Tanglewood Homes Association, Inc. v. Stewart A. Feldman, Marla B. Feldman, and Miichael T. Kelly, Trustee

Affirmed in Part and Reversed and Rendered in Part and Opinion filed April

30, 2014.

In The

Fourteenth Court of Appeals

NO. 14-11-01088-CV

TANGLEWOOD HOMES ASSOCIATION, INC., Appellant

V.

STEWART A. FELDMAN, MARLA B. FELDMAN, AND MICHAEL T.

KELLY, TRUSTEE, Appellees

NO. 14-11-01089-CV

STEWART A. FELDMAN, MARLA B. FELDMAN, AND MICHAEL T.

KELLY, TRUSTEE, Appellants

V.

TANGLEWOOD HOMES ASSOCIATION, INC., Appellee

On Appeal from the 80th District Court

Harris County, Texas

Trial Court Cause No. 2008-65420

1

OPINION

These consolidated appeals arise out of a protracted dispute between Stewart

and Marla Feldman and Tanglewood Homes Association, Inc. over the Feldmans’

desire to expand their home. When the Association rejected the Feldmans’

expansion plans as a violation of the Tanglewood Deed Restrictions, the Feldmans

filed suit. Michael T. Kelly, the trustee for a trust that owned the adjacent lot,

intervened in the litigation. At the conclusion of a lengthy, bifurcated trial, the trial

court signed a final judgment awarding the Feldmans and the Trustee (collectively,

plaintiffs) declaratory relief as well as monetary damages and attorneys’ fees. All

parties appealed from that judgment. Because we conclude the Feldmans’

expansion plans are permitted by the Deed Restrictions, we affirm the challenged

portions of the trial court’s judgment awarding plaintiffs declaratory relief. We

also hold, however, that the jury’s “and/or” liability findings will not support the

monetary damage awards, and plaintiffs may not recover their attorneys’ fees

under the statutes on which they rely. We therefore reverse those portions of the

judgment and render a take-nothing judgment on plaintiffs’ claims for damages

and fees.

BACKGROUND

A. Tanglewood Section 8 is a deed-restricted subdivision.

The Feldmans own a home, Tilbury I, in Section 8 of the Tanglewood

subdivision. Each section of Tanglewood is governed by a specific set of deed

restrictions that provide, in pertinent part:

1

This is the opinion of the Court with the exception of Section V.C. Chief Justice Frost

does not join Section V.C., which is the opinion of only Justice Busby.

2

RESTRICTIONS

For the purpose of creating and carrying out a uniform plan for the

improvement and sale of TANGLEWOOD, Section 8, . . . according to

plat thereof filed in the Office of the Harris County Clerk . . . ; [the

Association] being the sole owner of all property located in said

TANGLEWOOD Section 8 desires to restrict the use and development of

the property . . . in order to insure that it will be a high class restricted

district;

Now, therefore, [the Association] . . . does hereby impose the

following restrictions on said property which shall constitute

covenants running with the land, and shall inure to the benefit of [the

Association] . . . and to each and every purchaser of lands in said

Addition and their assigns . . . and any one of said beneficiaries shall

have the right to enforce such restrictions using whatever legal

method deemed advisable . . . .

...

(3) Only one residence shall be constructed on each lot; however,

this shall not prohibit the construction of a residence on a portion of

two or more lots as shown by said map, provided such tract

constitutes a homesite as defined in the succeeding paragraph.

(4) Parts of two or more adjoining lots facing the same street in the

same block may be designated as one homesite provided the lot

frontage shall not be less than the minimum frontage of the lots in the

same block facing the same street.

...

(24) No building shall be built closer to the street or side property

lines than the distance set forth in the schedule attached hereto . . . .

B. The Feldmans plan to expand their home.

In August 2008, the Feldmans learned their next-door neighbor, the owner of

Tilbury II, was selling his home. The Feldmans had long been interested in

expanding their home by converting their existing garage into livable space and

building a new garage onto the house. The Feldmans’ initial plan was to purchase

Tilbury II, annex a portion of the lot into Tilbury I, construct the new garage over

3

the original property line and onto the annexed portion, and then sell the remainder

of Tilbury II as a separate homesite. Based on that initial concept, the Feldmans,

through the Trustee, placed Tilbury II under a purchase contract.

Once the Trustee had placed Tilbury II under contract, Mr. Feldman

contacted the Association regarding his home expansion plans. Mr. Feldman

informed the Association that he believed his expansion plans were permitted by

paragraphs 3 and 4 of the Deed Restrictions. The Association’s manager, William

Roe, responded that he did not believe the Deed Restrictions allowed a home

owner to annex and build on a portion of an adjacent lot, and then sell the

remainder of that lot as a separate homesite. According to the Association, the

originally platted lot lines were part of the Deed Restrictions and the Feldmans’

plan would result in two residences on a single lot, violating paragraph 3 of the

Deed Restrictions.

Although the Feldmans and the Association continued communicating

through September with neither side changing its position, the Trustee closed on

Tilbury II on October 1, 2008. That same day, a Cross Special Warranty Deed was

signed in which portions of Tilbury I and Tilbury II were exchanged. This deed

was never filed in the Harris County Property records.

Just over a week later, the Association sent the Feldmans a letter formally

denying their home expansion plans. According to the Association, the Feldmans’

“plans do not address either the existing setbacks or setbacks applicable to the

remainder partial lot resulting from the proposed subdivision.” The Association

then informed the Feldmans that “the setbacks as platted would have to be

changed,” which the Association lacked authority to do. The denial letter

concluded by stating that the Association’s board of directors “considered all of

these factors, as well as prior Board decisions” when it voted to deny the

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Feldmans’ proposal.

C. The Feldmans sue the Association and the Trustee intervenes.

Faced with the Association’s denial of their plans, the Feldmans filed suit

against it at the end of October 2008, asserting numerous causes of action. The

Trustee eventually intervened in the litigation, asserting the same causes of action

as the Feldmans.

The parties nevertheless continued to communicate directly regarding the

Feldmans’ plans. These communications included a notice to the Association that

the Feldmans and the Trustee had located a qualified purchaser for Tilbury II, who

required a commitment from the Association that Tilbury II minus the land

annexed into Tilbury I could be used a separate residence. The Association did not

provide that commitment and the sale fell through.

The Feldmans also communicated with the Association about the

construction of a fence along the new boundary line between Tilbury I and Tilbury

II. One communication included an amended plat, which had been approved by

the City of Houston and subsequently filed in the Harris County property records.

In the amended plat, the City of Houston recognized and approved the new

boundary line between Tilbury I and Tilbury II.

The Association initially did not recognize that the provided plat was an

amended plat, and it notified the Feldmans that it was not approving the proposed

fence. When the Association realized that the Feldmans had obtained an amended

plat, it voted to reconsider the Feldmans’ expansion plans. On August 17, 2009,

the Association sent a letter notifying the Feldmans that “the construction of a

garage and driveway on your lot at [Tilbury I] per the reconfiguration shown on

the amending plat are approved, subject to compliance with all applicable setbacks

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(which cannot be confirmed in absence of the submission of plans on the basis of

the amending plat). In addition, the fence is approved.”

The Association later sent a formal “Approval of Construction Plans,”

requesting that Feldman sign and return the document to indicate his agreement to

the terms and conditions for building the garage expansion. This document

contained various restrictions on the actual construction work, as well as a

disclaimer that the previously communicated construction approval concerned

“only the plans associated with the expansion of [Tilbury I] across the lot line onto

a portion of the property at [Tilbury II].” The disclaimer also stated that the

Association “does not forego or waive any argument, contention or defense it may

have or assert with respect to any issue not existing or hereafter arising in the

pending litigation between [the parties]. [The Association] continues to assert that,

if the expansion of [Tilbury I] is completed and [Tilbury II] is sold to a third party,

construction of a new home on [Tilbury II] is prohibited by the deed

restrictions. . . .”

Mr. Feldman signed the document but he also scratched through the

disclaimer, noting that he was “relying on [the Association’s initial] approval letter

. . . .” Despite this disagreement regarding the impact on Tilbury II, construction

began on the Tilbury I garage expansion and was completed in October 2010.

D. The court bifurcates the trial, and Phase One is tried to a jury.

While the parties were negotiating directly regarding the Association’s

approval of the Feldmans’ expansion plans, the litigation over the Association’s

initial denial of the plans continued. The Feldmans filed a second amended

petition and then added numerous supplements prior to trial. By the time the trial

commenced, the Feldmans asserted causes of action for breach of contract, tortious

interference with existing business relations, fraud and fraud in the inducement,

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negligent misrepresentation, promissory estoppel, and unjust enrichment, as well

as an allegation that the Association’s denial of their construction plans was

arbitrary and capricious under section 202.004 of the Property Code. See Tex.

Prop. Code Ann. § 202.004(a) (West 2007). In addition, the Feldmans sought

injunctive relief ordering the Association to stop disapproving their construction

plans and cease impairing the sale of a reconfigured Tilbury II lot. Finally, the

Feldmans sought to recover their attorneys’ fees under Chapter 38 of the Civil

Practice and Remedies Code and section 5.006 of the Property Code. See Tex.

Civ. Prac. & Rem. Code Ann. § 38.001 (West 2008) (fees recoverable on valid

breach of contract claim); Tex. Prop. Code Ann. § 5.006 (West Supp. 2013) (fees

recoverable in successful action for breach of a restrictive covenant).

Soon after he intervened, the Trustee filed a motion to bifurcate the trial into

two phases. The trial court granted the unopposed motion. The court’s bifurcation

order provided that Phase One of the trial would adjudicate the Feldmans’ and the

Trustee’s liability claims against the Association. Phase One would also determine

the Feldmans’ damages, if any. Phase Two would, if necessary, determine any

damages sustained by the Trustee.2

At the beginning of the pre-trial conference, the day before Phase One of the

trial was scheduled to start, the trial court asked the parties whether there were any

“questions other than law, questions of fact that would be appropriate to be

submitted to a jury.” The trial court’s inquiry sparked a discussion that led to the

trial court announcing the following:

2

As none of the parties to this appeal have challenged the validity of the trial court’s

bifurcation order, we express no opinion regarding the propriety of that order. Cf. Tex. Civ.

Prac. & Rem. Code Ann. § 41.009 (West 2008) (providing that, upon a defendant’s motion, a

trial court shall bifurcate a trial, with the first phase determining liability and compensatory

damages and the second, if necessary, the amount of punitive damages).

7

. . . I believe the August 17th, 2009 letter sent from the Association to

the Feldmans without any qualification or reservation, where the fence

along the new property line as replatted was approved, and the

construction plans as previously submitted are approved, just subject

to what appears to be final approval, and I think that might be as to the

way the appearance that would be more than the existence of the

structure or how it’s situated on the property.

But subject to that the Court finds that since this took place, while

there’s been protracted litigation in this case, and combined with the

fact that there was no effort by the Association to obtain or seek

injunctive relief to stop the fence from going in or to stop the

construction going on, and actually affirmatively approved it without

reservation or qualification, other than maybe just the aesthetic

quality, . . . that the Association would have waived any objection to

the situating of the improvement on the property or the new fence

line, or its previous requirement that Tilbury II would have to be

demolished or cannot be reconstructed.

The Court finds that the approval and the construction that took place

still provides that in fact there is only one house on Tilbury I, there’s

one house on Tilbury II, and the Association is estopped from

claiming that now that the Feldmans, in reliance on the approval, have

gone ahead and completed the . . . improvement on Tilbury I, and had

apparently substantially commenced or engaged in the improvement

of Tilbury I at the time that a later document purporting to rescind part

of the approval came through, that again, there was waiver and

estoppel that would prevent the Association from either requiring the

Feldmans to tear down the improvements on Tilbury I, or to have to

tear down Tilbury II, or require that Tilbury II be demolished.

So, . . . the Court finds that the Association apparently was within its

legal right to initially deny the plans until certain requirements were

met or until there was a compliance with the [Association’s]

guidelines.

And so, I think the question then becomes at the time that the plans

were approved, are the Feldmans entitled to legal fees at some point,

which may be from August 17, 2009 or a date to be more clearly

identified.

8

After a question seeking clarification, the Court continued:

What we may need to address is, to have a vehicle for the Court to

make a formal ruling on that, . . . does a motion for summary

judgment need to be submitted to address that issue. . . . [A]gain,

what I’m considering is, is there something that would justify having a

jury here for two weeks, and I don’t think so. That’s why I’m

addressing it now, because if need be I can give leave to submit a

summary judgment that would allow the Court to formally make the

ruling and then respectfully would allow the Homeowners Association

if you wish to appeal the Court’s findings as a matter of law on that

issue.

Plaintiffs did not seek leave to file a motion for summary judgment on this issue

and instead proceeded to trial the next day on the pleadings in place at that time,

which did not include a claim for declaratory relief.

The pre-trial conference then addressed many topics related to the facts of

the case, the causes of action asserted by the Feldmans, and ultimately whether the

Feldmans, if they were successful, would be able to recover attorneys’ fees. The

Feldmans continued to argue they could recover their fees under either section

5.006 of the Property Code or Chapter 38 of the Civil Practice and Remedies Code.

During this discussion, the trial court expressed doubt that either statute provided

the Feldmans with a basis to recover fees under the facts of the case.

Trial commenced the next day, and throughout the trial the court continued

the dialogue with the attorneys regarding the Feldmans’ ability to recover

attorneys’ fees. The trial court continued to express doubt that either statutory

provision authorized a recovery of fees, and it raised the possibility of other

theories that would allow plaintiffs to recover their fees. Then, on the fifth day of

trial, the following exchange took place:

[Feldmans’ Counsel]: Your Honor, we certainly believe that 5.006

and Chapter 38 entitle us to attorney’s fees. We have basically

9

presented our whole case, we are about to finish. . . .

....

And if the Court is of the opinion that Chapter 38 and the

Property Code do not lend itself to attorney’s fees as presented, then

we would ask for a trial amendment in order to assert it as a

declaratory judgment action . . . . We don’t have any new evidence,

everything has been presented, it’s just as the evidence presented I

think that supports it that way if the Court feels it’s more appropriate.

[Association’s Counsel]: Declaratory judgment in what regard?

THE COURT: To determine whether or not the Feldmans were

allowed to build the - -

[Feldmans’ Counsel]: Home addition, the fence and the footprint.

THE COURT: Whether or not they were allowed to build the

improvements or not. That’s the whole issue in the case and that was

in dispute from the beginning. And I don’t know any basis why they

would not be entitled to a trial amendment to have it framed as a - -

because they did plead for attorney’s fees all the way along. And just

from my reading it seems that that would be - - the only appropriate

vehicle I can see at this time to allow them to submit attorney’s fees

would be under the declaratory judgment act.

The trial court concluded: “I don’t see any reason why they wouldn’t be allowed to

amend, trial amendment on that, nothing changed under the facts of the case.”

Over the Association’s objection, the trial court gave the Feldmans leave to amend

their pleadings to add a declaratory judgment cause of action.

At the conclusion of the evidence in Phase One of the trial, the court granted

a directed verdict on the Feldmans’ request for declaratory judgment. The

remainder of the case was then submitted to the jury. In Question 1, the jury was

asked: “Do you find that [the Association’s] denial of any of the Feldmans’ and/or

10

the Trustee’s plans was arbitrary or capricious?” 3 The jury answered “Yes.” In

Question 3, the jury answered “Yes” to the following question: “Did [the

Association] make a negligent misrepresentation on which the Feldmans and/or the

Trustee justifiably relied?” The jury went on to find in Question 2 that the earliest

date the Association acted arbitrarily and capriciously in denying the Feldmans’

and/or the Trustee’s plans was October 9, 2008, and in Question 4 that this was

also the date of the earliest negligent misrepresentation by the Association.

Questions 5 and 6 submitted the Feldmans’ damages. Neither question was

conditioned upon a liability finding in favor of the Feldmans alone. Instead, in

Question 5, the jury was instructed to answer if it had answered “Yes” to Question

1 (regarding arbitrary or capricious denial), and to answer Question 6 if it had

answered “Yes” to Question 3 (regarding negligent misrepresentation). In

response to Question 5, the jury found that $45,000 would fairly and reasonably

compensate the Feldmans for their damages “that resulted from the date [the jury]

found in [its] answer to Question No. 2.” In response to Question 6, the jury found

that $45,000 would fairly and reasonably compensate the Feldmans for their

damages “that resulted from the date [the jury] found in [its] answer to Question

No. 4.”4 Finally, the jury found that the Feldmans were entitled to $400,000 as

reasonable attorneys’ fees for the necessary services rendered by their attorneys in

the preparation and trial of the case through the day of the jury’s verdict. The jury

also found reasonable attorneys’ fees for the necessary services to be rendered by

3

The question defined “arbitrary or capricious” as “a decision not done according to

reason or judgment, or done without fair, solid, and substantial cause, and is a willful and

unreasoning action, an action without consideration and in disregard of the facts and

circumstances that existed at the time the decision was made.”

4

Because we reverse the damages on other grounds, we express no opinion regarding

whether section 202.004(a) of the Property Code creates or recognizes a cause of action for

arbitrary or capricious exercise of discretionary authority by a property owners’ association that

can support an award of compensatory damages.

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the Feldmans’ attorneys in the event of a motion for new trial and in the event of

an appeal.

E. Phase Two is tried, and the court signs a judgment based on both

verdicts.

Before Phase Two began, the Association’s new trial counsel asserted that a

fatal ambiguity existed in the liability findings made by the now-discharged Phase

One jury. According to the Association, the use of “and/or” language in both

Questions 1 and 3 made the charge fatally ambiguous because there were no

independent liability findings for either the Feldmans or the Trustee. The trial

court allowed Phase Two of the trial to proceed as scheduled. At the conclusion of

the evidence, the jury returned a verdict finding that $248,560 would fairly and

reasonably compensate the Trustee for his actual damages. The jury also found

$92,212.81 to be the reasonable attorneys’ fees for the necessary services rendered

by the Trustee’s attorneys in the preparation and trial of the case, as well as other

amounts for necessary services in the event of post-trial motions and an appeal.

The trial court eventually signed an amended final judgment based on the

juries’ verdicts and its own directed verdict. The trial court denied the

Association’s motions for judgment notwithstanding the verdict and for new trial.

ANALYSIS

All parties to this litigation have appealed the trial court’s judgment. We

first address the issues raised by the Association and then turn to the issues raised

by plaintiffs in their joint cross-appeal.

The Association’s Issues on Appeal

I. The per diem award contained in the amended final judgment does not

deprive this court of jurisdiction to resolve this appeal.

Because it challenges this Court’s jurisdiction to hear this appeal, we begin

12

with the Association’s sixth issue, in which the Association contends that the

amended final judgment is interlocutory because it includes an award of per diem

damages to the Trustee for “holding costs” on Tilbury II. The award of $52.67 per

day began on April 19, 2011 and continues “until all appeals, if any, are final.”

We conclude that this per diem award does not render the judgment interlocutory,

so we have jurisdiction to hear these appeals.

The Association cites Hinde v. Hinde, 701 S.W.2d 637, 639 (Tex. 1985), for

the general proposition that a judgment cannot condition recovery on uncertain

events or base its validity on what the parties might do post-judgment. See also

Olympia Marble & Granite v. Mayes, 17 S.W.3d 437, 440 (Tex. App.—Houston

[1st Dist.] 2000, no pet.) (“If the amount awarded by the judgment cannot be

determined, the judgment is interlocutory.”). Because the per diem language in the

amended final judgment refers to specific, ascertainable dates that appear—or will

appear in due course—in the record, we are not faced with the situation addressed

in Hinde.

Here, the amended final judgment (1) orders a fixed payment in the amount

of $52.67 per day; (2) identifies the basis for the payment as holding costs, which

are defined as property taxes and fees due to the Association; and (3) fixes the

duration of the payment as running “from April 19, 2011 until the judgment is

final, or until all appeals, if any, in this case are final, whichever last occurs.” If

this judgment were affirmed on appeal, a clerk could consult the rules and court

documents to determine the date when the per diem payment stops, and then

calculate the total amount due. Accordingly, this judgment is an appealable final

judgment. See Int’l Sec. Life Ins. Co. v. Spray, 468 S.W.2d 347, 349–50 (Tex.

1971) (noting rule that final judgment must be definite and certain, and concluding

that “[s]o long as the judgment of the court makes the figure which the clerk is to

13

place in the writ of execution determinable by ministerial act, the judgment cannot

be said to lack definiteness”). 5 We overrule the Association’s sixth issue.

II. The “and/or” liability verdicts do not support a judgment for damages

in favor of either plaintiff.

In its first issue, the Association contends the trial court erred when it signed

the amended final judgment because the verdict on liability is fatally ambiguous.

The Association points to the two liability questions quoted above, each of which

allowed the jury to answer in the affirmative as to the Feldmans “and/or” the

Trustee. Given these questions, the Association contends, it is impossible to know

whether the jury’s “Yes” answers are findings in favor of the Feldmans, the

Trustee, or both. We agree.

The Feldmans and the Trustee sought to impose liability on the Association.

Therefore, each plaintiff had the burden to secure jury findings that could support a

judgment in its favor. See Ramos v. Frito-Lay, Inc., 784 S.W.2d 667, 668 (Tex.

1990); W & F Transp., Inc. v. Wilhelm, 208 S.W.3d 32, 45 (Tex. App.—Houston

[14th Dist.] 2006, no pet.). Here, neither plaintiff did so. Each liability question

included “and/or” language and a single answer blank. Thus, it is impossible to

know whether the jury’s “Yes” answer to Question 1 is a finding that the

Association’s denial of the Feldmans’ plans or the Trustee’s plans—or both—was

arbitrary or capricious. Similarly, it is impossible to know whether the jury’s

“Yes” answer to Question 3 is a finding that the Association made a negligent

misrepresentation on which the Feldmans or the Trustee—or both—justifiably

5

See also Riner v. Neumann, No. 05-07-010053-CV, 2008 WL 4938438 at *1 (Tex.

App.—Dallas Nov. 20, 2008, no pet.) (mem. op.) (stating that a judgment must provide the

means so that a ministerial officer can determine the amount of damages based on ascertainable

facts, “such as whether a party won or lost an appeal”); cf. Sherer v. Sherer, 393 S.W.3d 480,

489 (Tex. App.—Texarkana 2013, pet. denied) (concluding that judgment contemplating further

proceedings is final if the proceedings are “a ministerial act,” but interlocutory if they “would

require a judicial determination of disputed facts”).

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relied. See In re United Scaffolding, 377 S.W.3d 685, 689–90 & n.3 (Tex. 2012)

(observing that the use of and/or in legal documents “inherently leads to ambiguity

and confusion”). Because the jury’s ambiguous answers are not findings of

liability to each plaintiff, they cannot support a judgment. See W & F Transp., 208

S.W.3d at 47 (reversing trial court’s judgment and rendering take-nothing

judgment for two defendants because verdict did not establish individual liability

of either defendant); J & C Drilling Co. v. Salaiz, 866 S.W.2d 632, 640–41 (Tex.

App.—San Antonio 1993, no writ.) (holding ambiguous finding that one “or”

another defendant was liable did not provide a proper basis for judgment).

The remainder of the jury charge does not resolve these ambiguities. In

Phase One, the damage questions submitted for the Feldmans were not conditioned

on an affirmative finding of liability in favor of the Feldmans alone. Instead,

Question No. 5 instructed the jury: “If your answer to Question No.1 [the arbitrary

or capricious denial liability question] is “Yes,” then answer Question No. 5.

Otherwise, do not answer Question No. 5.” Similarly, Question No. 6 instructed

the jury: “If your answer to Question No. 3 [the negligent misrepresentation

liability question] is “Yes,” then answer Question No. 6. Otherwise, do not answer

Question No. 6.” As explained above, the jury’s “Yes” answers to Questions 1 and

3 could represent a finding of liability only in favor of the Trustee.6 Thus, the

jury’s damage awards in Questions 5 and 6 do not supply a finding that the

Association is liable to the Feldmans.

Likewise, the Phase Two jury charge does not help clarify the ambiguous

liability findings with respect to the Trustee. The Phase Two charge instructed the

6

Nor did the body of either question direct the jury to determine the Feldmans’ damages

resulting from an arbitrary or capricious denial of their plans, or from a negligent

misrepresentation on which they relied. Rather, each question asked the jury to determine the

Feldmans’ damages that “resulted from the date” of the earliest denial or misrepresentation.

15

second jury that they were only deciding the Trustee’s damages because liability

had already been found against the Association. The jury was told its “role in this

case [is] to determine the amount of damages, if any, that [the Association] must

pay [the Trustee].” Accordingly, the second jury’s damage awards do not supply a

finding that the Association is liable to the Trustee.

Plaintiffs contend that the record resolves the ambiguities because it shows,

for example, that an arbitrary and capricious denial as to the Feldmans was also an

arbitrary and capricious denial as to the Trustee. But we cannot rely on a disputed

record to make a finding that a party contends the jury should have made.

Although an appellate court “must try to interpret [a jury finding] in a manner that

supports the judgment,” and may examine the record in doing so, the court may not

“speculate about what the jury intended in reaching a particular verdict or create

certainty out of jury findings that are ambiguous.” W & F Transp., 208 S.W.3d at

45. The reason we cannot use the record to supply a finding of liability in the face

of ambiguity is that “a court of appeals cannot make original findings of fact; it can

only ‘unfind’ facts.” Lovelace v. Sabine Consol., Inc., 733 S.W.2d 648, 655 (Tex.

App.—Houston [14th Dist.] 1987, writ denied).

This is not a case in which undisputed facts in the record allow us to

ascertain the intent of the jury’s liability findings “with definiteness and certainty.”

Rountree Motor Co. v. Smith Motor Co., 109 S.W.2d 296, 300 (Tex. Civ. App.—

Beaumont 1937, writ dism’d); see W & F Transp., 208 S.W.3d at 45 (examining

undisputed evidence to determine jury intended to hold W & F Transportation, Inc.

liable even though charge referred to W & F Transportation). Nor do plaintiffs

contend that the evidence of an arbitrary or capricious denial or of justifiable

reliance on a negligent misrepresentation is conclusive, such that we should hold

the Association liable to each of them as a matter of law.

16

Instead, the record shows that liability was disputed. Thus, even if the

evidence, for example, could support a finding of an arbitrary and capricious denial

as to the Feldmans, as well as an arbitrary and capricious denial as to the Trustee,

“the verdict does not clearly show that that is what the jury intended to find.” J &

C Drilling, 866 S.W.2d at 641. We are simply not “permitted to speculate as to

what the jury intended by an ambiguous answer which, because of its ambiguity,

cannot constitute a proper basis for a judgment.” Cactus Drilling Co. v. Williams,

525 S.W.2d 902, 907 (Tex. Civ. App.—Amarillo 1975, writ ref’d n.r.e.); see

Parker v. Keyser, 540 S.W.2d 827, 831 (Tex. Civ. App.—Corpus Christi 1976, no

writ) (holding jury finding that one “and/or” another defendant wrongfully

removed property was ambiguous and could not support judgment, and concluding

evidence showing both defendants had removed property could not sustain finding

because “the evidence nevertheless is conflicting and in view of the ‘and/or’

submission . . . , we could only speculate what the jury intended”).

To the extent plaintiffs contend the cases cited above are no longer good

law, we disagree. Plaintiffs rely on the Supreme Court of Texas’s opinion in In re

B.L.D. in support of their argument that the Association failed to preserve error as

to its first issue. See 113 S.W.3d 340, 348–50 (Tex. 2003). Plaintiffs point out

that the Association’s counsel did not object when the “and/or” language in the

liability questions was discussed at the charge conference; indeed, the

Association’s own proposed charge included that language.

In In re B.L.D., two parents asserted that they had a constitutional right to a

separate jury finding as to each alleged statutory basis for termination of their

parental rights under section 161.001(1) of the Family Code, so those bases should

not have been submitted to the jury within a single broad-form question. See id. at

348. The supreme court held that the parents failed to preserve error because they

17

did not voice this complaint in the trial court. See id. at 348–50.

The jury charge in In re B.L.D. was not ambiguous, and the jury’s verdict

showed that petitioner was entitled to have the respondents’ parental rights

terminated. See id. at 344–45. In the case under review, however, the Association

is not asserting a constitutional right to a certain type of jury charge, and the jury’s

verdict contains ambiguities that prevent this Court from determining whether the

jury found the Association to have engaged in allegedly actionable conduct as to

the Feldmans, the Trustee, or both. Plaintiffs have not cited, and our research has

not revealed, any cases applying B.L.D. to conclude that a single finding of liability

to (or against) multiple possible parties will, absent objection, support a judgment

in favor of (or against) each party. 7 To the contrary, a defendant cannot be held

accountable for a plaintiff’s failure to secure unambiguous liability findings as to

each party on which an accurate judgment can be based. J & C Drilling, 866

S.W.2d at 641; Lovelace, 733 S.W.2d at 655. We conclude that In re B.L.D. is not

on point.

Plaintiffs also cite cases involving application of the Casteel harm analysis.

See Harris County v. Smith, 96 S.W.3d 230, 236 (Tex. 2002); Crown Life Ins Co.

v. Casteel, 22 S.W.3d 378, 387–88 (Tex. 2000). But the Association does not seek

application of a Casteel harm analysis, and the cases cited by plaintiffs do not

abrogate decisions in which courts have concluded that a defendant cannot be held

7

This lack of authority is not surprising because the two scenarios have very different

effects on the judgment. When a broad-form charge question allows a jury to answer

affirmatively based on one or more statutory bases that support termination of parental rights, the

result of such an answer is the same regardless of which particular bases the jury finds were

proven: a judgment for the petitioner terminating the respondent’s parental rights. But when a

question allows a jury to answer affirmatively as to all plaintiffs and defendants if it finds

liability between one or more plaintiffs and defendants, the correct judgment cannot be

determined; it varies depending on which particular plaintiffs and defendants the jury finds

liable.

18

accountable for a plaintiff’s failure to secure unambiguous liability findings as to

each party on which an accurate judgment can be based. See J & C Drilling, 866

S.W.2d at 641; Lovelace, 733 S.W.2d at 655. Accordingly, we conclude that the

Casteel line of cases is also not on point.

Moreover, plaintiffs’ waiver argument overlooks that the error the

Association complains of here is in the judgment, not the jury charge. J & C

Drilling, 866 S.W.2d at 640. Even assuming the charge is correct because no

objection was made, the jury’s answers are ambiguous and cannot support a

judgment because they do not find liability to specific plaintiffs. Cf. Soon Phat,

L.P. v. Alvarado, 396 S.W.3d 78, 105 (Tex. App.—Houston [14th Dist.] 2013, pet.

denied) (distinguishing between claim of jury charge error and claim that charge,

as submitted, cannot support the imposition of liability in a judgment). The

Association preserved this issue regarding the judgment for our review by raising it

in a motion for judgment notwithstanding the verdict as well as a motion for new

trial. J & C Drilling, 866 S.W.2d at 640; see also Lovelace, 733 S.W.2d at 655

(rejecting argument that defendant “waived complaint by failing to object at trial to

the submission of the form” of the charge because plaintiff had burden “to secure

separate jury findings upon which an accurate judgment can be based”).

For these reasons, we hold the jury’s answer to each liability question is

ambiguous and cannot support the trial court’s amended final judgment awarding

damages to the Feldmans and the Trustee. We sustain the Association’s first issue

and reverse that portion of the judgment.

III. The trial court did not clearly abuse its discretion by granting plaintiffs

a trial amendment to seek declaratory relief.

In its second issue, the Association contends the trial court abused its

discretion when it granted a trial amendment permitting plaintiffs to add a cause of

19

action for declaratory relief. According to the Association, the trial amendment

was prejudicial on its face because it added a new claim to the litigation. Plaintiffs

respond that we should reject this argument because the Association did not show

it was prejudiced by the trial amendment. We agree with plaintiffs.

Trial amendments are governed by Rule 66 of the Texas Rules of Civil

Procedure, which provides that the court may allow amendments to a pleading and

shall do so when the amendment would serve the presentation of the merits without

prejudicing the opposing party’s action or defense on the merits. Tex. R. Civ. P.

66. Under the rule, a trial court has no discretion to refuse a trial amendment

unless: (1) the opposing party presents evidence of surprise or prejudice, or (2) the

amendment is prejudicial on its face because it asserts a new cause of action or

defense, and the opposing party objects to the amendment. Stephenson v. LaBoeuf,

16 S.W.3d 829, 839 (Tex. App.—Houston [14th Dist.] 2000, pet. denied). Trial

amendments that are procedural in nature, such as conforming the pleadings to the

evidence at trial, are mandatory. Id. Substantive amendments or those that change

the nature of the trial are discretionary, and the court’s decision to allow or deny

them may be reversed only if the court clearly abused its discretion. Id.

A proposed trial amendment that asserts a new cause of action may be

prejudicial on its face. Id. But the mere assertion of a new cause of action is not

prejudicial to the opposing party as a matter of law. Id. Instead, we evaluate the

amendment in the context of the entire case to determine prejudice. Id. A trial

amendment is prejudicial on its face if (1) the amendment asserts a new substantive

matter that reshapes the nature of the trial itself; (2) the new matter is of such a

nature that the opposing party could not have anticipated it in light of the

development of the case up to the time the amendment was requested; and (3) the

opposing party’s presentation of its case would be detrimentally affected by the

20

amendment. Id.

Under the above test, a discretionary trial amendment should not be rejected

simply because it alleges a new cause of action. State Bar of Tex. v. Kilpatrick,

874 S.W.2d 656, 658 (Tex. 1994). Instead, to determine whether the trial court

clearly abused its discretion in allowing a trial amendment adding a new cause of

action, we must examine the three factors listed above in the context of the entire

case. See Stephenson, 16 S.W.3d at 839. But the Association does not address

these factors, arguing only that the trial amendment was prejudicial on its face

simply because it added a new cause of action. Indeed, the Association contends

that the Feldmans’ request for declaratory relief duplicates their allegation of

arbitrary or capricious denial, essentially conceding that the requested relief did not

reshape the trial. We hold the Association has not established that the trial court

clearly abused its discretion when it allowed the trial amendment adding a claim

for declaratory relief. We overrule the Association’s second issue.

IV. The trial court did not err in granting declaratory relief.

The Association’s third issue challenges certain declarations that the trial

court included in its amended final judgment. In particular, the trial court declared

that Tilbury I and Tilbury II were separate and distinct lots, with only one home on

each lot, and that those homes could be remodeled or replaced subject to City of

Houston requirements and the Tanglewood Deed Restrictions regarding location,

height, exterior color, and building materials. The trial court also declared that the

Tilbury I and Tilbury II lots had been reconfigured as reflected in the amended plat

filed in the Harris County property records. The trial court declared that the

reconfiguration reset the setback lines, which should be measured only from the

reconfigured lot lines. The trial court further declared that the “improvements

located on [each lot] are in full compliance with” the Tanglewood Section 8 Deed

21

Restrictions. Finally, the trial court declared that the Association, by approving the

Tilbury I construction and the construction of a new fence along the reconfigured

property line, had waived any position taken (1) that Tilbury II is not a separate

and distinct single family lot; and (2) that the home on Tilbury II must be torn

down. We disagree with the Association’s arguments that the trial court erred in

granting this declaratory relief.

A. Standard of review and applicable law

The purpose of the Declaratory Judgments Act is to settle and afford relief

from uncertainty and insecurity with respect to rights, status, and other legal

relations. Tex. Civ. Prac. & Rem. Code Ann. § 37.002(b) (West 2008). A

declaratory judgment is appropriate only if a justiciable controversy exists,

resolvable by the declaration sought, concerning the rights and status of the parties.

Bonham State Bank v. Beadle, 907 S.W.2d 465, 467 (Tex. 1995); Russell v. Metro.

Transit Auth. of Harris Cty., 343 S.W.3d 825, 833 (Tex. App.—Houston [14th

Dist.] 2011, no pet.). There must be a real and substantial controversy involving a

genuine conflict of tangible interests and not merely a theoretical dispute. Id.

We review declaratory judgments under the same standards as other

judgments. Tex. Civ. Prac. & Rem. Code Ann. § 37.010 (West 2008). We look to

the procedure used to resolve the issue below to determine the standard of review

on appeal. Lidawi v. Progressive Cty. Mut. Ins. Co., 112 S.W.3d 725, 730 (Tex.

App.—Houston [14th Dist.] 2003, no pet.). Here, the trial court granted

declaratory relief to plaintiffs following a directed verdict on undisputed evidence.

A directed verdict is warranted when the evidence is such that no other verdict can

be rendered and the moving party is entitled, as a matter of law, to judgment. B &

W Supply, Inc. v. Beckman, 305 S.W.3d 10, 21 (Tex. App.—Houston [1st Dist.]

2009, pet. denied). We review a directed verdict under the same standard of

22

review as a legal sufficiency, or no-evidence, challenge. Robertson v. Odom, 296

S.W.3d 151, 155 (Tex. App.—Houston [14th Dist.] 2009, no pet.). We will uphold

the trial court’s determination in a declaratory judgment action if it is sustainable

upon any legal theory supported by the evidence. Stephenson, 16 S.W.3d at 842.

Restrictive covenants are subject to the general rules of contract

construction. Pilarcik v. Emmons, 966 S.W.2d 474, 478 (Tex. 1998); Wiese v.

Healthlake Cmty. Ass’n, 384 S.W.3d 395, 400 (Tex. App.—Houston [14th Dist.]

2012, no pet.). Our primary goal when construing restrictive covenants is to

ascertain and give effect to the intent of the drafters by using the language of the

instrument as a guide. Wiese, 384 S.W.3d at 400. We examine the restrictive

covenants as a whole in light of the circumstances present when they were written,

affording words and phrases their commonly accepted meanings. Id. We review a

trial court’s interpretation of a restrictive covenant de novo. Id.

B. The declaratory relief does not change the Deed Restrictions or

violate the Local Government Code.

The Association begins its third issue by arguing that the declaratory relief

violates the Deed Restrictions, as well as the Local Government Code, because it

modifies the restriction prohibiting more than one residence per lot. See Tex. Loc.

Gov’t Code Ann. § 212.016(a)(9)(B) (West 2008) (permitting owners of lots to

obtain an amended plat as long as it “does not attempt to remove recorded

covenants or restrictions”). We address these arguments together.

The Association asserts that because the Deed Restrictions reference the

original plat filed in the Harris County property records in 1951, that plat was

incorporated into and became part of the Deed Restrictions. The Association then

argues that because the 1951 plat is part of the Deed Restrictions, the plaintiffs’

efforts to reconfigure their joint property line—including obtaining an amended

23

plat from the City of Houston—were ineffective because the result is two

residences on a single lot under the 1951 plat in violation of the Deed Restrictions.

The Association cites two intermediate appellate court opinions to support its

contention that the declaratory relief is inappropriate. See Farmer v. Thompson,

289 S.W.2d 351, 355 (Tex. Civ. App.—Fort Worth 1956, writ ref’d n.r.e.); Witte v.

Sebastian, 278 S.W.2d 200, 203 (Tex. Civ. App.—Amarillo 1953, no writ). Both

cases hold that a single homeowner cannot unilaterally modify deed restrictions by

obtaining a revised plat from the local governmental authority, but neither case

controls the outcome here.

First, we disagree with the Association’s contention that the Deed

Restrictions expressly incorporate the 1951 plat and thereby render the 1951 lot

lines permanent. In its brief, the Association does not point to any express

language in the Deed Restrictions that supports such a proposition. Although the

provision on which the Association relied in the trial court does reference the 1951

plat, it also makes the restrictions and covenants contained in the Deed Restrictions

“applicable to” the plat, and it recognizes that the plat is “subject to” the

restrictions and covenants. This provision also recognizes that minor changes in

the plat may be made for the efficient installation of improvements. 8 We conclude

this language demonstrates an intent that the property lines found in the 1951 plat

8

The Deed Restrictions provide:

Be It Resolved:

That the restrictions and covenants hereinafter set out shall be, and the same are,

made applicable to Section 8 of Tanglewood . . . the plat of which was filed in the

office of the County Clerk, in Harris County, Texas, under Clerk’s No. 879845.

Said map has been duly authenticated with proper certificates showing dedication

of the streets, drives and easements to the use of the present and future residents

and to the public, subject to the restrictions and covenants herein contained, to the

same extent as though copied at length in said dedication certificate and said map

is subject to only such minor changes as, in the judgment of Tanglewood, are

necessitated by the efficient installation of improvements . . . .

24

could change within the limitations set forth in the Deed Restrictions, such as those

found in paragraphs 3 and 4 quoted above.

Next, we conclude the property line reconfiguration does not change the

Deed Restrictions’ prohibition on more than one residence per lot because such an

action is expressly authorized by paragraphs 3 and 4 of the Deed Restrictions. See

Wiese, 384 S.W.3d at 400 (stating that a court construing a deed restriction should

give words and phrases their commonly accepted meanings). Paragraph 4 allows

parts of two or more adjoining lots facing the same street in the same block to be

designated as one homesite, so long as the lot frontage is not less than the

minimum for that block. It is not disputed that Tilbury I and Tilbury II, as

reconfigured, meet these requirements. Paragraph 3 then allows a residence to be

constructed on that homesite, even though it sits on portions of two or more lots as

shown on the 1951 plat.

Because these paragraphs permit adjacent homeowners to rearrange the

property lines of their lots (within certain limitations not at issue here), we

conclude the Feldmans’ expansion of Tilbury I onto property that was originally

part of Tilbury II in the 1951 plat does not result in two residences on a single lot

in violation of the Deed Restrictions. See Sharp v. deVarga, No. 03-05-00550-CV,

2010 WL 45871, at *6 (Tex. App.—Austin Jan. 8, 2010, pet. denied) (mem. op.)

(“As replatted, there is no dispute that there exists only one residence per lot, and

therefore, there is no violation of the one-residence-per-lot requirement.”). Thus,

the amended plat obtained by the Feldmans does not modify the Deed Restrictions.

Instead, we conclude the amended plat is simply the City of Houston’s recognition

that the owners of Tilbury I and Tilbury II had shifted the property line between

the two adjacent lots in compliance with the City of Houston’s regulations.

25

To interpret the Deed Restrictions as the Association urges would render the

language in paragraphs 3 and 4 permitting adjacent land owners to reconfigure

their lot lines a nullity. See Pilarcik, 966 S.W.2d at 479 (stating that a construction

that nullifies a restrictive covenant should be avoided). Therefore, we hold the trial

court’s declaration that Tilbury I and Tilbury II are separate lots, each containing a

single residence that could be modified or rebuilt, is proper and does not violate the

Deed Restrictions or section 212.016(a)(9)(B) of the Local Government Code.

C. The trial court did not grant overly broad declaratory relief.

Next, the Association contends the declaratory relief granted by the trial

court is overly broad because it declares that Tilbury I and Tilbury II are in full

compliance with the Deed Restrictions. The Association argues the record does

not contain evidence that Tilbury I and Tilbury II are in full compliance with every

restriction, such as the prohibition against keeping cattle and hogs on the property.

We conclude the declaration is not as broad as the association contends. The

trial court declared that “the improvements located on both Tilbury I and Tilbury II

are in full compliance with the Restrictions for [Tanglewood] including, but not

limited to, the setback lines” (emphasis added). Because the declaration is limited

to the improvements, it is not overly broad and is supported by the evidence.

D. The Association has not challenged the directed verdict on the

issues of waiver and estoppel.

Finally, the Association challenges the trial court’s declaration that the

Association waived any position that Tilbury II is not a separate and distinct family

lot and that the Association is estopped from arguing the home on Tilbury II must

be torn down. The declaration was based on the grant of a directed verdict on the

issues of waiver and estoppel. In this section of its brief, the Association does not

mention the directed verdict. Instead, its argument begins, and ends, with a

26

statement of the legal principle that issues of waiver and estoppel are ordinarily

questions of fact to be resolved by a jury. 9 While we agree that allegations of

waiver and estoppel based on disputed facts present jury questions, the court can

rule on those defenses as a matter of law when the facts are clearly established.

Caldwell v. Callender Lake Prop. Owners Improvement Ass’n, 888 S.W.2d 903,

910 (Tex. App.—Texarkana 1994, writ denied). Because the Association has not

challenged the directed verdict on those defenses, it has provided no basis for

overturning the trial court’s declarations that they apply.

Having addressed and rejected each argument raised in the Association’s

third issue on appeal, we overrule that issue.

V. The trial court improperly awarded attorneys’ fees to the Feldmans and

the Trustee under the Declaratory Judgments Act.

In its fourth issue, the Association contends the trial court erred when it

awarded attorneys’ fees to the Feldmans and the Trustee. According to the

Association, the awards of attorneys’ fees under the Declaratory Judgments Act are

improper because the declarations were sought solely for the purpose of obtaining

fees, which are not otherwise recoverable under any other claim asserted by the

Feldmans and the Trustee. We agree with the Association.

A. Standard of review and applicable law

The Declaratory Judgments Act, Tex. Civ. Prac. & Rem. Code Ann.

§ 37.001 et seq. (West 2008), provides that a trial court may award costs and

reasonable attorney’s fees when doing so is equitable and just. Id. § 37.009.

9

The Association also asserts in passing that the evidence is legally and factually

insufficient to support the trial court’s determination regarding waiver and estoppel. But it

provides no analysis or record citations to support these assertions, so we do not consider them.

See San Saba Energy, L.P. v. Crawford, 171 S.W.3d 323, 338 (Tex. App.—Houston [14th Dist.]

2005, no pet.).

27

Because the Act does not require an award of attorney’s fees, on appeal we review

the trial court’s judgment awarding fees for an abuse of discretion. Bocquet v.

Herring, 972 S.W.2d 19, 20 (Tex. 1998); Bank of N. Y. Mellon v. Soniavou Books,

L.L.C., 403 S.W.3d 900, 907 (Tex. App.—Houston [14th Dist.] 2013, no pet.). A

trial court abuses its discretion if it misinterprets or misapplies the law or acts

arbitrarily or unreasonably. See Perry Homes v. Cull, 258 S.W.3d 580, 598 &

n.102 (Tex. 2008); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–

42 (Tex. 1985); City of Carrollton v. RIHR, Inc., 308 S.W.3d 444, 454 (Tex.

App.—Dallas 2010, pet. denied).

“[A] party cannot use the [Declaratory Judgments Act] as a vehicle to obtain

otherwise impermissible attorney’s fees.” MBM Fin. Corp. v. Woodlands

Operating Co., 292 S.W.3d 660, 669 (Tex. 2009). As the supreme court has

explained, “[i]f repleading a claim as a declaratory judgment could justify a fee

award, attorney’s fees would be available for all parties in all cases. That would

repeal not only the American Rule [prohibiting fee awards unless specifically

provided by contract or statute] but also the limits imposed on fee awards in other

statutes.” Id. For these reasons, “fees are not permissible under § 37.009 where

[the declaration is sought] solely for the purpose of obtaining attorney’s fees.”

Kenneth Leventhal & Co. v. Reeves, 978 S.W.2d 253, 258 (Tex. App.—Houston

[14th Dist.] 1998, no pet.); see also City of Carrollton, 308 S.W.3d at 454 (“It is an

abuse of discretion to award attorney’s fees . . . when the [Act] is relied upon

solely as a vehicle to recover attorney’s fees.”).

B. The declarations were sought solely for the purpose of obtaining

attorneys’ fees.

In this case, the record shows that plaintiffs sought the declarations solely

for the purpose of recovering their attorneys’ fees. Prior to trial, plaintiffs alleged

28

in their live pleadings that the Association’s rejection of their respective

construction plans was arbitrary or capricious because such action was directly

contrary to the Deed Restrictions. They also asserted causes of action alleging that

the Association (among other things) made negligent misrepresentations,

committed fraud, and breached the Deed Restrictions by failing to recognize the

amended plat and approve their plans, and they sought damages and injunctive

relief. Finally, they sought damages and injunctive relief and requested their

attorneys’ fees under both Chapter 38 of the Civil Practice and Remedies Code and

section 5.006 of the Property Code.10 The trial court rejected both statutes as a

basis for the recovery of attorney’s fees and raised the possibility of other theories

that would allow plaintiffs to recover their fees.

Plaintiffs then sought and were granted leave to file a trial amendment

seeking a declaratory judgment that their plans complied with the amended plat

and the Deed Restrictions. In seeking leave near the end of their case, plaintiffs’

counsel stated:

[I]f the Court is of the opinion that Chapter 38 and the Property Code

do not lend [themselves] to attorney’s fees as presented, then we

would ask for a trial amendment in order to assert it as a declaratory

judgment action. . . . We don’t have any new evidence, everything has

been presented, it’s just as the evidence presented I think that supports

it that way if the Court feels it’s more appropriate.

Later, in response to the Association’s objection, plaintiffs’ counsel reiterated that

although they “still think that Property Code 5.006 and Chapter 38 . . . [are]

applicable, recognizing the discussions we’ve had with the Court we think that it

could also be framed in a declaratory judgment manner without any additional

evidence, without anything else . . . .” After the trial court granted leave, plaintiffs

10

Plaintiffs challenge the trial court’s rejection of these contentions in their cross-appeal,

which we address below.

29

filed their trial amendment, which stated: “The Plaintiffs heretofore have sought

attorneys’ fees under [section 5.006 of the Property Code and Chapter 38 of the

Civil Practice and Remedies Code]. As an alternative theory of a claim for

attorneys’ fees, Plaintiffs make claim in this supplemental pleading under Texas

Uniform Declaratory Judgments Act.”

On this record, we hold that plaintiffs sought the trial amendment solely for

the purpose of obtaining attorneys’ fees. For this reason alone, the trial court

abused its discretion when it awarded plaintiffs their fees under the Declaratory

Judgments Act. Kenneth Leventhal & Co., 978 S.W.2d at 258; see also City of

Carrollton, 308 S.W.3d at 454.

C. The declarations duplicate issues already before the trial court. 11

A party also may not use a declaratory judgment action to seek the same

relief afforded under another of its causes of action in order to obtain attorney’s

fees. City of Houston v. Texan Land & Cattle Co., 138 SW3d 382, 392 (Tex.

App.—Houston [14th Dist.] 2004, no pet.). Thus, if the declarations obtained in

the judgment “merely duplicated issues already before the trial court,” the party

may not recover fees. MBM Fin. Corp., 292 S.W.3d at 671; see Anderson v. New

Property Owners’ Ass’n of Newport, Inc., 122 S.W.3d 378, 390–91 (Tex. App.—

Texarkana 2003, pet. denied) (holding property owner not entitled to award of

attorney’s fees under Declaratory Judgments Act because his declaratory judgment

counterclaim did not present any issues beyond the homeowners’ association’s

cause of action).

These principles confirm that the Declaratory Judgments Act cannot support

the fee awards in this case because the declarations duplicated issues already

11

Chief Justice Frost does not join this Section V.C., which is the opinion of only Justice

Busby.

30

before the trial court in plaintiffs’ live pleadings. Each of the causes of action and

arbitrary or capricious acts alleged by plaintiffs turned on the same two questions:

(1) do the Deed Restrictions permit the Feldmans to expand their home; and (2) do

they allow the Trustee to use or sell the resulting remainder of Tilbury II as a

single-family residence? With respect to their claim that the Association breached

the Deed Restrictions, plaintiffs sought not only damages but also an injunction

based on the amended plat. The requested injunction would have directed the

Association to approve the plans as submitted for both lots, and to cease and desist

from restricting the combination of Tilbury I and II and the sale of the reconfigured

Tilbury II as a separate and distinct residence.

The three paragraphs of the declaratory judgment address the very same

issues regarding plaintiffs’ compliance with the Deed Restrictions. The first

paragraph validates the amended plat and declares that Tilbury I and Tilbury II are

separate and distinct lots presently in compliance with the Deed Restrictions. The

second paragraph bolsters these declarations with a further declaration that, based

on past conduct by the Association, the Association had waived and is estopped

from tearing down Tilbury II or asserting that Tilbury II is not a separate and

distinct lot. Finally, the third paragraph again declares that Tilbury I and Tilbury II

are separate lots that could be remodeled or replaced subject to compliance with

the current Deed Restrictions’ regulations on matters such as building materials,

color, and location relative to the setback lines.

Plaintiffs contend the declaratory judgment does not duplicate their pre-

existing pleadings because, in their view, these declarations deal with future rights.

As explained above, however, the declarations focus on present compliance with

the Deed Restrictions. Moreover, to the extent these declarations have future

operation, they duplicate the relief plaintiffs sought by injunction. See Tex. A&M

31

Univ. Sys. v. Luxemburg, 93 S.W.3d 410, 425–26 (Tex. App.—Houston [14th

Dist.] 2002, pet denied) (holding plaintiff had no right to recover attorney’s fees

under Declaratory Judgments Act because declarations “requested no greater or

different relief” than claim for injunctive relief for constitutional violation).

Plaintiffs also cite cases addressing the propriety of obtaining declaratory

relief generally. 12 But none of those cases support the contention that an award of

attorney’s fees is appropriate when, as here, the declaratory judgment action (1)

duplicates pending claims for affirmative relief, and (2) is used as a vehicle for the

recovery of otherwise unrecoverable attorney’s fees.

Finally, plaintiffs’ argument that the declaratory relief addresses matters in

addition to those raised in their pre-existing pleadings directly contradicts their

representations in support of their trial amendment. Plaintiffs represented to the

trial court that their request for declaratory relief required no new evidence and

was sufficiently similar to their pending causes of action to avoid surprise or

prejudice to the Association. They also acknowledged during oral argument before

this Court that the same legal reasoning applies to their declaratory judgment and

12

See BHP Petroleum Co. v. Millard, 800 S.W.2d 838, 840–41 (Tex. 1990) (holding trial

court’s refusal to dismiss entire lawsuit following plaintiff’s non-suit was proper because

defendant’s declaratory judgment counterclaim addressed matters not raised in the plaintiff’s

original claim); Funes v. Villatoro, 352 S.W.3d 200, 216–17 (Tex. App.—Houston [14th Dist.]

2011, pet. denied) (reversing and remanding for determination of attorney’s fees under the

Declaratory Judgments Act after rejecting contentions that the declaratory judgment action was

duplicative of plaintiffs’ tort claims and brought solely as a vehicle to recover attorney’s fees);

Guniganti v. Kalvakuntla, 346 S.W.3d 242, 251–53 (Tex. App.—Houston [14th Dist.] 2011, no

pet.) (holding trial court did not abuse its discretion when it awarded attorney’s fees because the

declaratory relief action addressed validity of note and was not used as a mere ploy to recover

attorney’s fees); see also CareFlite v. Rural Hill Emergency Med. Servs., Inc., 418 S.W.3d 132,

142–43 (Tex. App.—Eastland 2012, no pet.) (summarily affirming award of attorney’s fees

under the Declaratory Judgments Act in lawsuit brought pursuant to statute authorizing recovery

of attorney’s fees); Indian Beach Prop. Owners Ass’n v. Linden, 222 S.W.3d 682, 702, 705–07

(Tex. App.—Houston [1st Dist.] 2007, no pet.) (holding award of attorney’s fees to defendants

under the Declaratory Judgments Act was proper because recovery of fees was separately

authorized by section 5.006(a) of the Texas Property Code).

32

to the questions submitted to the jury. Plaintiffs cannot have it both ways. If a trial

amendment to add a request for declaratory relief is not prejudicial or a surprise

because it involves the same legal reasoning and evidence and does not change the

nature of the case, then it cannot at the same time serve as a non-duplicative basis

for the recovery of attorney’s fees.13

For these reasons, this case falls squarely within the rule that a party cannot

use the Declaratory Judgments Act as a vehicle to obtain otherwise impermissible

attorneys’ fees. MBM Fin. Corp., 292 S.W.3d at 669 (recognizing that a party can

obtain declaratory relief but still not be entitled to an award of attorney’s fees

under the Declaratory Judgments Act). Because the declaratory relief awarded by

the trial court duplicates the claims already before the court, and was added solely

as a vehicle to allow plaintiffs to recover otherwise impermissible attorneys’ fees,

the trial court abused its discretion when it awarded plaintiffs their fees under the

Declaratory Judgments Act. Id. at 671; City of Carrollton, 308 S.W.3d at 454–55.

D. Conclusion

We sustain the Association’s fourth issue on appeal and hold that the

Declaratory Judgments Act cannot support the awards of attorneys’ fees. Having

sustained that issue, as well as the Association’s first issue challenging the liability

findings and damage awards, we need not address the Association’s fifth and

seventh issues regarding liability and damages.

13

This conclusion does not mean that requests for declaratory relief added through a trial

amendment can never support an award of attorney’s fees. Rather, on this record, plaintiffs’

specific representations in support of the trial amendment confirm the duplicative nature of the

particular declaratory relief they sought.

33

Plaintiffs’ Cross-Appeal

We turn now to the cross-appeal filed jointly by the Feldmans and the

Trustee. Their cross-appeal raises three issues, which we address below.

VI. The trial court did not err in rejecting plaintiffs’ request for attorneys’

fees under section 5.006 of the Property Code and section 38.001 of the

Civil Practice and Remedies Code.

In their first cross-issue, plaintiffs contend the trial court erred when it

refused to award them attorneys’ fees under section 5.006 of the Texas Property

Code and section 38.001 of the Civil Practice and Remedies Code. Plaintiffs argue

they established that the Association breached paragraphs 3 and 4 of the Deed

Restrictions, pointing to the trial court’s declaratory judgment and the jury’s

finding in response to Question 1 that the Association’s denial of their plans was

arbitrary or capricious. In response, the Association contends neither statute

supports an award of attorneys’ fees on these facts. We agree with the

Association.

A. Standard of review

The availability of attorney’s fees under a particular statute is a question of

law. Holland v. Wal-Mart Stores, Inc., 1 S.W.3d 91, 94 (Tex. 1999). Therefore,

we review this issue de novo. Headington Oil Co., L.P. v. White, 287 S.W.3d 204,

215 (Tex. App.—Houston [14th Dist.] 2009, no pet.). We construe statutory

provisions to ascertain and effectuate legislative intent, and we ascertain that intent

by first looking to the plain and common meaning of the statute’s words. Tex.

Mut. Ins. Co. v. Sonic Sys. Int’l, Inc., 214 S.W.3d 469, 476 (Tex. App.—Houston

[14th Dist.] 2006, pet. denied). We must also view a statute’s terms in context and

give them full effect. Id.

In construing a restrictive covenant, a court’s primary task is to determine

34

the intent of the framers of the covenant. Sanchez v. Southampton Civic Club, Inc.,

367 S.W.3d 429, 434 (Tex. App.—Houston [14th Dist.] 2012, no pet.). When, as

here, the restrictive covenants are unambiguous, we construe them as a question of

law. Id. Courts may not enlarge, extend, stretch, or change the words of a deed

restriction by construction. Weise v. Heathlake Cmty. Ass’n, 384 S.W.3d 395, 401

(Tex. App.—Houston [14th Dist.] 2012, no pet.).

B. Section 5.006 of the Property Code does not authorize a fee

award.

Section 5.006 provides that in “an action based on breach of a restrictive

covenant, . . . the court shall allow to a prevailing party who asserted the action

reasonable attorney’s fees . . . .” Tex. Prop. Code Ann. § 5.006. Only a party who

successfully prosecutes a claim alleging a breach of a restrictive covenant is

entitled to an award of attorney’s fees under section 5.006. Meyerland Cmty.

Improvement Ass’n v. Belilove, 624 S.W.2d 620, 620–21 (Tex. Civ. App.—

Houston [14th Dist.] 1981, writ ref. n.r.e.).

Plaintiffs are not entitled to recover their attorneys’ fees under section 5.006

because they have not successfully prosecuted a claim alleging a breach of a

restrictive covenant. See Anderson, 122 S.W.3d at 390. There is no liability

finding by the jury or declaration by the trial court that the Association breached a

restrictive covenant found in the Deed Restrictions.14 The trial court’s declaratory

judgment and the jury’s finding that the Association’s “denial of any of the

Feldmans’ and/or the Trustee’s plans was arbitrary or capricious” do not establish

14

Plaintiffs have not argued on appeal that the trial court erred when it refused to submit

claims for breach of restrictive covenant and breach of contract to the jury. But, even if plaintiffs

had made this argument on appeal, and we assumed the trial court erred when it refused to

submit those claims to the jury, the result would be the same because we conclude that

Paragraphs 3 and 4 of the Deed Restrictions are drafted in such a manner that the Association

cannot violate them by simply denying a homeowner’s plans.

35

that the Association breached either paragraph 3 or paragraph 4 of the Deed

Restrictions.

Paragraphs 3 and 4 of the Deed Restrictions limit the actions that a

Tanglewood homeowner can take; they do not limit the actions that the

Association can take. See Weise, 384 S.W.3d at 401 (stating that a court may not

insert additional language into deed restrictions in the guise of construing them).

As a result, we conclude that paragraphs 3 and 4 of the Deed Restrictions are

drafted in such a manner that the Association does not violate them by denying a

homeowner’s plans.

Our sister court’s opinion in Duncan v. Dominion Estates Homeowners

Association, No. 01-09-01086-CV, 2011 WL 3505298, at *5–8 (Tex. App.—

Houston [1st Dist.] Aug. 11, 2011, no pet.) (mem. op.), on which plaintiffs rely, is

consistent with this analysis. In Duncan, the homeowners alleged and proved that

the homeowners association took actions in violation of specific provisions of the

restrictive covenants that imposed limits on the association. Id. For example, the

association charged a special assessment to the Duncans without first obtaining the

vote of a majority of the homeowners, and it imposed a fine without giving the

required notice of the alleged restrictive covenant violation or allowing the

Duncans a reasonable amount of time to respond to the allegation, as required by

the restrictive covenants. Id. Here, in contrast, plaintiffs have not alleged or

established that the Association took any action that violated a provision of the

Deed Restrictions. Accordingly, they cannot recover their attorneys’ fees under

section 5.006 for “breach of a restrictive covenant” by the Association.

C. Section 38.001 of the Civil Practice and Remedies Code does not

authorize a fee award.

Plaintiffs also argue they are entitled to fees under section 38.001 of the

36

Civil Practice and Remedies Code. According to plaintiffs, because restrictive

covenants are construed like contracts, a successful claim for a violation of a

restrictive covenant is a contract claim subject to Chapter 38. We disagree that

Chapter 38 authorizes an award of attorneys’ fees to plaintiffs in this case.

The majority of the cases cited by plaintiffs stand for the unremarkable

proposition that deed restrictions are construed like contracts. E.g., Cypress Nw.

Assocs. v. Wayne Duddlesten, Ltd., No. 01-05-00827-CV, 2008 WL 457847, at *5

(Tex. App.—Houston [1st Dist.] Feb. 21, 2008, pet. denied) (mem. op.). The same

may be said of many types of written documents, from deeds to easements to

consent judgments, but that does not mean these documents always meet the

essential elements of a valid contract or that non-compliance with their terms is

always a breach of contract that will support an award of attorney’s fees. With a

single exception, plaintiffs’ cited cases do not stand for the proposition that simply

construing deed restrictions like contracts causes them to fall within Chapter 38. 15

The plaintiffs do identify one case that cites Chapter 38 as authority to award

attorney’s fees for breach of a restrictive covenant to pay assessments, but it is

distinguishable. Candlewood Creek Neighborhood Ass’n v. Geshaye, No. 05-11-

15

See Pilarcik, 966 S.W.2d at 478 (“The restrictive covenants are subject to the general

rules of contract construction.”); Curlee v. Walker, 244 S.W. 497, 498–99 (Tex. 1922) (held,

after recognizing parties’ right to contract with relation to property as they see fit and with no

mention of attorney’s fees, that the trial court erred when it dissolved a temporary injunction

preventing an owner from building in violation of the restrictive covenants); Sanchez, 367

S.W.3d at 436 (affirming award of attorney’s fees under Property Code section 5.006 after

recognizing that restrictive covenants are construed “like any contract”); see also Duncan, 2011

WL 3505298, at *6 (same); Ski Masters of Tex., L.L.C. v. Heinemeyer, 269 S.W.3d 662, 667, 674

(Tex. App.—San Antonio 2008, no pet.) (summarily affirming award of attorney’s fees after

stating that appellate courts apply the general rules of contract construction when construing

restrictive covenants); Scoville v. SpringPark Homeowner’s Ass’n, 784 S.W.2d 498, 502, 505

(Tex. App.—Dallas 1990, writ denied) (affirming award of attorney’s fees under the Declaratory

Judgments Act after recognizing that the rules of contract construction apply to restrictive

covenants).

37

00380-CV, 2012 WL 3135721, at *2 (Tex. App.—Dallas August 2, 2012, no pet.)

(mem. op.) (remanding for determination of fees “consistent with the evidence

presented”). Although the opinion’s recitation of the facts is meager, it suggests

that the homeowner in that case had an agreement with the homeowners’

association to pay the assessments and to provide a lien on her property as security.

Parties are of course free to include compliance with a restrictive covenant as a

term of their contract, but the evidence shows no contract for compliance here.

Moreover, neither the jury nor the trial court found a breach of contract that

could support plaintiffs’ award of attorneys’ fees. See Tex. Civ. Prac. & Rem.

Code Ann. § 38.001(8) (providing that a person may recover attorney’s fees in

addition to the amount of a valid claim and costs, if the claim is for an oral or

written contract); Mustang Pipeline Co. v. Driver Pipeline Co., 134 S.W.3d 195,

201 (Tex. 2004) (stating that section 38.001’s most basic requirement is that the

party seeking to recover attorney’s fees must first prevail on a valid contract

claim). As discussed above, paragraphs 3 and 4 of the Deed Restrictions are

drafted in such a manner that the Association does not breach them by wrongfully

denying a homeowner’s construction plans. Therefore, even if Chapter 38

authorized an award of attorney’s fees for breaching deed restrictions, it cannot

support the award of attorneys’ fees here because we already have determined that

there is no finding the Association breached the Deed Restrictions.

Having addressed and rejected each argument raised in plaintiffs’ first cross-

issue, we overrule that cross-issue.

38

VII. The trial court did not err when it rejected plaintiffs’ request for civil

damages under section 202.004(c) of the Property Code.

In their second cross-issue on appeal, plaintiffs assert the trial court erred

when it refused to assess civil damages against the Association pursuant to section

202.004(c) of the Property Code. The Association contends that under the plain

language of the statute, plaintiffs may not recover civil damages. We agree with

the Association.

A. Standard of review and applicable law

When construing a statute, a reviewing court looks to the plain and common

meaning of the statute’s terms. Tex. Dept. of Transp. v. City of Sunset Valley, 146

S.W.3d 637, 642 (Tex. 2004). We read a statute as a whole and not just isolated

portions. Id. “If the statutory language is unambiguous, we must interpret it

according to its terms, giving meaning to the language consistent with other

provisions in the statute.” Id.; see also Tex. Gov’t Code Ann. § 311.011(a) (West

2013) (“Words and phrases shall be read in context and construed according to the

rules of grammar and common usage.”).

Section 202.004(b) of the Property Code provides that “[a] property owners’

association or other representative designated by an owner of real property may

initiate, defend, or intervene in litigation . . . affecting the enforcement of a

restrictive covenant or the protection, preservation, or operation of the property

covered by the dedicatory instrument.” Tex. Prop. Code Ann. § 202.004(b). It

also provides in subsection (c) that “[a] court may assess civil damages for the

violation of a restrictive covenant” of up to $200 per day. Id. § 202.004(c).

B. Plaintiffs may not recover civil damages under section 202.004(c)

of the Property Code.

Section 202.004(b) confers a statutory right to sue for enforcement of a

39

restrictive covenant only on “a property owners’ association or other representative

designated by an owner of real property,” indicating that only those parties may

recover statutory damages for the violation of a covenant under subsection (c).

Hawkins v. Walker, 233 S.W.3d 380, 389 (Tex. App.—Fort Worth 2007, no pet. ).

Courts considering this issue have held that an individual homeowner who is not a

designated representative may not recover civil damages under section 202.004(c).

Id.; see also Jacks v. Bobo, No. 12-07-00420-CV, 2009 WL 2356277, at *7 (Tex.

App.—Tyler July 31, 2009, pet. denied) (“When subsection 202.004(c) is

considered in the context of the statute’s other provisions, it is evident that the

legislature intended the civil damages provided in the subsection to be available

only to the entities expressly named in the statute and to no others.”). We agree

with these holdings.

Plaintiffs do not contend they are a property owners’ association, and there

is no evidence they were designated by the Tanglewood Section 8 homeowners to

file suit on their behalf. Instead, plaintiffs contend the Deed Restrictions authorize

them to file suit to enforce the restrictions contained therein, and therefore they

may collect civil damages under subsection 202.004(c). When a right is conferred

by statute, however, the party seeking to exercise that right must show it fits within

the language used in the statute. Everett v. TK-Taito, L.L.C., 178 S.W.3d 844, 851

(Tex. App.—Fort Worth 2005, no pet.). Plaintiffs have not done so here. Because

they are not a homeowners’ association or designated representatives of the other

homeowners, we hold they may not recover civil damages under section

202.004(c) of the Property Code. Hawkins, 233 S.W.3d at 389–90.

In addition, as explained above, plaintiffs did not secure a finding that the

Association violated the Deed Restrictions. Such a finding is a necessary

prerequisite to assessing civil damages under subsection (c) “for the violation of a

40

restrictive covenant.” For these reasons, the trial court did not err when it refused

to assess civil damages against the Association under section 202.004(c) of the

Property Code. We overrule plaintiffs’ second cross-issue on appeal.

VIII. The trial court did not abuse its discretion when it rejected plaintiffs’

request for a permanent injunction enforcing the declaratory judgment.

In their third and final cross-issue, plaintiffs contend the trial court abused its

discretion when it denied their request for a permanent injunction enjoining the

Association from “disapproving, delaying the approval of, refusing to approve, or

denying approval of any plans and specifications as to Tilbury I and Tilbury II . . .

as to issues in this case submitted by or on behalf of the Feldmans or the Trustee

. . . in connection with any of the Feldmans or the Trustee’s . . . use or enjoyment

of their respective properties . . . .” In response, the Association contends the trial

court did not abuse its discretion because plaintiffs failed to establish their

entitlement to a permanent injunction. We agree with the Association.

A. Standard of review and applicable law

Section 37.011 of the Declaratory Judgments Act allows for “[f]urther relief

based on a declaratory judgment” upon a showing that the relief is “necessary or

proper.” Tex. Civ. Prac. & Rem. Code Ann. § 37.011. Ancillary injunctive relief

may be obtained when the evidence establishes that a defendant will not comply

with a declaratory judgment. Howell v. Tex. Workers’ Comp. Comm’n, 143

S.W.3d 416, 433 (Tex. App.—Austin 2004, pet. denied). The granting or denial of

a request for a permanent injunction is within the trial court’s sound discretion, and

a reviewing court’s inquiry is limited to the question whether the trial court abused

its discretion. See Lakeside Realty, Inc. v. Life Scape Homeowners Ass’n, 202

S.W.3d 186, 190 (Tex. App.—Tyler 2005, no pet.) (holding that abuse of

discretion is the proper standard of review for an order denying relief under section

41

37.011); see also Jim Rutherford Invs., Inc. v. Terramar Beach Cmty. Ass’n, 25

S.W.3d 845, 848 (Tex. App.—Houston [14th Dist.] 2000, pet. denied) (standard of

review for the granting or denial of a permanent injunction is abuse of discretion).

Generally, that discretion is abused and subject to reversal when the trial court

misinterprets or misapplies the law or acts arbitrarily or unreasonably. See Perry

Homes, 258 S.W.3d at 598 & n.102 (Tex. 2008); Downer, 701 S.W.2d at 241–42;

Butler v. Arrow Mirror & Glass, Inc., 51 S.W.3d 787, 791 (Tex. App.—Houston

[1st Dist.] 2001, no pet.).

Ordinarily, injunctive relief may be granted only 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 Invs., Inc., 25 S.W.3d at

849. These required elements change when the dispute concerns the enforcement

of restrictive covenants. Id. In such cases, the applicant is required to prove only

that the defendant intends to do an act that would breach the restrictive covenant.

Id. When the requested injunctive relief arises out of a declaratory judgment, a

presumption exists that a defendant will recognize and respect the rights declared

by a declaratory judgment and will comply with the judgment in carrying out its

duties. Howell, 143 S.W.3d at 433 (citing Valley Oil Co. v. City of Garland, 499

S.W.2d 333, 335–36 (Tex. Civ. App.—Dallas 1973, no writ)).

B. The court could conclude that plaintiffs failed to rebut the

presumption of compliance or show they lacked an adequate

remedy at law.

We already have determined there is no finding that the Association violated

a restrictive covenant when it refused to approve plaintiffs’ plans for Tilbury I and

Tilbury II. Therefore, to be entitled to a permanent injunction, plaintiffs had to

establish each of the ordinary elements for a permanent injunction, including the

requirement that they faced an imminent and irreparable risk of harm. See Jim

42

Rutherford Invs., Inc., 25 S.W.3d at 849. Plaintiffs have not pointed to any

evidence in the record that the Association intends to violate the declaratory

judgment’s requirements once the appellate process is complete, and our own

review of the record has revealed none.16 Because plaintiffs did not introduce

evidence rebutting the presumption that the Association would recognize, respect,

and comply with the trial court’s declaratory judgment once the appellate process

is complete, we hold the trial court acted within its discretion when it rejected their

request for a permanent injunction. See Howell, 143 S.W.3d at 432 (“Fear or

apprehension of the possibility of injury is not sufficient; the plaintiff must prove

that the defendant has attempted or intends to harm the plaintiff in the future.”).

The trial court also acted within its discretion in denying plaintiffs’ request

for a permanent injunction for a second, independent reason: plaintiffs did not

show they lacked an adequate legal remedy. Plaintiffs had the burden to establish

that they suffered an irreparable injury because they did not have an adequate

remedy at law. See Cardinal Health Staffing Network, Inc. v. Bowen, 106 S.W.3d

230, 235 (Tex. App.—Houston [1st Dist.] 2003, no pet.). An injury is irreparable

if it cannot be adequately remedied at law through monetary damages. Cytogenix,

Inc. v. Waldroff, 213 S.W.3d 479, 487 (Tex. App.—Houston [1st Dist.] 2006, pet.

denied).

Plaintiffs alleged that the Association’s refusal to approve their plans for

Tilbury I and Tilbury II harmed them in various ways, including: (1) a lost sale of

Tilbury II; (2) lost income because the Trustee was unable to rent Tilbury II; (3)

delay in the construction of the Feldmans’ home expansion and the loss of use of

16

Plaintiffs have not cited any authority addressing when a party must abide by a

declaratory judgment being challenged on appeal or risk being compelled to comply by way of a

permanent injunction. Cf. Valley Oil Co., 499 S.W.2d at 335–36 (affirming permanent

injunction granted after appellate mandate had been filed in the trial court).

43

portions of the home during that time period; and (4) the Trustee’s continuing

liability for the payment of property taxes and homeowners’ association fees for

Tilbury II. Plaintiffs presented evidence that placed a monetary value on each of

these alleged injuries. 17 Based on this evidence, we hold it was within the trial

court’s discretion to conclude that plaintiffs were not entitled to injunctive relief

because monetary damages could fully compensate them for any harm they may

have suffered as a result of the Association’s actions. See Schneider Nat’l

Carriers, Inc. v. Bates, 147 S.W.3d 264, 284 (Tex. 2004) (“If there is a legal

remedy (normally monetary damages), then a party cannot get an injunction, too.

Accordingly, awarding both an injunction and damages as to future effects would

constitute a double recovery.”).

Because plaintiffs have not established that the trial court abused its

discretion when it denied their request for a permanent injunction, we overrule

their third cross-issue on appeal.

CONCLUSION

Having sustained the Association’s first issue on appeal, we reverse the

portion of the trial court’s judgment awarding monetary damages to the Feldmans

and the Trustee, and we render judgment that they take nothing on their causes of

action seeking monetary damages. In addition, because we have sustained the

Association’s fourth issue on appeal and overruled plaintiffs’ first cross-issue on

appeal, we reverse the portion of the trial court’s judgment awarding attorneys’

fees to plaintiffs and render judgment that they take nothing on their requests for

attorneys’ fees. The remaining portions of the trial court’s judgment challenged by

17

In fact, the trial court’s judgment included a per-diem award of future damages to the

Trustee that would continue to accrue until all appeals were exhausted. Although we have

reversed the damage awards because plaintiffs failed to secure liability findings to support them,

this award demonstrates that plaintiffs had an adequate remedy at law.

44

the parties are affirmed.

/s/ J. Brett Busby

Justice

Panel consists of Chief Justice Kem Thompson Frost, Justice Jeffrey Brown, and

Justice J. Brett Busby. (Justice Jeffrey Brown not participating).18

18

After oral argument but before the court issued this opinion, Justice Jeffrey Brown was

appointed to the Supreme Court of Texas and is no longer a justice on the Fourteenth Court of

Appeals. The two remaining justices have decided the case. See Tex. R. App. P. 41.1(b).

45