciding whether to

approve a fencing material. T he deed restrictions

provide that, “ [i]n the event the Committee fails to approve or disapprove the plans

within forty-five (45) days after same have been submitted to it, approval will

be presumed and this paragraph will be deemed to have been fully complied

with.” The jury therefore did not have

to believe that the deed restrictions must expressly prohibit chain-link

fencing, or that the harmony factor is the only factor considered by the

Architectural Control Committee, before it could validly find that Linden and B.J. did not violate the applicable deed

restrictions in constructing the fence without the written approval of the

Committee. Questions four, five, and six

are not confusing or misleading. See

Bailey , 609 S.W.2d at 750 ; City

of San Antonio v. Rodriguez ,

856 S.W.2d 552, 558 (Tex. App.—San Antonio 1993, writ denied); Hedley

Feedlot, Inc. v. Weatherly Trust , 855 S.W.2d 826, 842 (Tex. App.—Amarillo 1993, writ denied); Denman

v. Burris , 815 S.W.2d

793 , 796–97 (Tex. App.—El Paso 1991, writ denied).

Improper Guidance

The Texas Supreme Court has emphasized that it

is “fundamental to our system of justice that parties have the right to be

judged by a jury properly instructed in the law.” Crown Life Ins. Co. v. Casteel , 22 S.W.3d 378, 388 (Tex. 2000).

Indian’s brief to this court, however, fails to explain the manner in

which the trial court failed to give the jury the proper guidance on the law in

questions four, five, and six. See Tex.

R. App. P . 38.1(h). Indian has

also failed to demonstrate that the submission of these questions as worded

caused the rendition of an improper judgment.

See Tex. R. App. P . 44.1(a)(1). We overrule Indian’s sixteenth, twenty-first, and

twenty-seventh issues.

Question of Law

In its twentieth issue, Indian contends the trial court erred

in submitting question number five to the jury because it requires the jury to

make a legal conclusion about the applicable deed restrictions. Question five asked the jury whether Linden and B.J. violated the applicable deed

restrictions in constructing the fence on Linden’s

property.

An appellate court reviews allegations of error

in the jury charge under an abuse of discretion standard. Howell Crude Oil Co. , 928 S.W.2d at 110

(explaining that trial court has wide discretion in submitting jury questions

as well as instructions and definitions); Criswell , 910 S.W.2d at 54 . However, “review of a trial court’s

determination of the legal principles controlling its ruling is much less

deferential,” since “a trial court has no ‘discretion’ in determining what the

law is or applying the law to the facts.”

Walker v. Packer , 827 S.W.2d 833, 840 (Tex. 1992). Consequently,

“a clear failure by the trial court to analyze or apply the law correctly will

constitute an abuse of discretion.” Id. Furthermore, a trial

court commits error if it submits a question of law to the jury. See

Knutson v. Ripson , 163 Tex. 312, 314 , 354 S.W.2d 575, 576 (1962) ;

Hudson

Buick, Pontiac, GMC Truck Co. v. Gooch , 7 S.W.3d 191, 195 (Tex. App.—Tyler

1999, pet. denied); Markert v. Williams , 874 S.W.2d

353, 356 (Tex. App.—Houston [1st Dist.] 1994, writ denied) (“A jury may not be

called upon to construe the legal effect of an instrument.”). Absent a showing of extraneous prejudice,

however, such error is harmless. Med.

Towers, Ltd. v. St. Luke’s Episcopal Hosp. , 750 S.W.2d 820, 826 (Tex. App.—Houston [14th Dist.] 1988, writ

denied). Error in the jury charge is

reversible if, viewed in light of all of the circumstances, it amounts to such

a denial of the rights of the complaining party as was probably calculated to

cause and probably did cause the rendition of an improper judgment. Tex. R. App. P . 44.1(a)(1); Quantum Chem. Corp. v. Toennies , 47 S.W.3d 473, 480 (Tex. 2001).

Absent a showing of extraneous prejudice, submission of a question of

law to the jury is generally harmless since no harm results if it is answered

as the trial court should have answered it, or it can be deemed immaterial and

disregarded by the trial court if answered incorrectly. Tex.

R. App. P . 44.1(a)(1); Spencer v. Eagle Star Ins. Co. of Am. , 876 S.W.2d 154, 157 (Tex. 1994) (“ A

question which calls for a finding beyond the province of the jury, such as a

question of law, may be deemed immaterial.”) ; Med. Towers , 750 S.W.2d at 826 .

The construction of an unambiguous

deed is a question of law for the

court. J. Hiram Moore, Ltd. v. Greer , 172 S.W.3d 609, 613 (Tex. 2005); Luckel v. White , 819 S.W.2d 459, 461 (Tex. 1991).

An unambiguous deed is one that can be given a definite or certain legal

meaning. Stewart Title Guar. Co. v.

Aiello , 941 S.W.2d 68, 74 (Tex. 1997). Where neither party asserts that a deed is ambiguous, its construction is purely a question of law and not of fact. Templeton

v. Dreiss , 961 S.W.2d 645 , 657 n.14 (Tex. App.—San Antonio 1998,

pet. denied). “The inquiry becomes a mixed question of law and fact only where the words contained in the instrument are

ambiguous.” Id. When a deed is unambiguous, whether a party has

breached a deed restriction is a question of law for the court and not a

question of fact for the jury. See Aguiar v. Segal , 167

S.W.3d 443, 450 (Tex. App.—Houston

[14th Dist.] 2005, pet. denied); Bank One, Tex.,

N.A. v. Stewart , 967 S.W.2d 419, 432 (Tex. App.—Houston [14th Dist.] 1998, pet. denied); Meek v. Bishop Peterson

& Sharp, P.C. , 919 S.W.2d 805, 808

(Tex. App.—Houston [14th Dist.] 1996, writ denied).

Question number five presents a question of law

because the deed restrictions in this case are unambiguous. See

Aiello , 941 S.W.2d at 74 . The trial court therefore erred in submitting

this question to the jury. See Aguiar , 167 S.W.3d

at 450 ; Stewart , 967 S.W.2d at 432 ; Meek , 919 S.W.2d at 808 . In its appellate brief, however, Indian does

not address the requirement that extraneous prejudice must be shown to

demonstrate that an error in submitting a question of law to the jury is

harmful, and, consequently, makes no effort to demonstrate extraneous

prejudice. Absent a showing of

extraneous prejudice, submission of a question of law to the jury is generally

harmless because no harm results if it is answered as the trial court should

have answered it, or it can be deemed immaterial and disregarded by the trial

court if answered incorrectly. Med. Towers , 750 S.W.2d at 826 .

Because Indian has failed to demonstrate extraneous prejudice stemming

from the erroneous submission of question five to the jury, we hold that the

trial court’s error was harmless. See Tex.

R. App. P . 44.1(a)(1). The jury

answered question five in the same manner as the trial court should have answered

it. We overrule Indian’s twentieth

issue.

Attorney’s Fees

In

its thirty-first, thirty-second, thirty-third, thirty-fourth, and thirty-fifth

issues, Indian contends there is no legal basis to support the trial court’s

award of attorney’s fees to Linden and B.J., and that the award of attorney’s

fees is not equitable and just.

Generally, attorney’s fees are not

recoverable in Texas unless allowed by

contract or by statute. Dallas Cent.

Appraisal Dist. v. Seven Inv. Co. , 835 S.W.2d

75, 77 (Tex. 1992); London v. London ,

94 S.W.3d 139 , 151–52 (Tex. App.—Houston

[14th Dist.] 2002, no pet.) (Fowler, J., concurring). Whether attorney’s fees are available under a

particular statute is a question of law, which we review de novo. See Holland

v. Wal-Mart Stores, Inc. , 1

S.W.3d 91, 94 (Tex. 1999); BASF Fina Petrochems., L.P. v. H.B. Zachry

Co. , 168 S.W.3d 867, 871 (Tex.

App.—Houston [1st Dist.] 2004, pet.

denied). Consequently, the

jury’s finding on the amount of

reasonable attorney’s fees is immaterial to the ultimate legal issue of whether

such fees are recoverable. Holland , 1

S.W.3d at 94 .

The Declaratory Judgments Act allows a trial

court to award reasonable and necessary attorney’s fees as are equitable and

just. See Tex. Civ. Prac. & Rem. Code Ann. § 37.009 (Vernon 1997).

The Act “entrusts attorney fee awards to the trial court’s sound

discretion, subject to the requirements that any fees awarded be reasonable and

necessary, which are matters of fact, and to the additional requirements that

fees be equitable and just, which are matters of law.” Bocquet v. Herring , 972 S.W.2d 19, 21 (Tex. 1998).

“Unreasonable fees cannot be awarded [under the Act], even if the court

believed them just, but the court may conclude that it is not equitable or just

to award even reasonable and necessary fees.”

Id. A party need not prevail to be awarded

attorney’s fees under the Declaratory Judgments Act. Gennedy , 125 S.W.3d

at 701 ; Hunt

v. Baldwin , 68 S.W.3d 117, 135 (Tex.

App.—Houston [14th Dist.] 2001, no

pet.) .

An award of attorney’s fees under the

Declaratory Judgments Act is reviewed for abuse of discretion. Bocquet , 972 S.W.2d at 21 . A

trial court does not abuse its discretion if some evidence reasonably supports

its decision. Butnaru v. Ford Motor

Co. , 84 S.W.3d 198, 211 (Tex. 2002) . To find an abuse of

discretion, the trial court must have acted without reference to any guiding

rules or principles, such that the act was arbitrary or unreasonable. Downer v. Aquamarine Operators, Inc. , 701 S.W.2d 238 , 241–42 (Tex. 1985) .

At trial, Linden and B.J. sought and obtained a valid

declaratory judgment stating:

(4) Defendants, MARY C. LINDEN and B.J. LINDEN, are in

compliance with the deed restrictions applicable to Lot 74, Block 3, Section 1

of Indian Beach, a subdivision in Galveston, Galveston County, Texas, filed of

record in the Deed of Trust records of the Public Records of Real Property of

the County Clerk of Galveston County, Texas, at Book 3406, Page 838, concerning

their construction of a chain link fence on said lot.

See Tex. Civ. Prac. & Rem.

Code Ann. § 37.003(a). We have

found no valid grounds in this appeal upon which to reverse this declaratory

judgment. The Declaratory Judgments Act

therefore provides a valid basis to support the trial court’s award of

attorney’s fees to Linden and

B.J. See id. § 37.009. We also hold that the trial court’s award of

attorney’s fees in this case was equitable and just. The trial court therefore did not abuse its

discretion in awarding attorney’s fees to Linden and B.J. [1] Robinson v. Budget Rent-A-Car Sys., Inc. ,

51 S.W.3d 425, 433 (Tex. App.—Houston

[1st Dist.] 2001, pet. denied) (affirming denial of attorney’s fees under Declaratory

Judgments Act); Tanglewood Homes Ass’n, Inc. v. Henke , 728 S.W.2d 39, 45 (Tex. App.—Houston

[1st Dist.] 1987, writ ref’d n.r.e.) (affirming award of attorney’s fees under Declaratory

Judgments Act); Intertex, Inc. v. Cowden , 728 S.W.2d 813 , 819–20 (Tex.

App.—Houston [1st Dist.] 1986, no writ) (affirming award of attorney’s fees

under Declaratory Judgments Act). We

overrule Indian’s thirty-first,

thirty-second, thirty-third, thirty-fourth, and thirty-fifth issues.

Conclusion

We hold that the trial court did not

abuse its discretion in refusing to grant a permanent injunction in favor of

Indian, t he evidence is legally and factually sufficient to support the

jury’s finding that Linden and B.J.’s construction of the fence was not a

wrongful act ,

t he evidence is legally and

factually sufficient to support the jury’s finding that Linden and B.J.’s

construction of the fence did not violate any applicable deed restrictions on

Linden’s property, there is no conflict in the jury’s answers to the charge

questions, t he trial court properly denied Indian’s

request for attorney’s fees, the trial court

had jurisdiction to enter the declaratory judgment, the trial court’s declaratory judgment that Linden and

B.J.’s construction of the fence was in compliance with the deed

restrictions applicable to Linden’s property was proper, charge q uestions four, five, and six do not constitute comments on the weight of the evidence, nor are they confusing or misleading, and t he trial court did not abuse its discretion in awarding

attorney’s fees to Linden and B.J.

The trial court erred in entering a

declaratory judgment stating that the deed restrictions applicable to Linden’s property do not prohibit the use of

chain-link fence as a fencing material, and stating that the use of chain-link

fencing on Linden’s property is in

harmony with the existing structures in the Indian Beach

subdivision.

We therefore modify the trial court’s

judgment and delete paragraphs one and two.

We affirm the remainder of the trial court’s judgment.

Jane Bland

Justice

Panel consists of Chief Justice

Radack and Justices Jennings and Bland.

[1] Section 5.006(a) of the Texas Property Code states,

“[i]n 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.” Tex.

Prop. Code Ann . § 5.006(a) (Vernon 2004). The trial court could not have awarded Linden and B.J. attorney’s fees under section 5.006(a)

because Linden and B.J. did not assert a claim

for breach of a restrictive covenant. Id. Only a party who successfully prosecutes a

claim alleging breach of a restrictive covenant is entitled to recover attorney’s

fees under section 5.006(a). City of Pasadena v. Gennedy , 125 S.W.3d 687,

701 (Tex. App.—Houston [1st Dist.] 2003, pet.

denied) ; Anderson v. New Prop. Owners’ Ass’n of Newport, Inc. , 122 S.W.3d 378, 390 (Tex. App.—Texarkana 2003,

pet. denied) ; Pebble Beach Prop. Owners’ Ass’n v. Sherer , 2

S.W.3d 283 , 291–92 (Tex. App.—San Antonio 1999, pet. denied) .

Because Linden and B.J. were the

defending parties, they could not recover attorney’s fees under section

5.006(a). See Gennedy , 125 S.W.3d at 701 ; Anderson , 122 S.W.3d at 390 ; Sherer , 2 S.W.3d at 291–92.