Affirmed as Modified and Opinion filed November 8, 2016.
In The
Fourteenth Court of Appeals
NO. 14-15-00491-CV
HOUSTON LAUREATE ASSOCIATES, LTD., Appellant
V.
MAROLYN RUSSELL, JOEL GOFFMAN, M.D., AND PARK LAUREATE
PLACE HOMEOWNERS’ ASSOCIATION, Appellees
On Appeal from the 11th District Court
Harris County, Texas
Trial Court Cause No. 2013-34999
OPINION
In this suit for breach of an easement agreement, defendant landowner
Houston Laureate Associates, Ltd. (“Houston Laureate”) appeals from the
judgment and permanent injunction rendered in favor of neighboring homeowners
Marolyn Russell and Joel Goffman and Park Laureate Place Homeowners’
Association (“the Association”). Houston Laureate asserts that Russell and
Goffman lack standing to pursue their claims; contends that the trial court erred in
granting three motions for partial summary judgment and in denying a motion for
new trial; and challenges each of the six categories of acts that the trial court
permanently enjoined it from performing. Although we conclude that the trial
court ruled correctly in most of the challenged instances, we hold that a partial
summary judgment on the question of attorney’s fees was overly broad and that
one category of injunctive relief is too vague to be enforceable. We accordingly
reform the judgment and permanent injunction to remedy these errors, and affirm
the judgment as modified.
I. BACKGROUND
Houston Laureate owns an office building and some of the surrounding land.
Houston Laureate’s neighbor is residential development Park Laureate Place (“the
Residential Land”). When the Residential Land was being developed, its then-
owner Laureate Associates, Ltd. (“the Residential Landowner”) entered into a
Recreational Easement Agreement (“the Agreement”) with Houston Laureate. In
the Agreement, Houston Laureate granted the Residential Landowner a permanent,
nonexclusive easement to use part of Houston Laureate’s land for recreational
purposes. The Agreement refers to this part of Houston Laureate’s property as
“the Recreational Land,” and it includes an exercise facility and a green belt
traversed by asphalt walking paths.
The Agreement also mandated that, before any of the individual lots of the
Residential Land were sold, the Residential Landowner had to establish a
homeowners’ association and assign to it the Residential Landowner’s rights under
the Agreement. The Residential Landowner did establish the Association and
assign its rights in the Agreement to it, and homes built on the Residential Land
were purchased by homeowners Marolyn Russell and Dr. Joel Goffman. We refer
to Russell, Goffman, and the Association collectively as “the Residents.”
2
Disputes arose between Houston Laureate and the Residents concerning the
use of the Recreational Land. Russell sued Houston Laureate and sought
injunctive relief; Goffman and the Association intervened and asserted further
claims against Houston Laureate.1 In particular, the Residents alleged that
Houston Laureate violated the Agreement by (a) charging a licensing fee to
independent fitness instructors hired by individual homeowners to supervise their
personal exercise programs, and (b) enacting a rule requiring anyone using the
Recreational Land to remain on the asphalt walking paths at all times.
During the course of the litigation, Houston Laureate began charging its
attorney’s fees to the Association and requiring the Association to collect the fees
from the homeowners. When the Association refused to do so, Houston Laureate
suspended the homeowners’ rights to use the Recreational Land and informed the
Association that if any homeowner used the Recreational Land, Houston Laureate
would contact the authorities and report the homeowner as a trespasser. The
Residents responded by seeking injunctive relief regarding these matters as well.
Houston Laureate requested a jury trial on all of these contested issues.
The trial court issued a temporary injunction to return the parties to the
status quo; denied Houston Laureate’s motion for partial summary judgment
challenging Russell’s and Goffman’s standing; and granted the Residents partial
summary judgments on their claims challenging the licensing fees, the asphalt-path
rule, and the imposition of attorney’s fees. After an evidentiary hearing, the trial
court extended the temporary injunction, and the parties moved for entry of
judgment and permanent injunction so they could proceed with this appeal of those
rulings and of the underlying partial summary-judgment rulings. The trial court
1
Under the terms of the parties’ Rule 11 agreement, any relief granted to a Resident by
the trial court is treated as though the relief were requested by, and granted to, all of the
Residents. We follow the same convention where it is possible to do so.
3
rendered a final judgment that incorporated its prior rulings and included a
permanent injunction.
II. ISSUES PRESENTED
In six issues, Houston Laureate argues that the trial court erred in
denying Houston Laureate’s motion for partial summary judgment on its
asserted ground that Russell and Goffman lack standing to assert their
claims;
granting the Residents’ motion for partial summary judgment on their claim
that Houston Laureate breached the Agreement by charging independent
fitness instructors retained by the homeowners a licensing fee for the use of
the Recreational Land’s exercise facility;
granting the Residents partial summary judgment on their claim that
Houston Laureate breached the Agreement by requiring anyone using the
Recreational Land to remain on the asphalt paths at all times;
granting the Residents partial summary judgment holding that the
Agreement’s indemnification provision does not authorize Houston Laureate
to charge the attorney’s fees it incurred in this litigation to the Association;
granting the Residents partial summary judgment holding that the
Agreement’s “operation expenses” provision does not authorize Houston
Laureate to charge a portion of the attorney’s fees it incurred in this
litigation to the Association; and
granting the Residents final permanent injunctive relief that, according to
Houston Laureate, (a) relied on erroneous summary-judgment rulings,
4
(b) deprived Houston Laureate of its right to a jury trial, and (c) granted
nonspecific relief that the Residents neither requested nor proved.
III. PARTIAL SUMMARY JUDGMENTS
A movant for traditional summary judgment has the burden of showing that
there is no genuine issue of material fact and that it is entitled to judgment as a
matter of law. TEX. R. CIV. P. 166a(c); Mann Frankfort Stein & Lipp Advisors,
Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). If the movant establishes each
element of the claim or defense for which it seeks traditional summary judgment,
then the burden shifts to the nonmovant to disprove or raise a genuine issue of
material fact regarding at least one of those elements. See Katy Venture, Ltd. v.
Cremona Bistro Corp., 469 S.W.3d 160, 163 (Tex. 2015) (per curiam). In
analyzing an appeal from a traditional summary judgment, we review the evidence
presented by the motion and response in the light most favorable to the non-
movant, crediting evidence favorable to the non-movant if reasonable jurors could,
and disregarding contrary evidence unless reasonable jurors could not. See
Gonzalez v. Ramirez, 463 S.W.3d 499, 504 (Tex. 2015) (per curiam); Mack Trucks,
Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006).
The summary-judgment motions before us turn on questions of contract
interpretation. When reviewing a contract, our goal is to determine the parties’
true intentions as expressed in the instrument. See Coker v. Coker, 650 S.W.2d
391, 393 (Tex. 1983). We do not read any provision in isolation, but consider each
provision with reference to the whole. See id. If the contract’s language can be
given a definite legal meaning or interpretation, then it is not ambiguous and we
will construe the contract as a matter of law. See El Paso Field Servs., L.P. v.
MasTec N. Am., Inc., 389 S.W.3d 802, 806 (Tex. 2012) (citing Italian Cowboy
Partners, Ltd. v. Prudential Ins. Co. of Am., 341 S.W.3d 323, 333 (Tex. 2011)). A
5
contract is ambiguous if, after applying the principles of contract construction, it is
subject to more than one reasonable interpretation. See Plains Expl. & Prod. Co. v.
Torch Energy Advisors Inc., 473 S.W.3d 296, 305 (Tex. 2015). An ambiguous
contract will not support summary judgment because it creates a question of fact
about the parties’ intent. See id.
A. Houston Laureate Challenges Russell’s and Goffman’s Standing and
Capacity.
In a threshold issue, Houston Laureate contends that Russell and Goffman
lacked standing to assert their claims. Although the terms often are used
imprecisely, the question of whether a party has “standing” to assert a claim is
distinct from whether the party has the “capacity” to do so. See Vernco Constr.,
Inc. v. Nelson, 460 S.W.3d 145, 149 n.1 (Tex. 2015) (per curiam). “A plaintiff has
standing when it is personally aggrieved, regardless of whether it is acting with
legal authority; a party has capacity when it has the legal authority to act,
regardless of whether it has a justiciable interest in the controversy.” Nootsie, Ltd.
v. Williamson Cty. Appraisal Dist., 925 S.W.2d 659, 661 (Tex. 1996). Because
standing is a component of subject-matter jurisdiction, it cannot be waived or
conferred by agreement. See Bierwirth v. AH4R I TX, LLC, No. 01-13-00459-CV,
2014 WL 5500487, at *2 (Tex. App.—Houston [1st Dist.] Oct. 30, 2014, no pet.)
(mem. op.).
Because one of Houston Laureate’s standing arguments is instead a
challenge to capacity, we discuss the two arguments separately. First, however, we
must address the Residents’ assertion that this issue is moot.
1. Houston Laureate’s challenges to Russell’s and Goffman’s standing
and capacity are not moot.
According to the Residents, Houston Laureate’s challenge to Russell’s and
Goffman’s standing has been rendered moot by the parties’ Rule 11 agreement.
6
See TEX. R. CIV. P. 11. In that document, the parties agreed that “any remedy
granted in the orders signed by the trial court in the above-referenced matter will
be considered to grant relief to each and every Plaintiff as if that Plaintiff
independently had sought such relief.”2 This language does not moot Houston
Laureate’s standing and capacity arguments, because Houston Laureate agreed
only that it would proceed as though Russell, Goffman, and the Association each
successfully sought the same relief. Houston Laureate did not agree that each of its
three adversaries possessed the standing and capacity to do so. We therefore will
address the merits of those complaints.
2. Russell and Goffman have standing to pursue their claims.
Houston Laureate argues that Russell and Goffman cannot be personally
aggrieved by its actions because “the right to use the Recreational Easement is now
held by the Association—not the individual lot owners.” See Nootsie, Ltd., 925
S.W.2d at 659. After reviewing the question of standing de novo,3 we disagree.
Section 1.1 of the Agreement states that the easement is being conveyed “for
Recreational Purposes for the benefit of the Residential Land and for the use and
benefit of the Residential Landowner.” Thus, the easement exists not only to
benefit the Residential Landowner, but also to benefit the Residential Land. As the
name indicates, the “Residential Land” includes each individual lot on which a
home was built.
Section 14.1 fulfills this stated purpose by providing that individual
homeowners acquire “all rights under this Agreement” as part of the transfer of
title to an individual lot:
2
Although Russell was the only “plaintiff,” the parties frequently applied the term not
only to Russell but also to each intervenor.
3
See State v. Naylor, 466 S.W.3d 783, 787 (Tex. 2015).
7
Any transferee of any part of the Office Building Land or the
Residential Land shall automatically be deemed, by acceptance of the
title to any portion of the Office Building Land or the Residential
Land, to have succeeded to all rights under this Agreement and
assumed all obligations under this Agreement relating thereto to the
extent of such transferee’s interest in the Office Building Land or the
Residential Land, as the case may be . . . .
This is confirmed by section 5.1 of the Agreement, which provides that if the
owner of a residential lot fails to pay amounts due under the Agreement, then
Houston Laureate may suspend “the lot owner’s (and its tenants and invitees)
rights hereunder.” If the Agreement conveyed no rights to the homeowners, then
there would be no “rights hereunder” to suspend, and sections 5.1 and 14.1 would
be meaningless. See City of Keller v. Wilson, 168 S.W.3d 802, 811 (Tex. 2005)
(“[R]eviewing courts must construe contracts as a whole; we do not consider only
the parts favoring one party and disregard the remainder, as that would render the
latter meaningless.”).
In arguing that Russell and Goffman lack standing, Houston Laureate does
not address any of these provisions, but instead relies on two other provisions
concerning the assignment of the Residential Landowner’s contractual rights and
benefits. Section 8.1 required the Residential Landowner to assign its contractual
rights to the Association, and section 12.1 permitted the Residential Landowner to
assign its rights and benefits only to the Association or to a purchaser of the
entirety of the Residential Land. But as we have just seen, the individual
homeowners “succeeded” to the rights of the Residential Landowner and the
Association without the need for an “assignment.” See id.
We conclude that the Agreement confers upon the homeowners the
contractual right to use the easement for recreational purposes. Because Russell
and Goffman each possessed such a contractual right, each was personally
8
aggrieved by its actual or threatened violation, and thus, each had standing to sue
for redress.
3. Russell and Goffman have the capacity to pursue their claims.
Houston Laureate also argues that only the Association, through its president
as the Association’s “Designated Representative,” has standing to bring an action
under the Agreement. This argument really is about capacity. See, e.g., Highland
Credit Opportunities CDO, L.P. v. UBS AG, 451 S.W.3d 508, 515–16 (Tex.
App.—Dallas 2014, no pet.) (stating that whether an individual is entitled to sue on
a contract is a question of capacity, not of standing); Rutledge v. Leonard, No. 10-
07-00376-CV, 2009 WL 1412859, at *2 (Tex. App.—Waco May 20, 2009, no pet.)
(mem. op.) (stating that an attorney’s ability to sue a client for breach of the
contract between the client and the attorney’s professional limited liability
company was a question of capacity). We may address the issue despite the
misnomer. See Coastal Liquids Transp., L.P. v. Harris Cty. Appraisal Dist., 46
S.W.3d 880, 884 (Tex. 2001).
Section 14.8 expressly authorizes individual homeowners to enforce the
Agreement through injunctive relief:
14.8 Cumulative Remedies. Except as otherwise provided herein, all
rights and remedies of the parties’ hereto set forth in this Agreement
are cumulative and shall be deemed to be in addition to any and all
other rights and remedies to which such party may be entitled at law
or in equity . . . . In the event of any violation or attempted or
threatened violation of the provisions of this Agreement or any
interference or attempted or threatened interference with the rights
herein granted, the provisions of this Agreement may be enforced by
any owner or Mortgagee of any portion of the Office Building Land or
the Residential Land by restraining orders or injunctions (temporary
or permanent) commanding compliance with the terms hereof . . . .4
4
Emphasis added.
9
Because this provision authorizes individual lot owners to enforce their contractual
rights, Russell and Goffman have the capacity to do so.
As support for its position that only the Association’s Designated
Representative is permitted to sue on the contract, Houston Laureate relies on
section 13.2 of the Agreement:
13.2 Multiple Owners. In no event shall the owners of all or a portion
of the Residential Land be entitled to act or enforce their rights in any
way other than through the Designated Representative appointed for
the Residential Land; the Office Building Owner shall be obligated to
deal only with such Designated Representative as to any matters
pertaining to this Agreement. . . .
Section 13.2, however, must be read in light of Section 13.1, which
addresses the purpose of a Designated Representative and what it means to “deal
with” that person. See Fort Worth Indep. Sch. Dist. v. City of Fort Worth, 22
S.W.3d 831, 842 (Tex. 2000) (“To determine the parties’ intent, we must look at
the arrangement as a whole.”); Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132, 134
(Tex. 1994) (sub. op.) (discussing the “long-established rule that ‘[n]o one phrase,
sentence, or section [of a contract] should be isolated from its setting and
considered apart from the other provisions’” (quoting Guardian Trust Co. v.
Bauereisen, 132 Tex. 396, 121 S.W.2d 579, 583 (1938))) (alterations in original).
Section 13.1 provides as follows:
13.1 Designated Representatives. [Houston Laureate] and the
Residential Landowner shall each designate one representative for
purposes of receiving notices and communications in connection with
this Agreement. . . . The parties hereto shall be obligated to deal only
with the Designated Representative to facilitate the purposes of this
Agreement. Each party hereto shall be entitled to rely upon any
decision, notice or communication provided from or given to such
Designated Representative. . . . [Houston Laureate] and the
Residential Landowner hereby appoint their respective Designated
Representatives as their true and lawful attorney in fact with the full
10
power and authority to do and take all such actions as are required or
authorized to be taken under the terms of this Agreement by such
party appointing such Designated Representative.5
To “facilitate” means to “make (an action or process) easy or easier.” NEW
OXFORD AMERICAN DICTIONARY 619 (Angus Stevenson & Christine Lindberg eds.,
3d ed. 2010). And in this context, to “deal with” means to “take measures
concerning (someone or something), esp. with the intention of putting something
right.” See id. at 445. But when that process breaks down and a homeowner sues
Houston Laureate for breach of contract, the parties are no longer “deal[ing] with”
one another “to facilitate the purposes” of the Agreement. The homeowner instead
is asking a court to prevent further violations or to impose a remedy for Houston
Laureate’s past breach of contract. Section 13.1 grants the Association’s
Designated Representative the legal authority to sue on the homeowners’ behalf,
but it does not deprive the homeowners of the authority to personally assert their
claims. See also Ayres Welding Co. v. Conoco, Inc., 243 S.W.3d 177, 181 (Tex.
App.—Houston [14th Dist.] 2007, pet. denied) (explaining that more specific
provisions trump general provisions).
In addition to challenging the trial court’s summary-judgment ruling on the
issue of Russell’s and Goffman’s standing and capacity to pursue their claims,
Houston Laureate challenges the trial court’s denial of its motion for new trial on
this issue. We review the denial of a motion for new trial for abuse of discretion.
See In re R.R., 209 S.W.3d 112, 114 (Tex. 2006) (per curiam). Houston Laureate
did not brief this part of the issue, and in any event, its motion for new trial repeats
the same argument made in its summary-judgment response. Because that
argument is incorrect for the reasons discussed, the trial court did not abuse its
discretion in denying the motion for new trial on the question of Russell’s and
5
Emphasis added.
11
Goffman’s standing and capacity. Thus, we overrule Houston Laureate’s first
issue.
B. The Agreement Bars Houston Laureate from Charging a Licensing Fee
for the Use of the Recreational Land by an Independent Fitness Trainer
who is a Resident’s Visitor or Invitee.
Houston Laureate next challenges the trial court’s partial summary-judgment
ruling that the Agreement prohibits Houston Laureate from charging licensing fees
to an independent fitness trainer who is authorized by a homeowner to use the
Recreational Land. In seeking summary judgment on this issue, the Residents
relied on section 1.6 of the Agreement:
1.6 Mutual Use. . . . The Office Building Owner hereby reserves for
itself . . . the full, free, and uninterrupted use, liberty, right, privilege
and easement, in common with the Residential Landowner and its
assigns, and all others having like right, at all times hereafter, to use
the easement granted together with such additional rights granted or
reserved as provided herein. Such mutual use shall be free of any
charge or payment therefor (except as to expenses which are to be
divided as herein provided), and shall be subject to the terms of this
Agreement. . . .6
Section 1.6 unambiguously prohibits Houston Laureate from charging the
Residential Landowner “and all others having like right” for use of the easement.
We already have seen that the homeowners succeeded to the Residential
Landowner’s rights under the Agreement, and section 1.5 further provides that
“[t]enants, invitees and visitors of the Residential Landowner and its assigns are
hereby authorized to exercise any one or more of the rights granted to the
Residential Landowner . . . , subject, however to the terms of this Agreement.”
Thus, the Agreement unambiguously bars Houston Laureate from charging the
homeowners, their visitors, or their invitees to use the Recreational Land. This
6
Emphasis added.
12
prohibition contains no exception for charges imposed by rule.7 See DeWitt Cty.
Elec. Co-op., Inc. v. Parks, 1 S.W.3d 96, 102 (Tex. 1999) (“[G]eneral provisions of
the easement . . . cannot override other, more specific provisions of the easement
that spell out in detail the parties’ respective rights.”).
Houston Laureate argues that the Agreement permits the Recreational Land
to be used only for “recreational purposes,” and that “recreational purposes” do not
include “for-profit” activities. We do not consider whether that might be true in a
more general sense, because in the Agreement, “recreational purposes” is a defined
term. Cf. Marcus Cable Assocs., L.P. v. Krohn, 90 S.W.3d 697, 701 (Tex. 2002)
(“When the grant’s terms are not specifically defined, they should be given their
plain, ordinary, and generally accepted meaning. ((emphasis added)).
“Recreational Purposes” is defined as “picnicking, swimming, exercising, hiking,
walking, jogging, ballplaying and other uses generally associated with parks and
playgrounds.” Thus, the Agreement identifies “recreational purposes” by the
objective nature of the activity, not the participants’ reasons for engaging in it.
Such “recreational purposes” naturally include supervising or assisting
others in recreational use. When an adult supervises a child on a playground, they
both are using the playground for a “recreational purpose,” regardless of whether
the adult is a parent or a paid babysitter. When one person pushes another in a
wheelchair along a jogging trail, they both are using the trail for a recreational
7
Moreover, section 1.6 gives Houston Laureate “the right to impose reasonable rules and
regulations applicable to the Recreational Land and the improvements located thereon, so long as
said rules and regulations do not unreasonably impair or restrict use of the Recreational Land and
are consistently and uniformly applied to all users of the Recreational Land.” Thus, Houston
Laureate not only is flatly prohibited from imposing additional charges on one of the
Recreational Land’s users, but also is prohibited from enacting a rule that applies solely to those
users who are, or who use the services of, independent fitness trainers.
13
purpose, regardless of whether the person providing assistance is a volunteer or a
professional aide.
The same reasoning applies to the activity of exercising: when a homeowner
is exercising under a person’s guidance, they both are using the property for a
recreational purpose; regardless of whether the person is a friend or a business
invitee, the activity they are engaging in is the same. The Agreement specifically
authorizes a homeowner’s visitors and invitees to use the Recreational Land, and
draws no distinction between the visitor’s use and the same use by a homeowner’s
invitee.
Because the unambiguous language of the contract established the
Residents’ right to judgment on this issue as a matter of law, the trial court did not
err in granting their motion for partial summary judgment on the issue of licensing
fees. See Lopez v. Muñoz, Hockema & Reed, L.L.P., 22 S.W.3d 857, 862 (Tex.
2000) (“When a contract is unambiguous we will enforce it as written.”).
Houston Laureate additionally contends that the trial court abused its
discretion in overruling Houston Laureate’s motion for new trial, which included
an affidavit containing an expert opinion that “rules restricting third-party
commercial activity at fitness facilities or on recreational land are reasonable and
common” because that “is the only way to economically operate.” We conclude
that, for at least two reasons, the trial court did not abuse its discretion in denying
the motion for new trial on this issue.
First, the affidavit was signed three weeks after the trial court rendered its
final judgment. To obtain a retrial based on newly discovered evidence, a party
must show that (a) the new evidence came to its knowledge since the trial, (b) its
failure to discover the evidence sooner was not due to a lack of diligence, (c) the
new evidence is not cumulative, and (d) the evidence is so material that it probably
14
would produce a different result if a new trial were granted. See Waffle House,
Inc. v. Williams, 313 S.W.3d 796, 813 (Tex. 2010). Houston Laureate addressed
none of these factors in the trial court or on appeal.
Second, the evidence is directed to the wrong question: the Residents did
not seek, and the trial court did not grant, summary judgment on the ground that
Houston Laureate’s rule charging independent fitness instructors was
unreasonable. The question addressed was whether the Agreement mandates that
the use of the Recreational Land by the Association, by a homeowner, or by a
homeowner’s employee, invitee, or visitor “shall be free of any charge or
payment,” without regard to whether such a charge otherwise would be reasonable.
The answer to that question is yes, because the specific prohibition against
charging for the use of the Recreational Land prevails over the more general
provision permitting Houston Laureate to enact reasonable rules. See DeWitt Cty.
Elec. Co-op., Inc., 1 S.W.3d at 102. The trial court therefore did not abuse its
discretion in denying the motion for new trial on the question of licensing fees.
We overrule Houston Laureate’s second issue.
C. The Agreement Bars Houston Laureate from Requiring the Residents
to “Remain on Asphalt Paths at All Times.”
The Residents also successfully sought partial summary judgment on the
ground that Houston Laureate’s rule, “Remain on asphalt paths at all times,”
eliminated the right to use the Recreational Land for, among other things, playing
ball. In its summary-judgment response, Houston Laureate argued only that it has
exclusive authority to regulate the use of the Recreational Land. Specifically,
section 1.6 of the Agreement gives Houston Laureate “the right to impose
reasonable rules and regulations applicable to the Recreational Land . . . , so long
as said rules and regulations do not unreasonably impair or restrict use of the
15
Recreational Land . . . .” In addition, section 2.1 gives Houston Laureate “the
exclusive authority . . . to operate the Recreational Land . . . and to make all
decisions concerning the manner in which the Recreational Land . . . [is]
maintained, repaired, improved, . . . configured, and operated.” Houston Laureate
analogized its position to that of the Houston Arboretum and Nature Center, which
requires users to “stay on designated trails.” Houston Laureate pointed out that the
arboretum is a park, and concluded, “What the City can do, Houston Laureate can
do.”
But the Agreement did not convey a right to use the Recreational Land as an
arboretum; it expressly conveyed to the Residential Landowner the right to use the
Recreational Land for “picnicking . . . , ballplaying and other uses generally
associated with parks and playgrounds.” (emphasis added). Compare NEW
OXFORD AMERICAN DICTIONARY 81 (defining “arboretum” as “a botanical garden
devoted to trees”) with id. at 1341 (defining “playground” as “an outdoor area
provided for children to play on, esp. at a school or public park”). Consistent with
those purposes, section 1.1 of the Agreement conveyed an easement “on, over, and
across the Recreational Land . . . together with the right to walk on and over the
roadway, ramps and pedestrian access ways within the Recreational Land.”
(emphasis added). Similarly, “Recreational Land” is defined in the agreement to
include not only “esplanades, pathways, trails, [and] bike paths,” but also “green
belts.” Houston Laureate’s summary-judgment argument ignores all of this
language in contravention of the canons of contract construction. See Plains Expl.
& Prod. Co., 473 S.W.3d at 305 (explaining that in contract construction, courts
must harmonize and give effect to all of the contract’s provisions, so that none is
rendered meaningless or given controlling effect). Because the terms of the
Agreement do not permit Houston Laureate to restrict all use of all areas of the
16
green belt at all times, the trial court did not err in granting partial summary
judgment on this issue.
Houston Laureate also contends that the trial court abused its discretion in
denying its motion for new trial on this issue. In that motion, Houston Laureate
argued that the rule prohibiting any user from stepping off of the asphalt paths is
reasonable because it was enacted for safety reasons. Although Houston Laureate
did not raise that argument in its summary-judgment response, it did file a motion
to reconsider the partial summary judgment, and it argued in that motion that the
grassy areas of the Residential Land are unsuitable for picnicking because “[t]hey
are uneven, mostly sloping ground.” The evidence offered in support of the
motion for reconsideration consisted solely of copies of the orders granting partial
summary judgment; however, the motion for reconsideration was heard after the
evidentiary hearing on the temporary injunction, where the court heard evidence
from Houston Laureate’s Designated Representative Janice Levering King.
We do not agree with Houston Laureate’s contention that King’s testimony
created a fact issue on the reasonableness of the rule regarding asphalt paths. At
the hearing, King was asked about “conditions on the recreational land that can
cause safety issues,” and she testified that “[t]he terrain is uneven” and “[t]here is a
lot of change in elevation on the property.” She testified about erosion on the
bayou adjacent to the property, but not on the property itself. Significantly, King
did not link any of her statements about uneven terrain to the rule prohibiting users
from stepping off of the asphalt paths, nor did she testify that the rule was passed
for safety reasons.
The rule does not merely limit the use of the green belt; the rule eliminates
it. That some terrain is uneven or unsafe cannot justify a complete ban. The
Agreement authorizes Houston Laureate to issue rules limiting or regulating the
17
use of the Recreational Land, but the Agreement does not authorize Houston
Laureate to issue a rule revoking a specific right of use that the Agreement has
expressly conveyed.
We conclude that the trial court did not abuse its discretion in denying
Houston Laureate’s motion for new trial on this question, and we overrule this
issue.
D. The Trial Court’s Partial Summary Judgment Regarding Attorney’s
Fees is Overly Broad.
The trial court granted partial summary judgment that Houston Laureate
cannot charge its attorney’s fees from this case to the Residents. This ruling was
incorporated into the permanent injunction, and Houston Laureate challenges both
the injunction and the underlying summary judgment.
1. Houston Laureate’s challenge to the partial summary judgment and
the injunction regarding attorney’s fees is not moot.
The Residents assert that this issue is moot because after the trial court
granted their motion for summary judgment on the matter of attorney’s fees, all of
the parties stipulated that they waived their respective rights to recover attorney’s
fees claimed or incurred at any stage of this litigation. Houston Laureate responds
that the issue of attorney’s fees is not moot because the partial summary judgment
will continue to have a res judicata effect. Houston Laureate is correct. The
waiver of attorney’s fees from this litigation did not set aside the prior partial
summary judgment, and the permanent injunction incorporated that ruling. The
issue is not moot. See Hyundai Motor Co. v. Alvarado, 892 S.W.2d 853, 855 (Tex.
1995) (per curiam) (“A partial summary judgment is a decision on the merits
unless set aside by the trial court.”). The waiver still affects the appeal, however,
because Houston Laureate has waived the right to relitigate its ability to shift
responsibility for the attorney’s fees it incurred in this case. Thus, if we conclude
18
that the trial court erred in any of its rulings concerning attorney’s fees, we may
reverse the ruling so that it will not bar Houston Laureate from litigating its right to
recover attorney’s fees arising from a different case, but we cannot remand any
claim for fees arising from this litigation because Houston Laureate has waived
any right it may have had to recover those fees.
2. The Agreement’s indemnification provision does not apply to
Houston Laureate’s attorney’s fees incurred in defending against
the Residents’ pursuit of injunctive relief, but the Residents did not
argue that the provision applies to Houston Laureate’s attorney’s
fees incurred in defending against their claims for damages.
We begin our analysis with the language of the relevant provision. Section
3.2 of the Agreement contains the following waiver-and-indemnification provision:
To the extent not expressly prohibited by law or caused by [Houston
Laureate’s] gross negligence or willful misconduct, Residential
Landowner hereby releases [Houston Laureate] . . . from and waives
all claims for damages, losses and liability to persons or property
sustained by the Residential Landowner . . . arising or resulting from
or in connection with the use of the Recreational Land and the
Residential Landowner hereby agrees to indemnify, save, protect and
hold harmless [Houston Laureate] . . . from and against all such
liability, losses, damages, costs and claims, including without
limitation court costs and reasonable attorneys’ fees and expenses. . . .
Notwithstanding the foregoing, nothing contained herein is intended
to release either the Residential Landowner or [Houston Laureate]
from any other obligations contained in this Agreement.
Under this provision, the Residential Landowner has a duty to indemnify
Houston Laureate for attorney’s fees only if the fees were incurred in connection
with a claim that the Residential Landowner has waived or released. As previously
discussed, however, section 14.8 reserves the right of homeowners and of the
Association to sue for injunctive relief. Thus, claims seeking injunctive relief for
Houston Laureate’s actual or threatened breach of the Agreement were neither
waived nor released.
19
In their motion for partial summary judgment on the issue of attorney’s fees,
the Residents argued that section 3.2 does not obligate them to indemnify Houston
Laureate for its attorney’s fees because they “are making no claim for ‘damages,
losses (or) liability,” and the Residents are not “obligated to indemnify [Houston
Laureate] for the cost of defending its violations of the easement against suits for
injunctive relief.” Houston Laureate responded that the Residents also asserted
claims for damages, losses, and liability, and it repeated that argument in its
motion for new trial. Both sides are partially correct.
Because the Agreement preserves the Residents’ rights to pursue injunctive
relief, we agree with the Residents that they are not obligated to indemnify
Houston Laureate for the attorney’s fees it incurred in litigating the Residents’
entitlement to such a remedy. We accordingly affirm the portion of the permanent
injunction that is based on the trial court’s partial summary judgment on that
question, and we hold that the trial court did not abuse its discretion in denying
Houston Laureate’s motion for new trial on that point.
On the other hand, the Residents are mistaken in asserting that they made no
claims for damages, losses, or liability. Goffman sued for breach of contract, and
in his first two pleadings, he also alleged constructive eviction. He dropped his
constructive-eviction claim after Houston Laureate moved for summary judgment
on that cause of action, but he continued to pursue his claim for breach of contract.
In his live pleading, Goffman specifically prayed to recover damages caused by
Houston Laureate’s breach of the Agreement.
Because the Residents raised no grounds for summary judgment regarding
their duty to indemnify Houston Laureate for the attorney’s fees it incurred in
connection with claims for damages, the trial court erred in granting partial
summary judgment that section 3.2 prohibits Houston Laureate from charging such
20
fees to the Residents. We reverse the trial court’s partial summary judgment
concerning Houston Laureate’s right to indemnification for fees it incurred in
connection with claims against it for damages in this litigation, and we modify the
permanent injunction to clarify that Houston Laureate is barred from charging the
Residents for those attorney’s fees, not because of the trial court’s ruling, but
because it has waived its contractual right, if any, to do so.
3. The Residents failed to establish that Houston Laureate is not
authorized to charge a portion of its attorney’s fees to the
Association under the Agreement’s operation-expenses provision.
The Agreement requires the Residential Landowner to pay for 25% of
Houston Laureate’s “maintenance and operation expenses.” Section 2.3 defines
that expression as follows:
2.3 Maintenance and Operation Expenses. The term “Maintenance
and Operation Expenses”, as used herein, shall include, without
limitation, the following:
(a) the aggregate of all reasonable, necessary and proper
costs[,] expenses and liabilities of every kind and nature
paid or incurred in operating, maintaining, repairing,
insuring and supervising or policing the use [of] the
Recreational Land, any improvements located thereon
and any public easements or rights-of-way appurtenant
thereto, including without limitation, signs, an equitable
allocation of the costs of providing guards or other
security personnel or devices, if any, that [Houston
Laureate] deems reasonably necessary and which is
commercially practicable for proper supervision and
security pertaining to the use of the Recreational Land,
cleaning, sweeping, striping, paving, painting, snow and
debris removal, landscaping, lighting, sprinklering,
sidewalk and surface repair, equipment rental and
purchase, utilities, reasonable reserves, an equitable
allocation of management fees, an equitable allocation of
labor costs, direct labor, supplies, utilities, casualty,
liability and any other insurance, maintenance,
21
demolition, repairs (structural or otherwise),
replacement. . . .
The term “Maintenance and Operation Expenses”, shall exclude the
following:
....
(e) Any expenses incurred solely for the benefit of, or
attributable to the requirements of, the Office Building
Land (or [Houston Laureate]), or the Residential Land (or
the Residential Landowner), which expenses shall be
borne exclusively by the party required to incur them, or
solely benefiting from them.
The Residents maintain that Houston Laureate’s attorney’s fees were not
recoverable as “operation expenses” under section 2.3, and sought partial summary
judgment on this issue on three grounds. We conclude, however, that the trial
court’s ruling cannot be sustained on any of them.
First, the Residents reasoned that Houston Laureate’s attorney’s fees are not
“necessary and proper” operation expenses because the fees were incurred in
defense of rules that violated the Agreement. Stated differently, the Residents
argued that Houston Laureate could not recover attorney’s fees because the trial
court agreed with the Residents that Houston Laureate breached the contract. The
flaw in that position is that section 2.3 contains no “prevailing party” language;
thus, the Residents did not establish that, as a matter of law, Houston Laureate’s
attorney’s fees were not “necessary and proper” simply because Houston
Laureate’s defense of its rules was unsuccessful.
Second, the Residents argued that Houston Laureate’s attorney’s fees were
“incurred in litigating, a term not mentioned in 2.3 and an activity not suggested by
any of 2.3’s laundry list of examples.” Although section 2.3 does not use the word
“litigating,” it provides that operation expenses “include, without limitation, . . . the
aggregate of all reasonable, necessary and proper costs[,] expenses and liabilities
22
of every kind and nature paid or incurred in operating, . . . [or] policing the use
[of] the Recreational Land.” (emphasis added). The subsequent list of included
expenses is not a limitation of this expansive language. See, e.g., Anderson & Kerr
Drilling Co. v. Bruhlmeyer, 134 Tex. 574, 582, 136 S.W.2d 800, 804 (1940); Jones
v. St. Paul Ins. Co., 725 S.W.2d 291, 292 (Tex. App.—Corpus Christi 1986, no
writ).
As a third ground for summary judgment, the Residents made the bare
assertion that “[t]he attorneys’ fees in question were unquestionably ‘solely for the
benefit of,’ and ‘attributable to the requirements of’ Defendant [Houston
Laureate].” This statement is no more than an unsupported allegation. The
Residents made no attempt to explain why, as a matter of law, this allegation is
true.
On the question of whether Houston Laureate can charge a portion of its
attorney’s fees to the Residents as operation expenses, the partial summary
judgment cannot be affirmed on any of the grounds advanced in the Residents’
motion. We therefore reverse the portion of the partial summary judgment holding
that section 2.3 prohibits Houston Laureate from charging a portion of its
attorney’s fees as operation expenses, and we modify the permanent injunction to
clarify that Houston Laureate is barred from charging those fees to the Residents,
not because of the trial court’s ruling, but because Houston Laureate has waived its
contractual right, if any, to do so.
IV. FINAL PERMANENT INJUNCTIVE RELIEF
In its remaining issue, Houston Laureate challenges each portion of the
permanent injunction. We review the grant of injunctive relief for abuse of
discretion. See Operation Rescue-Nat’l v. Planned Parenthood of Hous. & Se.
Tex., Inc., 975 S.W.2d 546, 560 (Tex. 1998); Tanglewood Homes Ass’n, Inc. v.
23
Feldman, 436 S.W.3d 48, 46 (Tex. App.—Houston [14th Dist.] 2014, pet. denied).
A trial court abuses its discretion if it acts without reference to guiding rules or
principles. Van Ness v. ETMC First Physicians, 461 S.W.3d 140, 142 (Tex. 2015)
(per curiam).
A. Houston Laureate Cannot Show That It Was Deprived of the Right to a
Jury Trial.
Houston Laureate contends that it “was deprived of a jury trial on the issue
of the availability of a permanent injunction” and cites the page of its first
amended answer in which Houston Laureate demanded a jury trial and stated that it
tendered the appropriate fee with the pleading. Nevertheless, the right to a jury
trial can be waived even after the jury fee is paid. See In re K.M.H., 181 S.W.3d 1,
8 (Tex. App.—Houston [14th Dist.] 2005, no pet.). The Residents maintain, and
Houston Laureate denies, that under the terms of the parties’ joint stipulation,
Houston Laureate has waived this complaint. To resolve this issue, we must
construe the joint stipulation.
We review stipulations among parties in the same way as other contracts.
See In re Ford Motor Co., 211 S.W.3d 295, 298 (Tex. 2006) (orig. proceeding)
(per curiam). We construe the agreement in light of its stated purpose. See, e.g.,
Kilgore Expl., Inc. v. Apache Corp., No. 01-13-00347-CV, 2015 WL 505275, at
*6–7 (Tex. App.—Houston [1st Dist.] Feb. 5, 2015, no pet.) (mem. op.)
(construing a contract in light of the purpose stated in the opening recitals); Nat’l
Union Fire Ins. Co. of Pittsburgh, Pa. v. Ins. Co. of N. Am., 955 S.W.2d 120, 129
(Tex. App.—Houston [14th Dist.] 1997) (same), aff’d sub nom. Keck, Mahin &
Cate v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., 20 S.W.3d 692 (Tex. 2000).
After the evidentiary hearing about extending the temporary injunction
through trial, the parties jointly stipulated as follows:
24
[All parties] appear through their respective counsel to enter
into this Stipulation to conclude all matters presently pending in this
Court and to allow the Court to enter a final appealable judgment.
The Parties agree and stipulate to the following:
1. [Houston Laureate] agrees that it will not argue on appeal
that the Final Judgment and Permanent Injunction (“Judgment”) to
be entered in this proceeding is not final or that the Judgment is
procedurally defective because there has been no trial on the merits.
Houston Laureate reserves the right to object and to challenge on
appeal any factual and legal findings that the Court makes in support
of permanent injunctive relief including the right to a jury trial where
applicable.8
By reserving the right to challenge the trial court’s factual findings and legal
conclusions “including the right to a jury trial,” Houston Laureate preserved the
ability to argue for a jury trial as part of its challenge to the trial court’s findings of
fact and conclusions of law. See NEW OXFORD AMERICAN DICTIONARY 879
(defining “including” as “containing as part of the whole being considered). This
language ensured that, even though Houston Laureate agreed to forego a jury trial
so that the trial court’s interlocutory rulings could be incorporated into an
appealable final judgment and permanent injunction, Houston Laureate still could
argue on appeal that if it successfully challenged one of the trial court’s findings of
fact or conclusions of law, then it was entitled to a jury trial on remand.
At oral argument, Houston Laureate characterized the stipulation as an
agreement that Houston Laureate would not argue that the absence of a jury trial
was a procedural defect, but maintained that their appellate complaint is not
waived because failure to conduct a jury trial is a substantive defect. In effect,
then, Houston Laureate contends that although it agreed to forego a jury trial so
that it could appeal, it nevertheless reserved the right to argue on appeal that it was
8
Emphasis added.
25
deprived of a jury trial. This is not a reasonable construction of the parties’
agreement.
Moreover, even if we agreed that Houston Laureate’s construction of the
stipulation were correct, the doctrine of invited error still would prevent Houston
Laureate from arguing on appeal that it was deprived of a jury trial. Under the
doctrine of invited error, a party that requests a specific action in the trial court
cannot complain on appeal that the trial court committed error in granting the
request. See Lamell v. OneWest Bank, FSB, 485 S.W.3d 53, 64 (Tex. App.—
Houston [14th Dist.] 2015, pet. denied). The parties entered into the stipulation
after the evidentiary hearing on the temporary injunction, and they agreed that they
did so to end the litigation in the trial court and proceed with an appeal. The trial
court recited in the judgment that the attorneys for all parties appeared before the
trial court and moved for entry of final judgment and permanent injunction. The
trial court granted the motion, and in the requested final judgment and permanent
injunction, the trial court expressly stated that its ruling was “based on the joint
stipulation,”9 among other things. Having successfully moved for the trial court
“to conclude all matters presently pending” in the trial court rather than proceeding
to a jury trial on the merits, Houston Laureate cannot be heard to complain that the
trial court erroneously deprived Houston Laureate of the right to a jury trial.
B. The Permanent Injunction Must Be Modified to Eliminate the
Incorporation of Erroneous Partial Summary-Judgment Rulings.
In the next part of this issue, Houston Laureate contends that the trial court
abused its discretion in granting permanent injunctive relief that relied on
erroneous summary-judgment rulings. Specifically, the trial court permanently
enjoined Houston Laureate from
9
Capitalization eliminated.
26
Limiting [the Residents’] use of the Park Laureate Grounds
covered by the [Agreement] to asphalt paths;
Imposing any charge, directly or indirectly, on [the Residents] for
using a personal trainer at the Park Laureate exercise facility, or on
such a trainer employed by [the Residents]; [and]
Imposing any charge on or seeking any indemnity from [the
Residents] for attorney’s fees and court [costs] [Houston Laureate]
has incurred in this proceeding . . . .10
As previously discussed, only the injunction concerning attorney’s fees is
based on an erroneous summary-judgment ruling, and we modify the permanent
injunction accordingly.
C. The Permanent Injunction Must Be Further Modified Only to
Eliminate Vague Language About Unspecified “Interference.”
The trial court also permanently enjoined Houston Laureate from
Interfering with [a Resident’s] rights to use and enjoyment of the
[Agreement] [sic][;]
Suspending or purporting to suspend [a Resident’s] rights under
the [Agreement] based on a purported failure or refusal to pay an
amount due under the [Agreement] when the amount is disputed
and there has been no judicial determination that the amount is
owed; [and]
Threatening criminal prosecution of [a Resident], for trespass or
otherwise, based on a purported suspension of rights under the
[Agreement] . . . .
Of these three categories of enjoined conduct, Houston Laureate has briefed its
challenges to the last two categories together, and we address them in the same
way.11
10
The judgment actually refers to “attorney’s fees and court courts [sic],” which is an
obvious clerical error. The judgment states that it is rendered based on the parties’ prior
stipulations, agreements, and the trial court’s previous rulings for summary judgment, and in the
summary judgment regarding attorney’s fees, the trial court held that sections 2.3 and 3.2 of the
Agreement do not allow Houston Laureate to charge any of the Residents “for attorneys’ fees
and court costs incurred” in this case.
27
1. The injunction against interfering with a Resident’s rights to the use
and enjoyment of the Agreement or of the Recreational Land is
overly broad and non-specific.
To quote from the judgment, the trial court enjoined Houston Laureate from
“[i]nterfering with Plaintiff or Intervenors’ rights to use and enjoyment of the
REA.” “REA” was defined in the judgment to mean the Recreational Easement
Agreement, which we have called simply “the Agreement.” Thus, under the literal
terms of the judgment, Houston Laureate is enjoined from interfering with a
Resident’s right to use and enjoyment of the Agreement.
Houston Laureate contends that this part of the injunction “is not specific
because it does not identify or define the rights at issue other than by generally
referencing the Easement Agreement.”12 In support of this argument, Houston
Laureate cites San Antonio Bar Ass’n v. Guardian Abstract & Title Co., 156 Tex.
7, 15, 291 S.W.2d 697, 702 (1956) (quoting Villalobos v. Holguin, 146 Tex. 474,
480, 208 S.W.2d 871, 875 (1948)). In that case, the Texas Supreme Court
acknowledged its prior holding that an injunction “must be as definite, clear and
precise as possible and when practicable it should inform the defendant of the acts
he is restrained from doing, without calling on him for inferences or conclusions
about which persons might well differ and without leaving anything for further
hearing.” Id. The court added that “the injunction must be in broad enough terms
to prevent repetition of the evil sought to be stopped, whether the repetition be in
11
We have reordered the list so that the categories of enjoined conduct that Houston
Laureate briefed together are addressed last.
12
Houston Laureate also relies on Texas Rule of Civil Procedure 683. See TEX. R. CIV.
P. 683 (“Every order granting an injunction . . . shall set forth the reasons for its issuance; shall
be specific in terms; shall describe in reasonable detail and not by reference to the complaint or
other document, the act or acts sought to be restrained . . . .”). However, this court has held that
“Rule 683 applies to temporary injunctions, not permanent injunctions.” Malekzadeh v.
Malekzadeh, No. 14-05-00113-CV, 2007 WL 1892233, at *2 (Tex. App.—Houston [14th Dist.]
July 3, 2007, pet. denied) (mem. op.).
28
form identical to that employed prior to the injunction or (what is far more likely)
in somewhat different form calculated to circumvent the injunction as written.” Id.
It always has been the case, however, that a trial court abuses its discretion
in rendering a decree of injunction “so broad as to enjoin a defendant from
activities which are a lawful and proper exercise of his rights.” Coyote Lake
Ranch, LLC v. City of Lubbock, No. 14-0572, 2016 WL 3176683, at *10 (Tex.
May 27, 2016) (quoting Holubec v. Brandenberger, 111 S.W.3d 32, 39–40 (Tex
2003)); Villalobos, 146 Tex. at 480, 208 S.W.2d at 875. Under the terms of the
Agreement, Houston Laureate has “the right to impose reasonable rules and
regulations applicable to the Recreational Land and the improvements located
thereon, so long as said rules and regulations do not unreasonably impair or restrict
use of the Recreational Land and are consistently and uniformly applied to all users
of the Recreational Land.”13 But even reasonable rules and regulations interfere to
some extent with the Residents’ rights to the use and enjoyment of the Recreational
Land. We conclude that the trial court abused its discretion in enjoining Houston
Laureate from “interfering with [a Resident’s] rights to use and enjoyment” of the
Recreational Land because this far-reaching prohibition enjoins Houston Laureate
even from the proper exercise of its rights.14 Because this portion of the judgment
is too broad and generalized to stand, we sustain this part of Houston Laureate’s
sixth issue and we modify the judgment to delete this part of the injunction.
13
Emphasis added.
14
Moreover, even if the language were modified to permit Houston Laureate to impose
reasonable rules that interfere with the Residents’ rights, reasonableness usually is a question of
fact about which reasonable minds may differ. Were Houston Laureate to misjudge the
reasonableness of a proposed rule in the future, Houston Laureate’s breach of the contract would
constitute contempt of a court order.
29
2. Houston Laureate failed to preserve its complaint that the
Residents’ pleadings do not support the remaining injunctions.
Houston Laureate’s remaining complaint is directed to the injunctions
prohibiting Houston Laureate from suspending the Residents’ contractual rights for
failing or refusing to pay disputed fees and from threatening the Residents with
criminal prosecution. According to Houston Laureate, these injunctions must fail
because the Residents “did not plead that Houston Laureate could not suspend
rights or remove trespassers from the property.” The Residents alleged exactly that
in their application for temporary and permanent injunction and requested the relief
that the trial court granted, but Houston Laureate contends that the trial court erred
in doing so because a judgment must be supported by the pleadings, and an
“application” is not a “pleading.”
Here, too, the invited-error doctrine prevents us from considering this
argument. The Residents complied with the procedure for obtaining a temporary
injunction by petitioning the trial court for such relief. See TEX. R. CIV. P. 682
(“No writ of injunction shall be granted unless the applicant therefor shall present
his petition to the judge verified by his affidavit and containing a plain and
intelligible statement of the grounds for such relief.”). The Residents filed such a
verified petition, and although it is referred to as an “application,” the use of this
word accurately reflects that it was filed by an “applicant” for injunctive relief as
described in Rule 682. Cf. Cohen v. Landry’s, Inc., 442 S.W.3d 818, 823 (Tex.
App.—Houston [14th Dist.] 2014, pet. denied) (“The nature of a motion is
determined by its substance, not its title or caption.”). After the trial court
announced that it was granting the temporary injunction, Houston Laureate asked
that the trial court render an appealable permanent injunction. Houston Laureate
therefore consented to the rendition of permanent injunctive relief based on the
procedures governing a request for a temporary injunction, and the trial court’s
30
error, if any, in acceding to this request was invited. See also TEX. R. CIV. P. 90
(providing that in a non-jury case, a party who wishes to complain on appeal about
defects or omissions of the pleadings must specifically point them out in writing
and bring them to the trial court’s attention before the judgment is signed, or the
complaint is waived); TEX. R. APP. P. 33.1(a) (requiring complaints to be made in
the trial court as a prerequisite for appellate review); Sherman v. Provident Am.
Ins. Co., 421 S.W.2d 652, 654 (Tex. 1967) (“Insufficiency of pleadings cannot be
raised for the first time in the appellate courts.”); Malekzadeh v. Malekzadeh, No.
14-05-00113-CV, 2007 WL 1892233, at *2 (Tex. App.—Houston [14th Dist.] July
3, 2007, pet. denied) (mem. op.) (same).
Houston Laureate additionally argues that the Residents “did not move for
summary judgment on these issues, and Houston Laureate has not had a trial on the
merits on these issues.” But, as previously discussed, the invited-error doctrine
bars Houston Laureate from complaining on appeal that the case did not proceed to
trial. We accordingly do not address these portions of Houston Laureate’s sixth
issue.
V. CONCLUSION
Our rulings on the issues presented in this appeal are as follows:
A. We conclude that Houston Laureate’s challenges to the trial court’s partial
summary-judgment rulings on Russell’s and Goffman’s standing and
capacity and on Houston Laureate’s contractual right to charge the
Association for some or all of the attorney’s fees that Houston Laureate
incurred in this proceeding are not moot.
31
B. Regarding the merits of Houston Laureate’s challenges to the trial court’s
rulings on the summary-judgment motions and on the motion for new trial,
we affirm the trial court’s rulings
1. denying Houston Laureate’s motion for partial summary judgment
challenging and Russell’s and Goffman’s standing and capacity to
pursue their claims;
2. granting the Residents partial summary judgment on their claim that
Houston Laureate violated the Agreement by charging a licensing fee
for the use of the Recreational Land by an independent fitness trainer
who is a Resident’s visitor or invitee;
3. granting the Residents partial summary judgment on their claim that
Houston Laureate violated the Agreement by requiring the Residents
to remain on the asphalt paths at all times;
4. granting the Residents partial summary judgment on their contention
that the Agreement’s indemnification provision does not authorize
Houston Laureate to charge the Association for the attorney’s fees
Houston Laureate incurred in this case in defending against the
Residents’ requests for injunctive relief; and
5. denying Houston Laureate’s motion for new trial on these issues.
C. We reverse the trial court’s summary-judgment rulings only to the extent
that the trial court
1. ruled on the question, not presented in the summary-judgment motion,
of whether the Agreement’s indemnification provision authorizes
Houston Laureate to charge the Association for the attorney’s fees and
32
court costs Houston Laureate incurred in this case in defending
against claims for monetary damages; and
2. granted summary judgment on the question of whether the
Agreement’s operation-expenses provision authorizes Houston
Laureate to charge the Association for a portion of the attorney’s fees
Houston Laureate incurred in this case.
D. Concerning Houston Laureate’s challenge to the trial court’s permanent
injunction, we hold that
1. Houston Laureate is unable to show that the trial court deprived it of
the right to a jury trial on the merits; and
2. Houston Laureate did not preserve its complaint that the pleadings fail
to support the injunctive relief ordered; but
3. the general injunction against interfering with a Resident’s rights to
the use and enjoyment of the Agreement or of the Recreational Land
is too vague to be enforceable.
E. To the extent that we have reversed the trial court’s partial summary-
judgment rulings,
1. we reverse the permanent injunction based on those rulings to the
same extent; and
2. Houston Laureate’s challenge to the denial of its motion for new trial
on those matters is moot.
Finally, we effectuate these rulings by modifying the portion of the amended
final judgment which lists the permanent injunctive relief ordered. As modified,
that portion of the judgment now reads as follows:
33
Plaintiff Marolyn Russell and Intervenors Joel Goffman and Park
Laureate Place Homeowners’ Association (collectively, “the
Residents”) are entitled to a permanent injunction against Defendant
Houston Laureate Associates, Ltd. (“Houston Laureate”) on their
claims for breach of contract. It is, therefore, ORDERED that
Defendant Houston Laureate Associates, along with its officers,
agents, partners, employees, and all others with whom they are in
privity, be and hereby are permanently enjoined from:
Limiting the Residents’ use of the Park Laureate Grounds
covered by the Recreational Easement Agreement (“REA”) to
asphalt paths;
Imposing any charge, directly or indirectly, on the Residents for
using a personal trainer at the Park Laureate exercise facility, or
on such a trainer employed by a Resident;
Seeking indemnity under section 3.2 of the REA for attorney’s fees and court
costs Houston Laureate has incurred in this proceeding in defending against the
Residents’ requests for injunctive relief;
Otherwise imposing any charge on the Residents, or seeking
indemnity from the Residents, for attorney’s fees and court
costs that Houston Laureate has incurred in this proceeding and
that Houston Laureate has waived its contractual right, if any,
to recover;
Suspending or purporting to suspend a Resident’s rights under
the REA based on a purported failure or refusal to pay an
amount due under the REA when the amount is disputed and
there has been no judicial determination that the amount is
owed; and Threatening criminal prosecution of a Resident, for
trespass or otherwise, based on a purported suspension of rights
under the REA.
/s/ Tracy Christopher
Justice
Panel consists of Justices Christopher, McCally, and Busby.
34