Summary
holding trial court erred in granting declaratory judgment and reversal of attorney's fees award warranted, and specifically remanding issue of attorney's fees to trial court
Summary of this case from In re AjbjkOpinion
NO. 01-16-00082-CV
09-07-2017
JAMES CASTILLE, BONNIE CASTILLE, WILLIAM T. MOORE, III, LINDA MOORE, ORAN HALL, AND CAROL HALL, Appellants v. SERVICE DATSUN, INC., Appellee
On Appeal from the 122nd District Court Galveston County, Texas
Trial Court Case No. 14-CV-0468
MEMORANDUM OPINION
Appellants, James Castille, Bonnie Castille, William T. Moore, III, Linda Moore, Oran Hall, and Carol Hall, challenge the trial court's judgment, entered after a jury trial, in favor of appellee, Service Datsun, Inc. ("Service Datsun"), in appellants' declaratory-judgment action against Service Datsun. In four issues, appellants contend that the evidence is factually insufficient to support the jury's negative finding against them and the trial court erred in granting Service Datsun affirmative declaratory relief, awarding it attorney's fees, and not properly instructing the jury on interpreting deed restrictions.
See TEX. CIV. PRAC. & REM. CODE ANN. §§ 37.001-.011 (Vernon 2015).
See id. § 37.009; TEX. PROP. CODE ANN. § 5.006(a) (Vernon 2014).
See TEX. PROP. CODE ANN. § 202.003(a) (Vernon 2014) ("A restrictive covenant shall be liberally construed to give effect to its purposes and intent.").
We affirm in part and reverse and remand in part.
Background
In their petition, appellants alleged that they own certain real property in the Gulfview subdivision in Galveston County, Texas. When platted, "certain restrictions, conditions and covenants were declared to apply to all property situated within the subdivision." Two of the restrictions read as follows:
• "No shacks, tarpaper building paper covering, tarpaper covered buildings, tin buildings, housetrailers, outhouses, (commonly called privies), old buses, old cars and junk shall . . . be placed upon any of the land covered by this instrument unless changed by the parties hereto."
• "The parties hereto agree that the street designated as Kahla Drive . . . shall be designated a public road and remain open to the beach for all persons owning property along the same."
Appellants further alleged that Service Datsun owns certain property in the Gulfview subdivision. In violation of the above restrictions, it has installed and operates a recreational vehicle park ("RV park") on its property, renting "spaces" and certain recreational vehicles ("RVs") to other third-parties. The restrictions specifically "prohibit the placement of 'housetrailers' on lots within" the Gulfview subdivision, and Service Datsun's use of its property as an RV park "significantly inhibit[s] the use of Kahla Drive by other property owners" and has significantly impacted the values of their properties and their use and enjoyment of their properties.
Appellants sought a declaration that the Gulfview subdivision restrictions prohibit Service Datsun's "continued use of its property for the placement or rental of [RVs]" and such use "constitutes a violation of those restrictions." Appellants requested attorney's fees and a permanent injunction, requiring Service Datsun to "completely remove the offending [RVs] and/or RV [p]ark from its property" and "cease conducting activities [that are] prohibited by the Gulfview subdivision restrictions."
In its first amended answer, Service Datsun generally denied appellants' allegations and asserted certain affirmative defenses. It also counterclaimed for declaratory relief, requesting attorney's fees and seeking a declaration about "the validity, or legal effect, of the deed restrictions" and that "the continued operation of [its RV] park is not prohibited or restricted by" any of the Gulfview subdivision restrictions.
At trial, the trial court admitted into evidence of the Gulfview subdivision restrictions, which include the following:
2. No cows, hogs, cattle, goats or horses shall be housed, stabled or pastured thereon.
3. Any cabin or resident building erected shall cost not less than $3000[.]00 and contain in area not less than 500 square feet of floor space.
4. The front line of the body of any residence or cabin which may be erected on the property shall be at least 25 feet from the front property line or street right-of-way line unless changed by either of the parties hereto in this instrument.
5. All sewage shall be disposed of in a manner which shall not be offensive to other persons and which shall not be in violation of public health laws and shall be contained in septic tanks which drain into a covered drainage field. No flows nor over-flows from sewage shall be permitted to flow into adjoining properties, ditches or streets or roadways.
6. No shacks, tarpaper building paper covering, tarpaper covered buildings, tin buildings, housetrailers, outhouses, (commonly called privies), old buses, old cars and junk shall . . . be placed upon any of the land covered by this instrument unless changed by the parties hereto.
7. All cabins or residences shall be completed on the outside within one year from the date started and must be a minimum of 7 feet above ground level on pier foundations and must be finished on the outside by paint, stain, asbestos siding or better.
8. No trash and garage shall be burned except in metal or masonry containers and all trash and garage shall be kept in covered cans in a sanitary condition[].
9. The parties hereto reserve the right to modify, change[,] alter, or convey any part or portion of the land described in this instrument to which this is an attachment without restrictions, and make such changes in these restrictions as each term advisable.
10. The parties hereto agree that the street designated as Kahla Drive . . . shall be designated a public road and remain open to the beach for all persons owning property along same.
The trial instructed the jury to answer the following question:
Question No. 1Because the jury answered "No" to Question No. 1, it did not answer the two remaining questions about Service Datsun's affirmative defenses.
Did Service Datsun fail to comply with paragraphs 6 or 10 of the restrictions?
You must decide whether or not the term "house trailers" in paragraph 6 of the restrictions applies to Service Datsun's use of its property.
Answer Yes or No[.]
Based on the jury's response to Question No. 1, the trial court entered judgment in favor of Service Datsun, concluding that it was "entitled to judgment declaring that its use of its property as an RV park in the Gulfview [s]ubdivision does not constitute a violation of the restrictive covenants of said subdivision." The court ordered that appellants "take nothing [in] their suit," declared that Service Datsun's "use of [its property in] the Gulfview [s]ubdivision, Crystal Beach, Galveston County, Texas, as an RV park does not violate the restrictive covenants pertaining to the subdivision." And it awarded Service Datsun attorney's fees in the amount of $15,000 for trial, $7,500 in the event of an appeal to the court of appeals, $3,500 in the event that a petition for review is filed with the Texas Supreme Court, and $7,500 if the petition is granted.
Prior to the trial court's rendition of judgment, the parties tried the issue of attorney's fees to the court.
Declaratory Judgment
In their first issue, appellants argue that the trial court erred in granting Service Datsun affirmative declaratory relief because the jury's negative answer to Question No. 1 "meant only that [appellants had] failed to carry their burden to prove a breach [by Service Datsun] of the Gulfview [subdivision] restrictions" and "could not support any affirmative declaratory relief" in favor of Service Datsun.
The Uniform Declaratory Judgments Act ("DJA") generally permits a person who is interested under a deed or other contract, or whose rights, status, or other legal relations are affected by a statute or contract, to obtain a declaration of rights, status, or other legal relations thereunder. TEX. CIV. PRAC. & REM. CODE ANN. § 37.004(a) (Vernon 2015). The purpose of the DJA is "to settle and to afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations; and it is to be liberally construed and administered." Id. § 37.002(b) (Vernon 2015); see also Garcia v. Am. Home Mortg. Serv., Inc., No. 01-13-00359-CV, 2014 WL 3408701, at *3 (Tex. App.—Houston [1st Dist.] July 10, 2014, no pet.) (mem. op.) ("A declaratory-judgment action is a procedural vehicle that can be used to resolve a wide variety of legal disputes.").
We review declaratory judgments under the same standards as other judgments and decrees and look to the procedure used to resolve the issue at trial to determine the appropriate appellate standard of review. See TEX. CIV. PRAC. & REM. CODE ANN. § 37.010 (Vernon 2015); City of Galveston v. Giles, 902 S.W.2d 167, 170 (Tex. App.—Houston [1st Dist.] 1995, no writ). Our review of a trial court's entry of judgment on a jury verdict is a question of law that we review de novo. Arbor Windsor Court, Ltd. v. Weekley Homes, LP, 463 S.W.3d 131, 136 (Tex. App.—Houston [14th Dist.] 2015, pet. denied); see also In re Humphreys, 880 S.W.2d 402, 404 (Tex. 1994) ("[Q]uestions of law are always subject to de novo review."); Resurgence Fin., L.L.C. v. Lawrence, No. 01-08-00341-CV, 2009 WL 3248285, at *2 (Tex. App.—Houston [1st Dist.] Oct. 8, 2009, no pet.) (mem. op.).
In a declaratory-judgment action, a party who asserts an affirmative claim for relief has the burden of proving its allegations. See Saba Zi Expl., LP v. Vaughn, 448 S.W.3d 123, 129 n.11 (Tex. App.—Houston [14th Dist.] 2014, no pet.); Russell v. City of Bryan, 919 S.W.2d 698, 704 (Tex. App.—Houston [14th Dist.] 1996, writ denied); see also Alanis v. US Bank Nat'l Ass'n, 489 S.W.3d 485, 500 (Tex. App.—Houston [1st Dist.] 2016, pet. denied) (party seeking declaration bears burden of establishing entitlement to requested declaratory judgment).
Here, appellants sought a declaration from the trial court that the Gulfview subdivision restrictions prohibit Service Datsun's "continued use of its property for the placement or rental of [RVs]" and such use "constitutes a violation of those restrictions." And Service Datsun sought a declaration about "the validity, or legal effect, of the deed restrictions" and that "the continued operation of [its RV] park is not prohibited or restricted by" any of the restrictions.
The trial court instructed the jury to answer the following question:
Question No. 1In doing so, the trial court also instructed the jury:
Did Service Datsun fail to comply with paragraphs 6 or 10 of the restrictions?
You must decide whether or not the term "house trailers" in paragraph 6 of the restrictions applies to Service Datsun's use of its property.
Answer Yes or No[.]
Answer "yes" or "no" to all questions . . . . A "yes" answer must be based on a preponderance of the evidence unless you are told otherwise. . . .
The term "preponderance of the evidence" means the greater weight of credible evidence presented in this case. If you do not find that a preponderance of the evidence supports a "yes" answer, then answer "no." A preponderance of the evidence is not measured by the number
of witnesses or by the number of documents admitted in evidence. For a fact to be proved by a preponderance of the evidence, you must find that the fact is more likely true than not true.
The jury answered "No" to Question No. 1. And based on the jury's negative answer, the trial court entered judgment against appellants on their claim for declaratory relief and in favor of Service Datsun on its claim for declaratory relief. Specifically, the trial court declared that Service Datsun's "use of [its property in] the Gulfview [s]ubdivision, Crystal Beach, Galveston County, Texas, as an RV park does not violate the restrictive covenants pertaining to the subdivision."
Appellants assert that "affirmative relief cannot spring from a negative answer to a jury question." Instead, "[t]he jury's 'No' answer [to Question No. 1] . . . meant only that [appellants had] failed to carry their burden to prove" that Service Datsun had violated either paragraph 6 or 10 of the Gulfview subdivision restrictions.
In Double Diamond, Inc. v. Saturn, Double Diamond Inc. ("Double Diamond") and White Bluff Property Owners' Association (the "Owners' Association") brought suit against Daniel Saturn, seeking a declaration that a food and beverage program created by Double Diamond and the Owners' Association was proper and in accordance with the Owners' Association's bylaws and Saturn, as a member of the Owners' Association, was subject to the program. 339 S.W.3d 337, 340-41 (Tex. App.—Dallas 2011, pet. denied). In response, Saturn filed a counterclaim, seeking a declaration that the food and beverage program was illegal. Id. at 341.
The trial court instructed the jury to answer the following question:
Are the food and beverage assessments collected by the . . . Owners' Association and paid to Double Diamond . . . and/or its related companies reasonable compensation for services rendered to or for the . . . Owners' Association related or pertaining to one or more of the Association's purposes?Id. at 343. It further instructed the jury that "a 'Yes' answer to a question 'must be based on a preponderance of the evidence. If [it] d[id] not find that a preponderance of the evidence support[ed] a Yes answer, then [it should] answer No.'" Id. at 345. The jury answered, "No." Id. at 342-43 (internal quotations omitted).
You are instructed that the . . . Owners' Association is prohibited from distributing dividends, income, or net earnings, if any, to any member, director or officer of the . . . Owners' Association or any private individual, unless such payment is reasonable compensation for services rendered to or for the . . . Owners' Association related or pertaining to one or more of its purposes.
Based on the jury's negative answer, the trial court declared, in favor of Saturn, that "the food and beverage program was not in accordance with the Owners' Association's bylaws," "the Owners' Association's payments of the food and beverage assessments to Double Diamond and its related companies were not reasonable compensation for the services the companies provided," and "the food and beverage program was 'void ab initio only as to the parties of th[e] suit.'" Id. at 342.
On appeal, Double Diamond and the Owners' Association argued that the jury's answer of "No" did not support the rendition of a declaratory judgment in Saturn's favor because it showed that the jury had only "concluded that a finding that the food and beverage charges 'paid to Double Diamond . . . and/or its related companies' were reasonable compensation for services rendered to the Owners' Association was not supported by a preponderance of the evidence." Id. at 345. The court of appeals agreed, explaining that the jury's negative answer was simply "a finding that there was not a preponderance of the evidence showing [that] the food and beverage charges were reasonable compensation for services rendered to the Owners' Association." Id. at 346. In other words, "[t]he jury's answer [wa]s an affirmative finding that [Double Diamond and the Owners' Association] did not carry their burden of proof to show [that] the food and beverage program complied with the bylaws because the charges constitute[d] reasonable compensation." Id.; see also C. & R. Transp., Inc. v. Campbell, 406 S.W.2d 191, 194 (Tex. 1966) (jury's negative answer "nothing more than a failure or refusal by the jury to find from a preponderance of the evidence that the plaintiff [d]id drive his pickup from the shoulder onto the highway immediately prior to the collision, and means, in law, that the defendant failed to carry its burden of proving the fact"); Indigo Oil, Inc. v. Wiser Oil Co., No. 05-96-00984-CV, 1998 WL 839591, at *16 (Tex. App.—Dallas Dec. 7, 1998, pet. denied) (not designated for publication) (relating to declaratory judgment, "[a] jury's negative answer to a question means only [that] the party with the burden of proof on the issue failed to carry its burden"); Burns v. Res. Trust Corp., 880 S.W.2d 149, 154 (Tex. App.—Houston [14th Dist.] 1994, no writ). Notably, the court explained that the jury's negative answer was "not an affirmative jury finding that [Saturn had] carried his burden of proof to show that the food and beverage program violated the bylaws because the charges did not constitute reasonable compensation." Double Diamond, 339 S.W.3d at 346; see also Grenwelge v. Shamrock Reconstructors, Inc., 705 S.W.2d 693, 694 (Tex. 1986); C. & R. Transp., 406 S.W.2d at 194 (trial court treating negative answer as positive finding of converse constituted "a misinterpretation of the issue and the answer"); Blizzard v. Nationwide Mut. Fire Ins. Co., 756 S.W.2d 801, 806 (Tex. App.—Dallas 1988, no writ) ("[T]he jury's negative answer does not establish the contrary of the question asked."). Thus, the court of appeals held that the trial court erred in granting Saturn affirmative declaratory relief based on the jury's answer of "No" to the question submitted. Double Diamond, 339 S.W.3d at 346.
Here, as in Double Diamond, both appellants and Service Datsun sought declarations in their favor. See id. at 341. Essentially, appellants sought a declaration that Service Datsun's use of its property as an RV park and the placement of RVs on its property violate the Gulfview subdivision restrictions. Service Datsun sought a declaration that its continued use of its property as an RV park complied with the Gulfview subdivision restrictions. The trial court then submitted a single question to the jury, asking whether "Service Datsun [had] fail[ed] to comply with paragraphs 6 or 10 of the [Gulfview subdivision] restrictions." The trial court instructed the jury that it must "[a]nswer 'yes' or 'no' to all questions," "[a] 'yes' answer must be based on a preponderance of the evidence," and if it "d[id] not find that a preponderance of the evidence support[ed] a 'yes' answer, then [it should] answer 'no.'" The jury answered, "No."
We note that the trial court did submit to the jury two additional questions regarding Service Datsun's affirmative defenses. Because the jury answered "No" to Question No. 1, however, it did not respond to the remaining two questions, which are not at issue in this appeal.
As explained in Double Diamond, the jury's answer to Question No. 1 constitutes a finding that there is not a preponderance of the evidence showing that Service Datsun's use of its property as an RV park and the presence of RVs on its property violated either paragraph 6 or 10 of the Gulfview subdivision restrictions. See id. at 346; see also C. & R. Transp., 406 S.W.2d at 194. In other words, the jury's answer constitutes an affirmative finding that appellants did not carry their burden of proof to show that Service Datsun had violated either paragraph 6 or 10 of the restrictions. See Double Diamond, 339 S.W.3d at 346; Indigo Oil, 1998 WL 839591, at *16. Notably, it does not constitute an affirmative finding that Service Datsun carried its burden of proof to show that its use of its property as an RV park complies with all of the restrictions. Double Diamond, 339 S.W.3d at 346; Blizzard, 756 S.W.2d at 806.
Service Datsun argues that the trial court, based on the jury's negative response to Question No. 1, properly entered a declaratory judgment in its favor because it never had the burden to prove that its operation of the RV park on its property complied with the Gulfview subdivision restrictions. In doing so, Service Datsun relies on McCart v. Cain, 416 S.W.2d 463 (Tex. Civ. App.—Fort Worth 1967, writ ref'd n.r.e.)), Ross v. American Radiator & Standard Sanitary Corp., 507 S.W.2d 806 (Tex. App.—Dallas 1974, writ ref'd n.r.e.), and Dyegard Land Partnership v. Hoover, 39 S.W.3d 300 (Tex. App.—Fort Worth 2001, no pet.).
In McCart, Alice McCart, a property owner, brought a declaratory-judgment action against various other property owners (collectively, the "defendants"), seeking a declaration that "there were no deed restrictions whatsoever of record" against her property on which she sought to build a townhouse condominium project. 416 S.W.2d at 464. In response, the defendants asserted that their properties, as well as McCart's, had been developed "under a general scheme or plan whereby all of [the properties] w[ere] [to] be devoted to the erection of single one-family residences." Id. After a bench trial, the court entered judgment that "all of the [properties] which were the subject matter of [McCart's] declaratory[-]judgment action were burdened with a restrictive covenant limiting the use of [the properties] to single one-family residences." Id.
On appeal, McCart argued that the trial court had erred in "refusing to find that the [b]urden of [p]roof was upon the defendants to prove a general scheme or plan of development." Id. The court of appeals agreed, explaining that "in order to claim or enforce a restrictive covenant on another's land, it is necessary for the party claiming the restriction to show its existence and further that it was for the benefit of his land." Id. at 465. Thus, although McCart, the plaintiff, had filed the declaratory-judgment action, the defendants still had the burden "to establish that . . . [McCart]'s predecessor in title had formulated a general scheme or plan for their benefit and that [the defendants] had relied upon it." Id.
Years later, the Fort Worth Court of Appeals again dealt with a similar situation in Dyegard. There, property owners, Robert and Jackie Hoover (collectively, the "Hoovers"), brought a declaratory-judgment action against a developer, Dyegard Land Partnership ("Dyegard"), seeking a declaration that the "[c]ovenants, [c]onditions and [r]estrictions applicable" to their property "d[id] not prohibit [them from] drilling a water well." 39 S.W.3d at 303-05 (internal quotations omitted). The Hoovers then moved for summary judgment on their declaratory-relief claim, which the trial court granted. Id. at 305. In affirming the trial court's judgment, the court of appeals, while citing McCart, noted that in a declaratory-judgment action brought by a plaintiff, "in which the defendant seeks to enforce a restrictive covenant, the defendant retains the burden of proof to establish that the necessary legal steps ha[d] been taken to render such restrictions effective, binding, and mutually enforceable." Id. at 308.
As other appellate courts have recognized, McCart and its progeny establish that where a plaintiff brings an action seeking a declaration of non-liability, courts must "ignore the formal positions of the parties, and place the burden of proof upon the party asserting the affirmative" claim. Ross, 507 S.W.2d at 810; see, e.g., Stewart v. Angelina Cty., No. 12-06-00124-CV, 2007 WL 677865, at *3 n.2 (Tex. App.—Tyler Mar. 7, 2007, pet. denied) (mem. op.) (citing McCart and noting "[t]he burden of proof is not determined by the positions of the parties on the docket as plaintiff or defendant in a declaratory[-]judgment action"); Americo Energy Res., LLC v. State, No. 13-05-460-CV, 2006 WL 177626, at *2 (Tex. App.—Corpus Christi Jan. 26, 2006, no pet.) (mem. op.) ("In a declaratory[-]judgment action, '[t]he ultimate burden of proof is upon the party who, upon the pleadings, asserts the affirmative claim, and who, therefore, in the absence of evidence will be defeated, and hence is not determined by the position of the parties on the docket as plaintiff or defendant in the declaratory action.'" (second alteration in original) (quoting McCart, 416 S.W.2d at 466)); Russell, 919 S.W.2d at 704 (citing McCart and recognizing "in a declaratory[-]judgment action, the party denominated as plaintiff may not have the burden of proof").
Although appellants did have the burden of proving their affirmative claim for declaratory relief, i.e., that Service Datsun's use of its property as an RV park and the placement of RVs on its property violate either paragraph 6 or 10 of the Gulfview subdivision restrictions, Service Datsun's reliance on McCart and its progeny is misplaced. In contrast to the instant case, McCart addressed a situation where only one party, the plaintiff, had sued for a declaratory judgment regarding non-liability; therefore, the court of appeals emphasized that courts must "ignore the formal positions of the parties, and place the burden of proof upon the party asserting the affirmative" claim. See Ross, 507 S.W.2d at 810 (discussing McCart). Here, however, both appellants and Service Datsun have sued for declaratory relief.
As noted above, in a declaratory-judgment action, a party asserting an affirmative claim for relief has the burden of proving its allegations. See Vaughn, 448 S.W.3d at 129 n.11; Russell, 919 S.W.2d at 704; see also Alanis, 489 S.W.3d at 500 (party seeking declaration bears burden of establishing entitlement to requested declaratory judgment). Thus, when both parties, i.e., both the plaintiff and the defendant, have filed actions for declaratory relief, "both parties [are] required to carry their own burden on their own request for relief." Giles, 902 S.W.2d at 170, 172 (plaintiff sought declaration police department's residency requirement "ineffective as written and illegal as enforced, and that the provisions of chapter 150.021 apply," while defendant counterclaimed for declaration "police department['s] rule [was] valid and enforceable"); see also Indigo Oil, 1998 WL 839591, at *16 ("If both parties sue for declaratory relief on an issue, each must carry its own burden on its request for relief." (emphasis added)). And if either the plaintiff or the defendant does not carry its burden, then it is not entitled to declaratory relief. Giles, 902 S.W.2d at 172; see also Indigo Oil, 1998 WL 839591, at *16-17.
To qualify as a claim for affirmative relief under the DJA, "a defensive pleading must allege that the defendant has a cause of action, independent of the plaintiff's claim, on which [it] could recover benefits, compensation or relief, even [if] the plaintiff . . . abandon[s] his cause of action or fail[s] to establish it." BHP Petroleum Co. v. Millard, 800 S.W.2d 838, 841 (Tex. 1990) (internal quotations omitted) ("[A] defensive declaratory judgment may present issues beyond those raised by the plaintiff."); see also Indian Beach Prop. Owners' Ass'n v. Linden, 222 S.W.3d 682, 701 (Tex. App.—Houston [1st Dist.] 2007, no pet.).
In Indian Beach, Indian Beach Property Owners' Association (the "Owners' Association") brought suit against Mary and B.J. Linden (collectively, the "Lindens") after the Lindens built a fence on Mary's property. 222 S.W.3d at 688-90. The Owners' Association asserted that the Lindens had violated certain deed restrictions in building the fence without first obtaining approval. Id. at 690. The Lindens then filed a counterclaim against the Owners' Association, seeking a declaration from the trial court that the construction of the fence was in compliance with the deed restrictions applicable to Mary's property. Id.
On appeal, we addressed the issue of whether the Lindens' counterclaim for a declaratory judgment constituted a claim for affirmative relief. Id. at 700-02. In holding that it did, we explained that the Lindens' counterclaim sought a declaration that they were "in compliance with the contractual deed restrictions regarding the construction of their fence." Id. at 702 (internal quotations omitted). And because the Lindens' claim for declaratory relief "involve[d] the interpretation of deed restrictions," and thus, the parties' ongoing and future relationship, the Lindens had "stated a cause of action on which they could recover benefits, compensation, or relief [even] if [the Owners' Association] abandoned or failed to establish its cause of action." Id. (citing Millard, 800 S.W.2d at 841-42); see also Hous. Aeronautical Heritage Soc., Inc. v. Graves, 01-12-00443-CV, 2013 WL 6506301, at *5-6 (Tex. App.—Houston [1st Dist.] Dec. 10, 2013, no pet.) (mem. op.) (although defendants "sought determinations about operation and governance . . . , which are matters [that plaintiff] put before the trial court in its claim for declaratory relief, [defendants] stated a cause of action on which [they] could recover relief [even] if [plaintiff] abandoned or failed to prove its claims"); Cont'l Homes of Tex., L.P. v. City of San Antonio, 275 S.W.3d 9, 21 (Tex. App.—San Antonio 2008, pet. denied) ("Continental's declaratory judgment counterclaim is an independent cause of action for affirmative relief that has greater ramifications than the City's suit to prohibit further tree removal[.]"); Owens v. Ousey, 241 S.W.3d 124, 132-33 (Tex. App.—Austin 2007, pet. denied) ("[I]n the context of suits asserting breaches of contracts or deeds, declaratory counterclaims seeking construction of such instruments may constitute claims for affirmative relief because . . . they concern the parties' ongoing and future relationship.").
Here, as in Indian Beach, Service Datsun, in its counterclaim for declaratory relief, sought a declaration about "the validity, or legal effect, of the [Gulfview subdivision] restrictions" and that "the continued operation of [its RV] park is not prohibited or restricted by" any of the restrictions. In doing so, Service Datsun stated a cause of action on which it could recover benefits, compensation, or relief even if appellants had abandoned or failed to establish their own cause of action. See Indian Beach, 222 S.W.3d at 702; see also Friedman v. Rozzlle, No. 13-12-00779-CV, 2013 WL 6175318, at *10-11 (Tex. App.—Corpus Christi Nov. 12, 2013, pet. denied) (mem. op.) ("[E]ven had [party] nonsuited her cross-claim, [other party] could have pursued its request for a declaration that it had no general duty to enforce the conditions and covenants of the Declaration."); Owens, 241 S.W.3d at 132-33. Accordingly, Service Datsun constituted a party seeking affirmative relief in this case, and as such, it had the burden of proving its allegations. See Vaughn, 448 S.W.3d at 129 n.11; Russell, 919 S.W.2d at 704; see also Giles, 902 S.W.2d at 172; Indigo Oil, 1998 WL 839591, at *16-17.
Although Service Datsun had the burden of proving its entitlement to declaratory relief, appellants argue that because it "did not submit any question to the jury or obtain an affirmative response to a jury question which would have supported any declaratory relief in its favor," it waived its claim for such relief and the trial court erred in granting it affirmative declaratory relief. Service Datsun asserts that Question No. 1 "included [its] request for declaratory relief."
It is the responsibility of the party with the burden of proof on a ground of recovery to request that the issue be submitted to the jury. TEX. R. CIV. P. 279; Robertson v. Odom, 296 S.W.3d 151, 159 (Tex. App.—Houston [14th Dist.] 2009, no pet.); Cameron Cty. v. Velasquez, 668 S.W.2d 776, 781 (Tex. App.—Corpus Christi 1984, writ ref'd n.r.e.). And unless conclusively established by the evidence, that ground for recovery is waived if no element of the ground of recovery is submitted to the jury. TEX. R. CIV. P. 279; Robertson, 296 S.W.3d at 159; see also J & C Drilling Co. v. Salaiz, 866 S.W.2d 632, 636 (Tex. App.—San Antonio 1993, no writ).
Service Datsun sought a declaration about "the validity, or legal effect, of the [Gulfview subdivision] restrictions" and that its "continued operation of [its RV] park is not prohibited or restricted by" any of the restrictions. But, Question No. 1 asked the jury only whether "Service Datsun [had] fail[ed] to comply with paragraphs 6 or 10 of the restrictions?" The declaration sought by Service Datsun, and granted by the trial court, was much broader than the limited question posed to the jury. Service Datsun simply did not submit a question to the jury that would support its claim for declaratory relief. Thus, it waived its claim for such relief. See TEX. R. CIV. P. 279.
Notably, the trial court, in its judgment, did not limit its declaration to the confines of Question No. 1, but declared that Service Datsun's "use of [its property in] the Gulfview [s]ubdivision, Crystal Beach, Galveston County, Texas, as an RV park does not violate the restrictive covenants pertaining to the subdivision."
Service Datsun admits in its briefing that its request for declaratory relief sought "additional relief not requested by [a]ppellants." And it does not argue that the evidence conclusively establishes its claim for declaratory relief. See TEX. R. CIV. P. 279.
In sum, because appellants and Service Datsun both filed actions for declaratory relief, "both parties were required to carry their own burden on their own request for relief." Giles, 902 S.W.2d at 172. Here, the jury was presented with one question, "Did Service Datsun fail to comply with paragraphs 6 or 10 of the [Gulfview subdivision] restrictions?," which it answered in the negative. The jury's answer to Question No. 1 is a finding that appellants failed to prove by a preponderance of the evidence that Service Datsun's use of its property as an RV park and the presence of RVs on its property violate either paragraph 6 or 10 of the restrictions. See Double Diamond, 339 S.W.3d at 346. The jury's response to Question No. 1 does not constitute an affirmative finding that Service Datsun carried its burden of proving that its continued use of its property as an RV park complies with all of the Gulfview subdivision restrictions. Id. Further, because Service Datsun did not submit a question to the jury that would support its claim for declaratory relief, it was not entitled to a declaratory judgment in its favor. See TEX. R. CIV. P. 279.
Accordingly, we hold that the trial court erred in granting Service Datsun affirmative declaratory relief and declaring that Service Datsun's "use of [its property in] the Gulfview [s]ubdivision, Crystal Beach, Galveston County, Texas, as an RV park does not violate the restrictive covenants pertaining to the subdivision."
We sustain appellants' first issue.
Attorney's Fees
In their second issue, appellants argue that the trial court erred in awarding Service Datsun its attorney's fees because it is not entitled to them under the DJA and it "did not bring an action based on a breach of a restrictive covenant." See TEX. CIV. PRAC. & REM. CODE ANN. § 37.009 (Vernon 2015) (recovery of attorney's fees under DJA); TEX. PROP. CODE ANN. § 5.006(a) (Vernon 2014) (recovery of attorney's fees in "action based on [a] breach of a restrictive covenant pertaining to real property").
Generally, attorney's fees are not recoverable in Texas unless allowed by contract or statute. Dall. Cent. Appraisal Dist. v. Seven Inv. Co., 835 S.W.2d 75, 77 (Tex. 1992); Indian Beach, 222 S.W.3d at 705. Whether attorney's fees are available under a particular statute is a question of law, which we review de novo. Holland v. Wal-Mart Stores, Inc., 1 S.W.3d 91, 94 (Tex. 1999); Indian Beach, 222 S.W.3d at 705-06. 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. Tanglewood Homes Ass'n v. Feldman, 436 S.W.3d 48, 72 (Tex. App.—Houston [14th Dist.] 2014, pet. denied); 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. Tex. Mut. Ins. Co., 214 S.W.3d at 476.
Texas Property Code section 5.006 provides that "[i]n an action based on [a] breach of a restrictive covenant pertaining to real property, the court shall allow [the] prevailing party who asserted the action reasonable attorney's fees . . . ." TEX. PROP. CODE ANN. § 5.006(a). Only a party who successfully prosecutes its claim alleging a breach of a restrictive covenant is entitled to an award of attorney's fees under section 5.006. Tanglewood, 436 S.W.3d at 73; see also Meyerland Cmty. Improvement Ass'n v. Belilove, 624 S.W.2d 620, 620-21 (Tex. App.—Houston [14th Dist.] 1981, writ ref'd n.r.e.). In other words, it is the party who successfully asserts a claim of breach of a restrictive covenant that is entitled to attorney's fees under section 5.006; a party who successfully defends a cause of action for breach of a restrictive covenant is not able to recover fees under the statute. City of Pasadena v. Gennedy, 125 S.W.3d 687, 700-01 (Tex. App.—Houston [1st Dist.] 2003, pet. denied) ("One defending such a suit is not entitled to attorney's fees under section 5.006."); Pebble Beach Prop. Owners' Ass'n v. Sherer, 2 S.W.3d 283, 291-92 (Tex. App.—San Antonio 1999, pet. denied) ("Since Smith was the defending party, he [was] not entitled to recover attorneys' fees" under section 5.006); see also Indian Beach, 222 S.W.3d at 706 n.1.
Service Datsun has not argued that it is entitled to attorney's fees under Texas Property Code section 5.006. See TEX. PROP. CODE ANN. § 5.006(a). However, we address the applicability of this statute because appellants have asserted that the trial court awarded Service Datsun attorney's fees pursuant to section 5.006 and such an award was improper.
Here, Service Datsun is not the party "who asserted the action" "based on [a] breach of a restrictive covenant," and it did not plead for or request attorney's fees based on the property code. See TEX. PROP. CODE ANN. § 5.006(a). Instead, it asserted a counterclaim for declaratory relief under the DJA. See City of Pasadena, 125 S.W.3d at 700-01 (defendant not entitled to fees under section 5.006 because not party "who asserted the action," it only asserted counterclaims under DJA, and did not request fees under property code (internal quotations omitted)). Because Service Datsun did not assert an action for breach of a restrictive covenant and did not request attorney's fees pursuant to the property code, we conclude that it is not entitled to recover, and the trial court could not award, attorney's fees under section 5.006. See id.
However, Service Datsun asserts that it properly sought attorney's fees under the DJA. The DJA provides that a trial court may award costs and reasonable attorney's fees when doing so is equitable and just. TEX. CIV. PRAC. & REM. CODE ANN. § 37.009; see also City of Pasadena, 125 S.W.3d at 701. The DJA "entrusts attorney fee awards to the trial court's sound discretion, subject to the requirements that any fees awarded be reasonable and necessary, which are matters of fact, and to the additional requirements that fees be equitable and just, which are matters of law." Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998). "Unreasonable fees cannot be awarded [under the DJA], even if the [trial] court believed them just, but the court may conclude that it is not equitable or just to award even reasonable and necessary fees." Id. A party need not prevail to be awarded attorney's fees under the DJA. City of Pasadena, 125 S.W.3d at 701; Hunt v. Baldwin, 68 S.W.3d 117, 135 (Tex. App.—Houston [14th Dist.] 2001, no pet.).
Appellants argue that Service Datsun may not recover attorney's fees under the DJA because its counterclaim for declaratory relief was nothing "more than a restatement of [its] defenses" and it did not allege a "cause of action[] independent of [appellants'] claim."
"[A] party cannot use the [DJA] 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 Texas Supreme Court has explained,
If 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 [section] 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 v. RIHR Inc., 308 S.W.3d 444, 454 (Tex. App.—Dallas 2010, pet. denied) ("It is an abuse of discretion to award attorney's fees . . . when the [DJA] is relied upon solely as a vehicle to recover attorney's fees.").
Contrary to appellants' assertion, however, and as we discussed in regard to appellants' first issue, Service Datsun's counterclaim for declaratory relief constituted an independent cause of action and is not merely "a restatement of [its] defenses" or a mirror-image of appellants' claim for relief. In its counterclaim, Service Datsun sought a declaration about "the validity, or legal effect, of the [Gulfview subdivision] restrictions" and that "the continued operation of [its RV] park is not prohibited or restricted by" any of the restrictions. This is a cause of action on which Service Datsun could recover benefits, compensation, or relief even if appellants had abandoned or failed to establish their own cause of action. Cf. Indian Beach, 222 S.W.3d at 702, 705-07 (affirming defendants' award of attorney's fees under DJA where defendants' counterclaim for declaratory relief concerned interpretation of deed restrictions and constituted independent affirmative claim). Because Service Datsun asserted an independent affirmative claim for declaratory relief, it is not prohibited, as appellants assert, from recovering attorney's fees under the DJA.
Further, we note that even were we to conclude that Service Datsun's declaratory claim is duplicative of the claim already raised by appellants in their declaratory-judgment action, which it is not, a trial court is not prohibited from awarding attorney's fees to a defendant that asks the court to make a corresponding contrary declaration in a case where the plaintiffs have also brought a claim for declaratory relief. See Wash. Square Fin., LLC v. RSL Funding, LLC, 418 S.W.3d 761, 775-76 (Tex. App.—Houston [14th Dist.] 2013, pet. denied); see also Wells Fargo Bank v. Murphy, 458 S.W.3d 912, 916 (Tex. 2015) (defendant could properly request and obtain attorney's fees under section 37.009 in response to plaintiff's claim for declaratory relief); Save Our All., Inc. v. Lazy Nine Mun. Util., 198 S.W.3d 300, 318 (Tex. App.—Texarkana 2006, pet. denied) ("Once a plaintiff claims relief under the [DJA], the mirror-image rule does not prohibit the trial court from awarding attorney's fees even if the defendant's counterclaim for declaratory relief only duplicates the claims already raised."). This is because the DJA authorizes trial courts to determine that it is equitable and just to award attorney's fees to either party, so a defendant who raises a mirror-image counterclaim in response to a plaintiff's declaratory-judgment claim cannot be said to have raised the counterclaim solely to pave the way for an award of otherwise-impermissible attorney's fees. See Wash. Square Fin., 418 S.W.3d at 775-76; see also Save Our Springs All., 189 S.W.3d at 318. Accordingly, we conclude that the trial court was not prohibited from awarding Service Datsun its attorney's fees under the DJA. See TEX. CIV. PRAC. & REM. CODE ANN. § 37.006(a).
Appellants next assert that even if the DJA allows for Service Datsun to recover attorney's fees in this case, it still was required to prove that the fees sought were reasonable, necessary, equitable, and just, and Service Datsun was "oblig[ated] to segregate [its] fees from the fees attributable to other causes of actions" alleged in the proceedings.
We note that the DJA does not require an award of attorney's fees. Such an award is within the trial court's discretion, and its decision will not be reversed on appeal absent a clear showing that it abused its discretion. Bocquet, 972 S.W.2d at 20; 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.); SAVA gumarska in kemijska industria d.d. v. Advanced Polymer Scis., Inc., 128 S.W.3d 304, 323 (Tex. App.—Dallas 2004, no pet.). Thus, in exercising its discretion in a declaratory-judgment action, a trial court may award attorney's fees to the prevailing party, may decline to award attorney's fees to either party, or may award attorney's fees to the nonprevailing party, regardless of which party sought declaratory relief. Brookshire Katy Drainage Dist. v. Lily Gardens, LLC, 333 S.W.3d 301, 313-14 (Tex. App.—Houston [1st Dist.] 2010, pet. denied); Advanced Polymer Scis., 128 S.W.3d at 323-24.
The trial court, after finding that Service Datsun was entitled to a declaratory judgment in its favor, awarded to Service Datsun attorney's fees in the amount of $15,000 for trial, $7,500 in the event of an appeal to the court of appeals, $3,500 in the event that a petition for review is filed with the Texas Supreme Court, and $7,500 if the petition is granted. Although an award of attorney's fees under the DJA is not conditioned upon a party prevailing on its own declaratory claim, the award, after a declaratory judgment is reversed on appeal, may no longer be equitable or just. See Advanced Polymer Scis., 128 S.W.3d at 324; see also Bank of N.Y. Mellon, 403 S.W.3d at 907 ("Because our disposition on appeal substantially affects the trial court's judgment, reversal of the attorney's fees award . . . is warranted so that on remand the trial court can address what costs and attorney's fees, if any, should be awarded . . . under the [DJA]."); Scottsdale Ins. Co. v. Travis, 68 S.W.3d 72, 77 (Tex. App.—Dallas 2001, pet. denied) ("In light of our disposition of this case, the trial court may wish to reconsider its ruling on attorney's fees.").
Here, we have sustained appellant's first issue, holding that the trial court erred in granting Service Datsun affirmative declaratory relief. Accordingly, we conclude that reversal of the trial court's award of attorney's fees to Service Datsun is warranted as well. See Advanced Polymer Scis., 128 S.W.3d at 324-25; see also Bank of N.Y. Mellon, 403 S.W.3d at 907; Scottsdale Ins. Co., 68 S.W.3d at 77-78. And we remand the issue of whether to award attorney's fees under the DJA to the trial court for reconsideration in light of our decision. See Morath v. Tex. Taxpayer & Student Fairness Coal., 490 S.W.3d 826, 885 (Tex. 2006) ("Where the extent to which a party prevailed has changed on appeal, our practice has been to remand the issue of attorney fees to the trial court for reconsideration of what is equitable and just."); see also Kachina Pipeline Co. v. Lillis, 471 S.W.3d 445, 455 (Tex. 2015); Advanced Polymer Scis., 128 S.W.3d at 324-25.
We sustain appellants' second issue in part.
Because of our disposition of this issue, we need not address appellants' argument regarding the segregation of attorney's fees. See SAVA gumarska in kemijska industria d.d. v. Advanced Polymer Scis., Inc., 128 S.W.3d 304, 324 (Tex. App.—Dallas 2004, no pet.); City of Pasadena v. Gennedy, 125 S.W.3d 687, 701-02 (Tex. App.—Houston [1st Dist.] 2003, pet. denied).
Jury Charge
In their third issue, appellants argue that the trial court erred in denying their request that it instruct the jury that "[d]eed restrictions are to be construed liberally to give effect to their purpose and intent" because although it "directed" the jury "to interpret the term 'house trailers'" in answering Question No. 1, it left the jury "entirely to its own devices about how to proceed with that task." See TEX. PROP. CODE ANN. § 202.003(a) (Vernon 2014). They assert that their requested instruction is "an accurate statement of applicable law, supported by the pleadings and evidence," and the trial court's "refusal to give the . . . instruction on [a] contested, critical issue was reasonably calculated to and probably did cause the rendition of an improper judgment."
A trial court "shall submit such instructions and definitions as shall be proper to enable the jury to render a verdict." TEX. R. CIV. P. 277. We review the decision of whether to submit or refuse a particular instruction for an abuse of discretion. Shupe v. Lingafelter, 192 S.W.3d 577, 579 (Tex. 2006); Hamid v. Lexus, 369 S.W.3d 291, 295 (Tex. App.—Houston [1st Dist.] 2011, no pet.). A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to any guiding rules or principles, or clearly fails to analyze or apply the law correctly. Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex. 2003); Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). "The essential inquiry is whether the instruction or definition aids the jury in answering the questions." Hamid, 369 S.W.3d at 295. A court has wide latitude to determine the sufficiency of explanatory instructions and definitions. Plainsman Trading Co. v. Crews, 898 S.W.2d 786, 791 (Tex. 1995); Hamid, 396 S.W.3d at 295. When a trial court refuses to submit a requested instruction, the question on appeal is whether the instruction was reasonably necessary to enable the jury to render a proper verdict. See TEX. R. CIV. P. 277, 278; Tex. Workers' Comp. Ins. Fund v. Mandlbauer, 34 S.W.3d 909, 912 (Tex. 2000).
An instruction is proper if it assists the jury, accurately states the law, and finds support in the pleadings and evidence. Transcon. Ins. Co. v. Crump, 330 S.W.3d 211, 221 (Tex. 2010); Hamid, 369 S.W.3d at 295. Here, the trial court, in regard to Question No. 1, instructed the jury that in determining whether "Service Datsun fail[ed] to comply with paragraphs 6 or 10 of the [Gulfview subdivision] restrictions," it also had to "decide whether or not the term 'house trailers' in paragraph 6 of the restrictions applies to Service Datsun's use of its property." Appellants then sought to have the trial court, in regard to Question No. 1, instruct the jury that "[d]eed restrictions are to be construed liberally to give effect to their purpose and intent." The trial court denied appellant's request.
Appellants' requested instruction is based on Texas Property Code section 202.003, which provides: "A restrictive covenant shall be liberally construed to give effect to its purposes and intent." TEX. PROP. CODE ANN. § 202.003(a). However, appellants have failed to provide this Court with a clear argument or authority supporting their entitlement to such an instruction. See TEX. R. APP. P. 38.1(i) (appellate brief "must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record"). They do not cite any authority indicating that such an instruction is warranted or typically given in circumstances such as the ones presented in this case. Further, appellants have failed to address Service Datsun's assertion that section 202.003 is inapplicable in this case; instead, they merely assume that the statute applies without explanation as to their reasoning.
Appellate issues are "waived if . . . appellant[s] fail[] to support [their] contention[s] by citations to appropriate authority" or their "brief fails to contain a clear argument for the contentions made." Izen v. Comm'n for Lawyer Discipline, 322 S.W.3d 308, 321-22 (Tex. App.—Houston [1st Dist.] 2010, pet. denied) (internal quotations omitted); see also Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284-85 (Tex. 1994); Thompson v. HSBC Bank USA, No. 01-14-00589-CV, 2015 WL 3981799, at *3 (Tex. App.—Houston [1st Dist.] June 30, 2015, no pet.) (mem. op.) (issue waived where appellants did not "present[ ] a cogent argument to support [their] issue"). "It is appellant[s'] burden to discuss [their] assertions of error," and an appellate court has "no duty—or even right—to perform an independent review of the record and applicable law to determine whether there was error." Bullock v. Am. Heart Ass'n, 360 S.W.3d 661, 665 (Tex. App.—Dallas 2012, pet. denied). Bare assertions of error are simply not enough. Washington v. Bank of N.Y., 362 S.W.3d 853, 854 (Tex. App.—Dallas 2012, no pet.); Sullivan v. Bickel & Brewer, 943 S.W.2d 477, 486 (Tex. App.—Dallas 1995, writ denied) (appellant waived complaints not supported by argument and authority).
Accordingly, we hold that appellants' have waived their jury-charge complaint. See TEX. R. APP. P. 38.1(i); see, e.g., Penhollow Custom Homes, LLC v. Kim, 320 S.W.3d 366, 376 (Tex. App.—El Paso 2010, no pet.) (appellants waived complaint trial court erred in not instructing jury on mitigation of damages where they failed to cite applicable authority or advance any substantive analysis); Citizens Nat'l Bank v. Allen Rae Invs., Inc., 142 S.W.3d 459, 489-90 (Tex. App.—Fort Worth 2004, no pet.) (appellant waived jury charge error by failing to include proper citation to record).
Factual Sufficiency
In their fourth issue, appellants argue that the jury's finding that Service Datsun did not fail to comply with either paragraph 6 or 10 of the Gulfview subdivision restrictions is against the great weight and preponderance of the evidence because it is undisputed that a "menagerie of trailers and vehicles occup[ied] the Service Datsun property" and "there must have been a violation of the Gulfview [subdivision] restrictions." Service Datsun asserts that appellants waived this issue by not raising it in a motion for new trial. See TEX. R. CIV. P. 324(b)(2).
In their reply brief, appellants concede that their post-trial "Motion to Amend or Modify Judgment" "did not raise [their] factual sufficiency" challenge. See In re United Servs. Auto. Ass'n, 446 S.W.3d 162, 172 (Tex. App.—Houston [1st Dist.] 2014, orig. proceeding) ("Whether a finding is against the great weight and preponderance of the evidence is a factual sufficiency question . . . ." (internal quotations omitted)). Accordingly, we hold that appellants have waived their factual-sufficiency complaint. See TEX. R. CIV. P. 324(b)(2); Cecil v. Smith, 804 S.W.2d 509, 510-12 (Tex. 1991).
Conclusion
We reverse the portion of the trial court's judgment declaring that Service Datsun's "use of [its property in] the Gulfview [s]ubdivision, Crystal Beach, Galveston County, Texas, as an RV park does not violate the restrictive covenants pertaining to the subdivision." We also reverse the portion of the trial court's judgment awarding Service Datsun attorney's fees. And we remand the issue of whether to award attorney's fees under the DJA to the trial court for further proceedings consistent with this opinion. We affirm the remainder of the trial court's judgment.
Terry Jennings
Justice Panel consists of Chief Justice Radack and Justices Jennings and Bland.