In the
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-23-00080-CV
193 DORIS TRUST, ANDREW HUDSON, AND ERIN HUDSON, Appellants
V.
AARON HANSEN, JUANITA HANSEN, WILLIAM B. PATTERSON, IV,
BEN PURCELL, CANDACE POOLE, JOHN CARSON, LIZ CARSON, TERRY HAINLEN,
THOMAS L. TERRELL, AND PAMELA A. TERRELL, Appellees
On Appeal from the County Court at Law
Kerr County, Texas
Trial Court No. 20684C
Before Stevens, C.J., van Cleef and Rambin, JJ.
Memorandum Opinion by Chief Justice Stevens
MEMORANDUM OPINION
This is an appeal from the trial court’s final judgment, which reinstated a prior summary
judgment and denied all remaining relief requested. On appeal, the 193 Doris Trust and its
trustees, Andrew Hudson and Erin Hudson, argue that the trial court erred by reinstating the prior
summary judgment.1 They also argue that the trial court’s summary judgment order is void for
vagueness and is overbroad.
We find that the trial court’s reinstatement of the prior summary judgment order was
proper. We also find that the order is not void for vagueness or ambiguity. Even so, we find that
a portion of the order is overbroad, reverse that portion of the order, and remand the matter to the
trial court for redrafting. We affirm the remainder of the trial court’s judgment.
I. Factual and Procedural History
In 2017, the 193 Doris Trust and its trustees, Andrew Hudson and Erin Hudson
(collectively Appellants), purchased a five-acre property located at 193 Doris Drive in Kerr
County, Texas (the Property). According to neighboring property owners, Aaron Hansen,
Juanita Hansen, William B. Patterson, IV,2 Ben Purcell, Candace Poole, John Carson, Liz
Carson, Terry Hainlen, Thomas L. Terrell, and Pamela A. Terrell (collectively Residents), the
Property was subject to a covenant requiring the Property to be “used solely for residential
1
Originally appealed to the Fourth Court of Appeals, this case was transferred to this Court by the Texas Supreme
Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (Supp.). We follow the
precedent of the Fourth Court of Appeals in deciding this case. See TEX. R. APP. P. 41.3.
2
Patterson’s middle initial is “B.” in the vast majority of the pleadings in this case. While the initial appears to have
inadvertently been changed to “V.” on some pleadings, including the judgment on appeal, we use the initial “B.”
2
purposes.” The covenant also specified that “all structures used or designed for use as a
dwelling” had to be at least 1,000 square feet and “permanently attached to the land.”
After purchasing the Property, the Appellants advertised that the public could rent it for
wedding parties. In September 2020, the Appellants also placed a shipping container on the
Property that was converted into a living space but was less than 350 square feet. In October, the
Residents sent a written notice to the Appellants informing them that their “short-term rentals
and special events” and the use of the shipping containers violated restrictive covenants and had
produced “excessive late-night noise.” In December, the Appellants moved two more shipping
container living spaces “less than 200 square feet” onto the Property.
The Residents, whose properties were all subject to the same restrictive covenants, sued
the Appellants to enforce the covenants and to obtain injunctions requiring the removal of the
shipping containers and “prohibiting future non-residential rentals and the addition of further
non-conforming residences.” In their December 2020 response, the Appellants raised defenses
of waiver and abandonment.
The Residents filed a traditional motion for summary judgment on their claims. In
support, they attached (1) the Property’s deed, (2) the restrictive covenants, (3) invoices for the
shipping containers showing their sizes, (4) listings from VRBO, AirBnB, and Expedia showing
the Property available for rent, and (5) the affidavit of resident Aaron Hansen.3 Hansen’s
3
The specific language of the restrictive covenant stated that the “[P]roperty shall be restricted in the following
fashion”:
3
affidavit stated that he “personally observed the use of the [P]roperty by various groups for short
terms beginning in 2017” and that “guests staying at the Property were regularly loud and
disruptive,” which led to disturbances that were responded to by the Kerr County Sheriff’s
Department “on multiple occasions.” Hansen’s affidavit also said that (1) “a 40-foot shipping
container . . . was delivered and placed on the [P]roperty” on September 27, 2020, (2) “an
additional 20-foot shipping container . . . was delivered to the [P]roperty” on December 6; and
(3) “a third shipping container . . . was delivered . . . to [the P]roperty” on December 22. The
Residents also attached the Appellants’ responses to requests for admissions. Those responses
showed that Appellants admitted that the shipping containers were “used or intended for use as
short term rentals” but were “less than one thousand square feet.” The Appellants also admitted
that Erin Hudson said that “she had five containers coming to the [P]roperty.”
The Appellants admitted in their summary judgment response that the Property was
subject to the restrictive covenants but was advertised for short-term rental. They also admitted
that a forty-foot shipping container and two twenty-foot containers were placed on the property.
Even so, the Appellants argued that the shipping containers were not “‘dwellings’ or ‘designed
as dwellings’ as contemplated by the restrictive covenants,” because they were “not designed as
permanent living structures or single-family dwellings,” but were instead to be used as short-
term rentals “appurtenant to the rights of Defendants’ to use and enjoy their property.” As a
1. The same shall be used solely for residential purposes.
2. All structures used or designed for use as a dwelling shall be permanently
attached to the land, and shall contain not less than One Thousand (1,000) square feet of floor
space, exclusive of garage and porches.
3. Every such dwelling shall be equipped with sanitary indoor plumbing, and
provided with underground sewage disposal.
4
result, the Appellants argued that the unambiguous language of the covenants did not restrict
them from renting out the Property.
After a hearing, the trial court, on September 2, 2021, rejected the Appellants’ arguments
and granted the Residents’ motion for summary judgment (Summary Judgment Order).
Accordingly, the trial court ordered the shipping containers removed from the Property,
prohibited the Appellants from using or advertising the Property for special events or other non-
residential uses,” and awarded attorney fees to the Residents.
On October 1, 2021, the Appellants filed a motion for new trial and motion for
clarification and reformation because the terms “dwelling,” “special events,” “advertising,”
“residential uses,” and “non-residential uses” were too vague to be enforced and were broad
enough to encompass private gatherings hosted by the Appellants, which they had the right to
enjoy as property owners. After a hearing, the trial court partially granted the motion for new
trial “but only to the extent necessary to determine the applicability of waiver or abandonment as
to the Restrictive Covenants.” Specifically, the order vacated the Summary Judgment Order and
stated,
The Court will allow the reopening of discovery for the Defendants to conduct
discovery and investigate the structures and their uses throughout the properties
burdened by the Restrictive Covenants, to ascertain if and to what extent other
properties burdened by the Restrictive Covenants have structures thereon that are
1,000 square feet or less which are being “used or designed for use as a dwelling”
or not used “solely for residential purposes” such that those particular restrictions
would no longer be enforceable against the Defendants’ structures and use of the
property.
In sum, it appeared that the motion for new trial was granted to allow the Appellants to
conduct discovery on their affirmative defense. By January 2022, Aaron Hansen, Juanita
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Hansen, William B. Patterson, IV, Ben Purcell, Candace Poole, Liz Carson, Thomas L. Terrell,
and Pamela A. Terrell nonsuited their claims against the Appellants, leaving John Carson and
Terry Hainlen (Appellees) as plaintiffs.
Because over a year had passed without activity, the trial court set the case on the
dismissal docket and noticed a hearing for May 19, 2023. At the hearing, the Appellants’
counsel apologized that, since he had taken over the case in October 2021, he “had four deaths in
the family” and had “just gotten way behind.” After the trial court learned that counsel had
asked to inspect several properties on the day of the hearing, it decided to “retain [the] case for
30 days.” After that time had passed, on June 15, 2023, Appellees’ counsel informed the trial
court that “[s]ince the hearing, there [had] been no follow up and no discovery conducted or
requested.” Counsel further stated in its letter,
If the case is simply dismissed for want of prosecution, I believe there
could be some confusion about the final status of the case. In order to clarify the
record, I am submitting a draft Order that Vacates the Order Granting a New Trial
(in part), and confirms the Order Granting Summary Judgment, for your
consideration.
The next day, Appellees’ counsel responded that he could not do anything to schedule property
inspections of properties belonging to the Residents and that it was his expectation that
Appellees’ “counsel would contact his clients (and their neighbors) to arrange for potential dates
during which the properties could be inspected.”
On June 16, the trial court entered an order reinstating the Summary Judgment Order
(Reinstatement Order). The Reinstatement Order stated,
Having found that Defendants have not timely, or diligently, pursued the
limited issue of alleged waiver of, or abandonment of, the Restrictive Covenants,
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the Court hereby vacates the Order of the Court Granting Defendants’ Motion for
New Trial (in part) and Order Granting Defendants’ Motion for Clarification and
Reformation of Order Granting Plaintiffs’ Traditional Motion for Summary
Judgment.
II. Reinstatement of the Summary Judgment Order Was Proper
In their first point error, the Appellants argue that the trial court erred by entering the
Reinstatement Order for three reasons. They complain of the procedure used by the trial court to
reinstate the Summary Judgment Order, contend that the lack of a hearing violated their due-
process rights, and believe that the Reinstatement Order constituted death-penalty sanctions. Our
review of the procedural history shows that the trial court employed the proper procedural
mechanisms, that Appellants were afforded their day in court, and that no death-penalty
sanctions were imposed.
The procedural mechanism employed by the trial court to reinstate the Summary
Judgment Order is explained in In re Baylor Medical Center at Garland, 280 S.W.3d 227 (Tex.
2008) (orig. proceeding). There, the Texas Supreme Court reiterated, “A trial court’s plenary
jurisdiction gives it not only the authority but the responsibility to review any pre-trial order
upon proper motion.” Id. at 231 (quoting Downer v. Aquamarine Operators, Inc., 701 S.W.2d
238, 241 (Tex. 1985)). As a result, the trial court can reconsider a ruling granting a new trial at
any time while the case is pending. Id. at 230–31, 232; see Guerrero v. Cardenas, No. 01-20-
00045-CV, 2022 WL 210152, at *6 (Tex. App.—Houston [1st Dist.] Jan. 25, 2022, pet. denied)
(mem. op.). Should it choose to do so, the trial court is free to enter an “order granting
reinstatement” of a prior judgment. In re Baylor Med. Ctr. at Garland, 280 S.W.3d at 231; see
Guerrero, 2022 WL 210152, at *6 (“[T]he trial court had the authority to reconsider and vacate
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the new trial order and to reinstate the final judgment at any time before judgment was
entered.”). Because the trial court employed the procedural mechanism blessed by the Texas
Supreme Court, we overrule the Appellants’ complaint about it.
As for Appellants’ due-process complaint, while the trial court has the “power to control
its docket,” “[b]efore a trial court may dismiss pursuant to either Rule 165a or its inherent
authority, the party subject to dismissal must be provided with notice and an opportunity to be
heard.” Saldana v. Hinojosa, 517 S.W.3d 239, 241 (Tex. App.—San Antonio 2017, no pet.).
The record shows that, on November 5, 2021, the trial court initially set aside its Summary
Judgment Order to allow the Appellants to conduct limited discovery on their affirmative
defenses of waiver or abandonment. After a considerable amount of time passed without activity
on its docket, the trial court sent notice of a May 19, 2023, dismissal hearing. The Appellants
appeared at the hearing and argued that they needed more time for discovery. The trial court
ruled, “I’m going to retain your case for 30 days. Okay? So everything needs to be done in 30
days.” Because the discovery was not completed within the thirty days, the trial court found that
the Appellants had “not timely, or diligently, pursued” their affirmative defenses. As a result,
the trial court denied the relief sought by the Appellants, vacated prior orders granting their
motions for new trial and for clarification and reformation, and reinstated the Summary
Judgment Order.
We find that the Appellants had the opportunity to be heard during the May 19 hearing
and were given a deadline of thirty days to show diligent prosecution of their affirmative defense
but failed to do so. Although they now complain that they should have been afforded another
8
hearing, they have provided no authority holding that another hearing was required before
dismissing their affirmative defenses and entering the Reinstatement Order.4 Further, although
they would have been automatically entitled to a hearing had they filed a motion to reinstate the
case under Rule 165a, they failed to do so. See TEX. R. CIV. P. 165a(3); Thordson v. City of
Houston, 815 S.W.2d 550, 550 (Tex. 1991) (per curiam). As a result, we find no due-process
violation.
As for their complaint that the trial court imposed death-penalty sanctions, we find the
complaint meritless. Nothing indicates that the trial court sanctioned the Appellants; it dismissed
their defenses for want of prosecution. See Hernandez v. ISE, Inc., No. 04-06-00888-CV, 2008
WL 80005, at *4 (Tex. App.—San Antonio Jan. 9, 2008, no pet.) (mem. op.) (explaining that a
dismissal for want of prosecution is not a sanction); see also Patton v. Russell, No. 04-99-00221-
CV, 2000 WL 330315, at *2 (Tex. App.—San Antonio Mar. 29, 2000, pet. denied) (not
designated for publication) (citing MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex. 1997) (per
curiam)) (finding that the trial court’s dismissal for want of prosecution was not a sanction).
We have overruled the challenges raised by the Appellants to the Reinstatement Order.
As a result, we overrule their first point of error.5
4
Appellants argue that the trial court was required to enter a new judgment. Here, the new judgment was the
Reinstatement Order.
5
In their reply brief, Appellants raise additional arguments not presented in their opening brief. Appellees were not
able to respond to these new arguments, and as a result, we will not consider them. See Diamond Env’t Mgmt., L.P.
v. City of San Antonio, No. 04-21-00058-CV, 2022 WL 4359085, at *5 (Tex. App.—San Antonio Sept. 21, 2022,
pet. denied) (mem. op.).
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III. The Trial Court’s Judgment Is Not Void
In their second point, the Appellants argue that the Summary Judgment Order was void
because it was “overbroad, ambiguous and/or vague.”6 “[W]e enforce unambiguous orders
literally.” Kourosh Hemyari v. Stephens, 355 S.W.3d 623, 626 (Tex. 2011) (per curiam) (citing
Reiss v. Reiss, 118 S.W.3d 439, 441–42 (Tex. 2003)). But “even a ‘literal’ interpretation of an
unambiguous order requires us to look at the order as a whole.” Id. (citing Reiss, 118 S.W.3d at
441). “If possible, we construe an order in a way that gives each provision meaning.” Id. (citing
Gulf Ins. Co. v. Burns Motors, Inc., 22 S.W.3d 417, 422 (Tex. 2000)).
The complained-of portion of the Summary Judgment Order reads:
It is further
ORDERED, ADJUDGED, and DECREED that Defendants must
remove the shipping containers installed on the property located at 193 Doris
Drive, Kerrville, Texas, 78028 within 15 days of this order because the containers
violate the restrictive covenants. It is further
ORDERED, ADJUDGED, and DECREED that Defendants are
prohibited from installing on the property located at 193 Doris Drive, Kerrville,
Texas, 78028 any shipping containers, or other dwellings under 1,000 square feet,
because these structures violate the restrictive covenants. It is further
ORDERED, ADJUDGED, and DECREED that Defendants are
prohibited from using or advertising the property located at 193 Doris Drive,
Kerrville, Texas, 78028 for special events or other non-residential uses. . . .
In particular, the Appellants argue that the terms “dwelling,” “residential use,” “non-residential”
rentals, “non-residential use,” “advertising,” and “special events” were never defined. As a
result, they claim, “the Order is too vague and ambiguous to be enforceable.”
6
The Appellants do not argue in their opening brief that the trial court erred by granting the summary judgment.
10
It is true that “for a person to be held in contempt for disobeying a court decree, the
decree must spell out the details of compliance in clear, specific and unambiguous terms so that
such person will readily know exactly what duties or obligations are imposed upon him.” In re
J.J.R.S., 627 S.W.3d 211, 223 (Tex. 2021) (quoting Ex parte Slavin, 412 S.W.2d 43, 44 (Tex.
1967) (orig. proceeding)). Even so, “while an order must be ‘clear, specific, and unambiguous’
to be enforceable by contempt, it does not follow that every order less than that is invalid.” Id.
(quoting Ex parte Slavin, 412 S.W.2d at 44). That is because “where an order’s terms are
ambiguous—that is, susceptible of more than one reasonable interpretation— . . . we look to the
surrounding circumstances to discern their meaning.” Kourosh Hemyari, 355 S.W.3d at 626
(citing Lone Star Cement Corp. v. Fair, 467 S.W.2d 402, 404–05 (Tex. 1971) (orig.
proceeding)). Here, even though the Summary Judgment Order does not define six terms, “the
ordinary meaning of the unambiguous language used in the decree controls.” Ex parte Acker,
949 S.W.2d 314, 318 (Tex. 1997) (orig. proceeding) (Owen, J., concurring in part, dissenting in
part).
The first paragraph of the complained-of portion of the Summary Judgment Order
requires that the Appellants “must remove the shipping containers installed on [the Property]
within 15 days.” We find nothing vague or ambiguous about this portion of the Summary
Judgment Order.
Turning to the second paragraph, the Appellants suggest that “dwellings” “encompass[es]
any structure on an encumbered property that is permanently attached to the land.” Yet, the use
of the term “dwelling” in the Summary Judgment Order is not so broad. To “dwell” means “to
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remain for a time.” Dwell, MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY (11th ed. 2003).
The ordinary meaning of the term “dwelling” is “a shelter (such as a house) in which people
live” or “a building or place of shelter to live in.” Turner v. State, 650 S.W.3d 803, 808 (Tex.
App.—Houston [14th Dist.] 2022, no pet.) (quoting Dwelling, https://www.merriam-
webster.com/dictionary/dwelling; https://www.dictionary.com/browse/dwelling (last visited
Mar. 28, 2022)).
Because the Summary Judgment Order used the phrase “shipping containers, or other
dwellings under 1,000 square feet,” the language categorized the Appellants’ shipping containers
as dwellings, or shelters where people could live or dwell, under 1,000 square feet. (Emphasis
added). This was consistent with restrictive covenant language requiring that “[a]ll structures
used or designed for use as a dwelling” be at least 1,000 square feet. The Appellants argue that
the language of the first paragraph might prevent “outbuildings, storage sheds and barns . . . so
long as they are permanently attached to the land,” but such a reading is incongruent with the
Summary Judgment Order’s language prohibiting only dwellings under 1,000 square feet,
including the shipping containers, which the Appellants admitted were used as short-term
rentals.7
As for the third paragraph of the complained-of portion of the Summary Judgment Order,
the Appellants argue that the paragraph is void for vagueness and is overbroad. As explained
7
Next, referring to the third complained-of paragraph, the Appellants argue that, because the terms “residence,”
“‘residential use’ and ‘non-residential use’ are not defined,” “it would appear that if the property has a dwelling that
is used in some manner as a sheltering feature by humans from the elements, then that would qualify as a residential
purpose under the Restrictive Covenants.” Yet, the plain and ordinary definitions of the terms used in the Summary
Judgment Order demonstrate otherwise because something more is required other than “a sheltering feature” to
qualify a building as having a residential purpose.
12
below, while we do not find that the paragraph renders the judgment void, we find the language
overbroad.8
The third paragraph states that the Appellants are “prohibited from using or advertising
the property . . . for special events or other non-residential uses.” The term “residence” is “the
place where one actually lives or has his home as distinguished from his technical domicile,” and
“residential” means “used, serving, or designed as a residence or for occupation by residents.”
Mavex Shops of Corinth, L.P. v. City of Corinth, No. 2-02-274-CV, 2003 WL 21357597, at *2
(Tex. App.—Fort Worth June 12, 2003, no pet.) (mem. op.) (quoting WEBSTER’S THIRD NEW
INT’L DICTIONARY 1931 (1981)). As a result, because the term “nonresidential” means “not used
as a residence or by residents,” Nonresidential, MERRIAM WEBSTER’S COLLEGIATE DICTIONARY
(11th ed. 2003), the third paragraph prohibits only non-resident use of the property while
allowing residential use of the property by the Appellants.9
We find that the Summary Judgment Order states “in clear and unambiguous terms what
is required for the [Appellants] to comply.” In re J.J.R.S., 627 S.W.3d at 224 (quoting Hale v.
Hale, No. 04-05-00314-CV, 2006 WL 166518, at *3 (Tex. App.—San Antonio Jan. 25, 2006,
pet. denied) (mem. op.)). As a result, we conclude that the Summary Judgment Order is not
void.
8
“While an injunction order may not be too vague, it need not specifically identify every act that might constitute the
prohibited action.” GL Logistics Co., LLC v. Flores, No. 04-21-00125-CV, 2021 WL 3862232, at *5 (Tex. App.—
San Antonio Aug. 31, 2021, no pet.) (mem. op.).
9
It is not clear whether the Appellants are claiming not to understand the terms “advertising” or “event.” In any
case, advertising means “the action of calling something to the attention of the public especially by paid
announcements.” Advertising, MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY (11th ed. 2003). An “event” is “a
social occasion or activity.” Event, MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY (11th ed. 2003).
13
IV. The Third Paragraph Is Overbroad
Even so, we find that the plain meaning of the third paragraph renders the paragraph
overbroad. See Tarr v. Timberwood Park Owners Ass’n, Inc., 556 S.W.3d 274, 288 (Tex. 2018).
“[A]n injunction must not be so broad as to enjoin a defendant from activities that are a
lawful and proper exercise of his rights.” GL Logistics Co., LLC, 2021 WL 3862232, at *6
(alteration in original) (quoting Computek Computer & Office Supplies, Inc. v. Walton, 156
S.W.3d 217, 221 (Tex. App.—Dallas 2005, no pet.)).
In response to the Appellants’ argument that the third paragraph is overbroad, Appellees
argue that the third paragraph prohibits only rentals of the shipping containers, which violate the
1,000-square-foot requirement under the restrictive covenant. However, that is not what the third
paragraph says. Instead, it prohibits using or advertising the Property, including the main
residence, for special events or nonresidential purposes. As a result, the Appellants argue that
this language is “too broad and . . . can be interpreted as precluding Appellants’ property rights.”
We agree. See JBrice Holdings, L.L.C. v. Wilcrest Walk Townhomes Ass’n, Inc., 644 S.W.3d
179, 185 (Tex. 2022); Tarr, 556 S.W.3d at 291–92; see also Stephenson v. Perlitz, 532 S.W.2d
954, 955–56 (Tex. 1976).
We hold that the third paragraph of the complained-of portion of the Summary Judgment
Order is overly broad. As a result, we must reverse that portion of the Summary Judgment
Order.
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V. Conclusion
We reverse the trial court’s Summary Judgment Order in part, dissolve the language
prohibiting the Appellants from using or advertising the Property for special events or other non-
residential uses, and remand the case for the trial court to reconsider that paragraph and to redraft
it in accordance with Tarr and JBrice Holdings. See Pauli v. Hayes, No. 04-17-00026-CV, 2018
WL 3440767, at *14 (Tex. App.—San Antonio July 18, 2018, no pet.) (mem. op.) (remanding
the case for the trial court to reconsider and redraft language providing for injunctive relief). In
all other respects, we affirm the Reinstatement Order.
Scott E. Stevens
Chief Justice
Date Submitted: February 21, 2024
Date Decided: March 25, 2024
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