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

5
(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