                                  NO. 12-18-00261-CV

                          IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

 RONALD RODDY, JAY BLINT, PATSY                   §      APPEAL FROM THE 402ND
 JONES, KENNETH MANGHAM AND
 SHONNA L. MULKEY,
 APPELLANTS
                                                  §      JUDICIAL DISTRICT COURT
 V.

 HOLLY LAKE RANCH
 ASSOCIATION, INC.,                               §      WOOD COUNTY, TEXAS
 APPELLEE

                                            OPINION
       Ronald Roddy, Jay Blint, Patsy Jones, Kenneth Mangham, and Shonna L. Mulkey
(collectively Appellants) appeal the trial court’s declaratory summary judgment and award of
attorney’s fees rendered in favor of Appellee Holly Lake Ranch Association, Inc. Appellants raise
three issues on appeal. We reverse and render in part, remand in part, and affirm in part.

                                         BACKGROUND
       Holly Lake Ranch is a planned community with multiple subdivisions located in Wood
County, Texas. Its amenities include a golf course, a clubhouse, and a restaurant. The community
has grown in phases since it originated and, now, has thirty-two subdivisions, each with its own
deed restrictions.
       The Holly Lake Ranch Association (HLRA) is an incorporated nonprofit entity that serves
as the homeowners’ association for the community. According to its articles of incorporation,
HLRA was formed for the purpose of “holding, maintaining[,] and developing the common or
recreational facilities which have been installed or are to be installed for the beneficial use and
enjoyment of the owners of lots” in the community. The articles further set forth HLRA’s purposes
as “charging fees and assessments of the members of the corporation for any purpose” and
“adopting such rules and regulations for the use of property held by the corporation as may be
necessary.” Each owner in the community is required to be a member of HLRA and is subject to
its bylaws 1 in addition to the deed restrictions of the subdivision in which the lot is located.
       HLRA’s bylaws set forth its purpose of facilitating the fulfillment of the purposes provided
in HLRA’s articles of incorporation and state that they are subject to the deed restrictions. The
bylaws further set forth that member voting rights follow the rule of one vote per member
regardless of the number of lots owned. But the bylaws also specify that in a property owner vote
to amend deed restrictions, the rule stated in the deed restrictions of one vote per lot owned shall
be followed.
       The bylaws set forth the authority of HLRA’s board of directors, in pertinent part, as
follows:

                The business and affairs of the association shall be managed by its Board of Directors, who
       may exercise all such powers of the Association and do all such lawful acts as are permitted by the
       Texas Business Organizations Code, the Texas Property Code, other governing statutes, the Articles
       of Incorporation, the Deed Restrictions, and these Bylaws, subject however, to the prohibitions
       stated herein. The board of directors may not[,] . . . without the approval of fifty-one percent (51%)
       of the members voting in a binding referendum [impose] [a]ssessments of any kind.


The bylaws further place the authority in the board of directors to alter, amend, or repeal the
bylaws, subject to the members’ right to modify or divest the board of directors of this authority
by a majority vote.
       The instant case concerns amendments to the deed restrictions passed in several of the
subdivisions. Paragraph 18 of the deed restrictions sets forth, in pertinent part, as follows:

       [M]embership shall also be conditioned upon payment, when due, of such dues, fees, and
       maintenance charges as the Association shall find necessary for the maintenance of the Association
       facilities and services, including but not limited to the maintenance of lanes, roads, parks, club house
       and lakes and any other services and benefits which said Association may provide for the benefit of
       the lots, Association facilities, and Members.


Paragraph 18 further sets forth that members are to be subjected to an annual fee and maintenance
charge per lot, which is secured by a vendor’s lien on the lot. It further states that the developer
may waive, either temporarily or permanently, the fee and maintenance charge against any lot or



       1
           The bylaws were amended effective December 5, 2015.


                                                          2
tract if its owner has purchased another lot or tract within the subdivision which is subject to such
charges.
       Moreover, Paragraph 26(c) of the deed restrictions sets forth as follows:


                Any or all of the restrictions, covenants[,] and conditions herein contained may be repealed,
       amended[,] or modified at any time by a majority vote of the lot owners in the Subdivision, each
       then existing lot entitling its owner to one(1) vote. Such repeal, amendment[,] or modification shall
       be effected by an instrument in writing executed by such majority of said lot owners, and filed of
       record in the Office of the County Clerk of Wood County, Texas.


       Between 2014 and 2017, property owners from multiple subdivisions voted to amend their
respective deed restrictions.        Although the outcome and number of amendments varied by
subdivision, the resulting amendments relevant to this matter are summarized as follows:

       • Addition of a 51% voting requirement for dues, assessments, or fees.

       • Confirms that each lot entitles owner to one vote.

       • Provides mandatory waiver of duplicate dues, fees, and/or assessments for additional lots. Waiver applies
       to subsequent buyers with multiple lots.

       • Amount of monthly dues changed.

       • Restricts lien to dues, fees, or assessments for construction or repair.



       HLRA filed the instant suit on August 30, 2017, seeking a declaratory judgment that the
amendments are void. It further alleged breach of contract and sought monetary relief, injunctive
relief, and attorney’s fees. Thereafter, it filed a traditional motion for summary judgment, to which
Appellants responded.
       The trial court granted HLRA’s motion for summary judgment and, ultimately, rendered a
declaratory judgment that (1) the amendments to the subdivision restrictions at issue are void and
of no further legal effect and (2) votes cast by members of the Holly Lake Ranch subdivision
members in the future will be allocated as follows: “each member who owns a lot is entitled to
one vote, regardless of how many lots that member might own, and regardless of how many
persons, or entities, might share the ownership rights to that member’s lot.” The trial court also
awarded attorney’s fees to HLRA. This appeal followed.




                                                          3
                                   DECLARATORY JUDGMENT
       In their first issue, Appellants argue that the trial court erred in granting summary judgment
in favor of HLRA and rendering a declaratory judgment that the amendments at issue are void. In
their second issue, Appellants argue that the trial court erred in granting summary judgment in
favor of HLRA and rendering a declaratory judgment that the deed restrictions allocated votes for
an amendment at one vote per member regardless of the number of lots owned by that member.
Standards of Review
       To prevail on a traditional Rule 166a(c) summary judgment motion, a movant must prove
that there is no genuine issue regarding any material fact and that it is entitled to judgment as a
matter of law. See TEX. R. CIV. P. 166a(c); Little v. Tex. Dep’t of Criminal Justice, 148 S.W.3d
374, 381 (Tex. 2004). A plaintiff moving for a traditional summary judgment must conclusively
prove all essential elements of its claim. See Rhone–Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223
(Tex. 1999).
       On appeal, we review de novo a trial court’s summary judgment ruling. See Mann
Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). In our
review, we consider all the evidence in the light most favorable to the nonmovant, crediting
evidence favorable to the nonmovant if reasonable jurors could, and disregarding contrary
evidence unless reasonable jurors could not. See Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572,
582 (Tex. 2006); English v. B.G.P. Int’l, Inc., 174 S.W.3d 366, 370 (Tex. App.–Houston [14th
Dist.] 2005, no pet.).
       In reviewing a declaratory judgment, we refer to the procedure for resolution of the issue
at trial to determine the applicable standard of review on appeal. See TEX. CIV. PRAC. & REM.
CODE ANN. § 37.010 (West 2015); English, 174 S.W.3d at 370; see also Gen. Agents Ins. Co. of
Am. v. El Naggar, 340 S.W.3d 552, 557 (Tex. App.–Houston [14th Dist.] 2011, pet. denied). Here,
because the trial court resolved the declaratory judgment issues by ruling on motions for summary
judgment, we review the propriety of the trial court’s grant of the declaratory judgment under the
same standards applicable for review of summary judgments. See English, 174 S.W.3d at 370.
Therefore, we must determine whether the trial court properly granted HLRA’s declaratory
judgment requests and, if not, render the judgment which should have been rendered by the trial
court. See id.




                                                 4
Construction of Section 26(c)
       We first consider whether the trial court correctly construed Section 26(c). A restrictive
covenant is a contractual agreement between the seller and the purchaser of real property. Ski
Masters of Tex., LLC v. Heinemeyer, 269 S.W.3d 662, 667 (Tex. App.–San Antonio 2008, no
pet.). When construing a restrictive covenant, appellate courts apply general rules of contract
construction. Pilarcik v. Emmons, 966 S.W.2d 474, 478 (Tex. 1998); Ski Masters, 269 S.W.3d
at 668. Covenants are examined as a whole in light of the circumstances present when the parties
entered into the agreement. Ski Masters, 269 S.W.3d at 667. The reviewing court’s primary intent
is to ascertain and give effect to the true intention of the parties as expressed in the instruments.
Owens v. Ousey, 241 S.W.3d 124, 129 (Tex. App.–Austin 2007, pet. denied). A restrictive
covenant should be liberally construed “to give effect to its purposes and intent.” TEX. PROP. CODE
ANN. § 202.003(a) (West 2014). A trial court’s construction of a restrictive covenant is reviewed
de novo. Owens, 241 S.W.3d at 129.
       As set forth previously, Section 26(c) states, in pertinent part, that any of the restrictions
may be amended by a majority vote of the lot owners in the subdivision, each then existing lot
entitling its owner to one vote. Appellants argue that this italicized clause means that, for example,
if someone owns three lots in the subdivision, that person is entitled to three votes regarding a
proposed amendment to the deed restrictions. On the other hand, HLRA contends that this
language is intended to address only a situation wherein a lot has multiple owners and to restrict
each lot to one vote, regardless of the number of lot owners. But the mere fact that the parties
disagree about its meaning does not make an otherwise straightforward instrument ambiguous.
See Transcon. Gas Pipeline Corp. v. Texaco, Inc., 35 S.W.3d 658, 665 (Tex. App.–Houston [1st
Dist.] 2000, pet. denied). Nor does an ambiguity arise just because the parties’ respective
interpretations of the instrument conflict sharply. See id. Only if the instrument is subject to more
than one reasonable interpretation can it be ambiguous. See id.
       Here, the trial court found that the plain meaning of Paragraph 26(c) is that “each member
who owns a lot is entitled to one vote, regardless of how many lots that member might own, and
regardless of how many persons, or entities, might share the ownership rights to that member’s
lot.” We disagree.
       Paragraph 26(c) makes no reference to multiple lot owners in the context of allotment of
votes. Rather, it sets forth that the success of an amendment depends on a majority vote of a



                                                  5
subdivision’s lot owners, but it allots votes based on the number of lots, each of which entitles its
“owner” to one vote. Thus, if there are one hundred lots in a subdivision, one hundred votes may
be cast. Had the drafting parties intended to address only a situation wherein a lot had multiple
owners, they could have so stated. But we cannot conclude based on a reasonable interpretation
of the language used that they intended this clause to address only such an eventuality. Based on
our reading of the plain language of Paragraph 26(c), we conclude that it unambiguously states
that vote allotment on an amendment to the deed restrictions is based on the number of lots and,
regardless of the number of owners a lot may have, and each lot is allotted one vote. Appellants’
second issue is sustained.
Validity of the Amendments
        We next review the propriety of the trial court’s declaratory judgment that the amendments
to the deed restrictions are void. 2 In order to amend deed restrictions, three conditions must be
met. Wilchester W. Concerned Homeowners LDEF, Inc. v. Wilchester W. Fund, Inc., 177
S.W.3d 552, 562 (Tex. App.–Houston [1st Dist.] 2005, pet. denied). First, the instrument creating
the original restrictions must establish both the right to amend and the method of amendment. Id.
Second, the right to amend implies only those changes contemplating a correction, improvement,
or reformation of the agreement rather than its complete destruction. Id. Third, the amendment
must not be illegal or against public policy. Id.
        Among HLRA’s several arguments against the various amendments is that they are void
because they are illegal in that they violate Texas Business Organizations Code, Chapter 22.
“Illegal” means “not according to or authorized by law.”                         Illegal, MERRIAM-WEBSTER’S
COLLEGIATE DICTIONARY (11th ed. 2011).
        Section 22.202(a) sets forth in pertinent part as follows:


                 The certificate of formation of a corporation may vest the management of the affairs of the
        corporation in the members of the corporation. If the corporation has a board of directors, the
        corporation may limit the authority of the board to the extent provided by the certificate of formation
        or bylaws.




         2
           Even though it appears as though the trial court based its ruling that the amendments are void on its
construction of Section 26(c), we “must uphold a correct lower court judgment on any legal theory before it, even if
the court gives an incorrect reason for its judgment.” In re Estate of Hutchins, 391 S.W.3d 578, 585 (Tex. App.–
Dallas 2012, no pet.).




                                                          6
TEX. BUS. ORG. CODE ANN. § 22.202(a) (West 2012). The articles of incorporation set forth that
HLRA may have members, and “the rights, privileges, and obligations of such membership shall
be set forth in the corporate bylaws.” The bylaws for HLRA set forth, in pertinent part, as follows:


                                          Article IV: Board of Directors

                  Section 1 - Management. The business and affairs of the Association shall be managed by
        its Board of Directors, who may exercise all such powers of the Association and do all such lawful
        acts as are permitted by the Texas Business Organizations Code, The Texas Property Code, other
        governing statutes, the Articles of Incorporation, the Deed Restrictions, and these Bylaws, subject,
        however, to the prohibitions stated herein. The Board of directors may not take any of the following
        actions without the approval of fifty-one percent (51%) of the members voting in a binding
        referendum:

                 (a) Assessments of any kind. An assessment shall be defined as any levy of a specific
        amount imposed on the membership for (a) a specific project for a specific length of time or (b) as
        a lump sum. This provision shall not apply to dues levied to meet the requirements of an annual
        operating budget or dues levied to meet the requirements of a court order or mandated by law.

                 (b) Any proposal for a capital improvement (including but not limited to new construction
        or refurbishment of existing facilities) with an estimated cost provided by a competent contractor or
        professional designer, in excess of one hundred and fifty thousand ($150,000) dollars.

                 ....

                 (e) Overturn or modify any action passed through a referendum vote of the membership
        held pursuant to this article.


The bylaws further set forth that voting rights thereunder follow the rule of “one vote per member,
regardless of the number of lots owned.” 3 Moreover, the bylaws state that the “Board of Directors
shall have the power to alter, amend, or repeal these Bylaws or adopt new bylaws at any regular
or special meeting . . . subject, however, to the rights of the members to modify or divest such
power by a majority of the votes of the members.”
        Requiring Vote on Assessments, Fees, or Dues
        We first consider the amendment to the deed restrictions requiring a majority vote (based
on number of lots owned) before HLRA may levy any assessments, fees, or dues. We also consider
an amendment raising the monthly dues. Based on our review of the articles of incorporation and
bylaws, it is apparent that HLRA, in accordance with Section 22.202, vested broad authority in its
board of directors to manage and operate HLRA as a nonprofit corporation, subject to certain


        3
         The bylaws also state that multiple owners of a lot shall be considered one member and lots with multiple
owners shall be entitled to one vote.


                                                         7
specified exceptions where a member vote is required. The amendments to the deed restrictions
at issue result in placing requirements on HLRA that run afoul of its corporate bylaws, the
management authority of the board of directors, and the voting rights of members where
applicable. Specifically, by creating a voting requirement for the board’s ability to levy dues,
assessments, or fees under the deed restrictions on a subdivision basis, such amendments divest
HLRA members, as a whole, of their right to vote on assessments under Article IV, Section 1(a)
of the bylaws. Further, Article VIII of the bylaws vests authority in the board of directors to change
the amount of dues subject to a ten percent cap on the dues charged the previous year. Such
amendments further divest HLRA membership of its one vote per member voting calculation under
the bylaws as it relates to the board of director’s authority to levy assessments.
        Waiver of Duplicate Fees, Assessments, and Dues for Owners of Multiple Lots
        We next consider the amendments that seek to provide a mandatory waiver of duplicate
fees, and/or dues for owners who own more than one lot. Prior to amendment, the deed restrictions
set forth, in pertinent part, as follows:

                 The Developer may waive, either temporarily or permanently, the fee and maintenance
        charge against any lot or tract if the owner has purchased another lot or tract within the Subdivision
        which is subject to the charges. It is understood that the judgment of the Developer (or the
        Association, as the case may be) in the expenditure of said fund shall be final so long as such
        judgment is exercised in good faith.


        The bylaws state that each member of HLRA shall be assessed an annual maintenance fee
in the form of dues, which are calculated on a per lot basis. As set forth above, the bylaws set
forth the broad authority of the board of directors to manage HLRA in accordance with Section
22.202(a). It further sets forth that the board of directors shall have the power to alter, amend, or
repeal the bylaws or adopt new bylaws subject to the right of members to modify or divest such
power by a majority vote. And while the bylaws are subject to the deed restrictions, the deed
restrictions, prior to their amendments, were consistent with the broad authority granted to the
board of directors in the bylaws by giving HLRA discretion to waive a fee or maintenance charge.
These amendments undermine the authority of the board of directors by dispossessing it of this
discretion, contrary to the authority afforded to it in accordance with Section 22.202.
        Restriction of Liens to Cover Approved Assessments, Fees, or Dues
        We finally consider the amendments restricting HLRA’s liens. Prior to their amendments,
the deed restrictions set forth that each lot owner, as a condition to the acquisition of title to any


                                                          8
lot, shall have a lien upon the subject lot to secure payment of dues, fees, and maintenance charges.
By the amendments, the aforementioned liens cover only “approved” assessments, fees, or dues.
As set forth above, the amendments to the deed restrictions requiring approval of assessments,
fees, or dues result in placing requirements on HLRA that run afoul of its corporate bylaws, the
management authority of the board of directors, and the voting rights of members where applicable
and, further, divest HLRA membership of its one vote per member voting calculation under the
bylaws.
Summation
       Because the amendments contravene the statutory management authority granted to
HLRA’s board of directors in accordance with Section 22.202(a), they are not authorized by law
and, therefore, are illegal. See illegal, MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY (11th ed.
2011). Because they are illegal, these amendments are void. See Wilchester W. Fund, Inc., 177
S.W.3d at 562. Appellants’ first issue is overruled.


                                              ATTORNEY’S FEES
       In their third issue, Appellants argue that the trial court abused its discretion awarding
HLRA attorney’s fees. Specifically, they argue that the award was improper because (1) HLRA
failed to provide notice pursuant to Texas Property Code, Section 209.006(a), (2) HLRA is not
entitled to recover attorney’s fees for its breach of contract claim and, therefore, not entitled to
recover under the Declaratory Judgment Act, and (3) the award of attorney’s fees was not equitable
and just.
Notice Pursuant to Section 209.006(a)
       We first consider whether HLRA was required to give notice pursuant to Section
209.006(a). Section 209.006(a) sets forth as follows:

                 Before a property owners’ association may suspend an owner’s right to use a common area,
       file a suit against an owner other than a suit to collect a regular or special assessment or foreclose
       under an association’s lien, charge an owner for property damage, or levy a fine for a violation of
       the restriction or bylaws or rules of the association, the association or its agent must give written
       notice to the owner by certified mail.


TEX. PROP. CODE ANN. § 209.006(a) (West Supp. 2019). A property owners’ association’s
recovery of attorney’s fees under this chapter is predicated on its provision of written notice under
Section 209.006(a). See id. § 209.008 (West. 2014).


                                                         9
         The notice requirement in Section 209.006(a) is mandatory, but not jurisdictional. See
Park v. Escalera Ranch Owners’ Ass’n, Inc., 457 S.W.3d 571, 590 (Tex. App.–Austin 2015, no
pet.). A party may, however, waive this mandatory requirement by failing to timely object since
the notice provision may be cured by a defendant’s timely request for abatement to allow for
provision of the notice. See id. In most cases, abatement must be requested with the filing of an
answer or very soon thereafter to be timely. See id. at 589–90 (citing Hines v. Hash, 843 S.W.2d
464, 469 (Tex. 1992)).
         In the instant case, Appellants filed their original answer on September 25, 2017. They did
not file a motion to abate until January 8, 2018. Even assuming arguendo that a motion to abate
filed more than three months after an answer is timely, Appellants’ motion to abate made no
reference to the notice provisions of Section 209.006(a). 4 See TEX. R. APP. P. 33.1(a). Therefore,
we conclude that Appellants waived the notice requirement of Section 209.006(a), if applicable. 5
Availability of Attorney’s Fees Absent Viable Breach of Contract Claim
         We next consider Appellants’ argument that HLRA “is not entitled to recover attorney’s
fees for its breach of contract claim and is[,] therefore[,] not entitled to recover attorney’s fees for
its declaratory judgment action.” Specifically, Appellants argue that the declarations sought by
HLRA duplicate issues already before the trial court by reason of its breach of contract cause of
action. 6
         In MBM Financial Corporation v. Woodlands Operating Company, the plaintiff sued for
breach of contract, fraud, and sought a declaratory judgment. See 292 S.W.3d 660, 663 (Tex.
2009). At trial, the plaintiff recovered no damages on its breach of contract and fraud claims. See
id. In reaching its holding, the supreme court set forth the following rule:


         [W]hen a claim for declaratory relief is merely tacked on to a standard suit for a matured breach of
         contract, allowing fees under [the declaratory judgment statute] would frustrate the limits Chapter
         38 imposes on such fee recoveries. And granting fees under [the declaratory judgment statute] when
         they are not permitted under the specific common-law or statutory claims involved would violate
         the rule that specific provisions prevail over general ones.

         4
        Based on our review of the record, the first reference Appellants made to Section 209.006 is in their Second
Amended Answer, which they filed on August 15, 2018.
          5
            HLRA argues that Section 209.006(a)’s notice requirement is inapplicable to the case at hand. In resolving
this portion of Appellants’ third issue, we assume, without deciding, that Section 209.006(a) applies to this case.
         6
           At oral argument of this case, HLRA conceded that it could not yet demonstrate damages on its breach of
contract cause of action.


                                                         10
Id. at 670. Applying this rule to the facts before it, the court determined that although the plaintiff
obtained five declarations, these declarations merely duplicated the issues raised in the fraud and
contract claims. See id. at 671. As a result, the court held that the plaintiff could not recover
attorney’s fees under the declaratory judgment statute. See id. at 670–71.
         In the instant case, HLRA alleged that Appellants are liable for breach of contract based
on their violation of deed restrictions, to which they are bound by virtue of their purchase of
property within the subdivision, and by virtue of their respective HLRA memberships, which
further are conditioned on the payment of dues. HLRA also alleged that Appellants “breached
their agreement[s] by causing to be filed amendments to the restrictive covenants, which usurp the
authority of HLRA to carry out its duty to properly manage the subdivision” and implicitly
expressing that “they will not agree to be subject to the maintenance charges as [HLRA] shall find
necessary for the maintenance of . . . facilities and services.” Among the reasons HLRA sought a
declaratory judgment was that the amendments are void because they are illegal because they
conflict with Texas Business Organizations Code, Section 22.202(a). These allegations are similar
in that they arise out of Appellants’ undertaking to amend the various deed restrictions of the
subdivisions. However, there is a distinction between HLRA’s breach of contract cause of action,
which addresses how Appellants’ actions breached restrictions to the extent that such restrictions
constituted a contractual agreement between them, other subdivision residents, and/or HLRA, 7 and
its declaratory judgment action, which sought, among other reasons, to have the amendments to
the deed restrictions declared void under the common law. See Wilchester W. Fund, Inc., 177
S.W.3d at 562. 8 We conclude that the allegations underlying HLRA’s declaratory judgment action
are not part and parcel to its breach of contract cause of action against Appellants. Therefore, its
recovery of attorney’s fees is not impermissible on this basis. Cf. MBM Fin. Corp., 292 S.W.3d
at 670–71.



         7
          See, e.g., Ski Masters, 269 S.W.3d at 667 (restrictive covenant is contractual agreement between the seller
and the purchaser of real property).
         8
           HLRA’s declaratory judgment action also is based on allegations concerning the correct interpretation of
Paragraph 26(c) of the deed restrictions. Neither the trial court’s nor this court’s interpretation of the language in
Paragraph 26(c) has any bearing on whether Appellants breached any deed restrictions and, thus, their contractual
relationship with HLRA. Rather, as the trial court found, the result of a finding on this issue in HLRA’s favor resulted
in the amendments’ being void.


                                                          11
Attorney’s Fees Must Be “Equitable and Just”
         Lastly, we consider Appellants’ argument that the trial court’s award of attorney’s fees was
neither equitable nor just.
         Standard of Review and Governing Law
         The Declaratory Judgment Act provides the trial court with discretion to award reasonable
and necessary attorney’s fees, in an amount that is just and equitable. See TEX. CIV. PRAC. & REM.
CODE ANN. § 37.009 (West 2015); Approach Resources I, L.P. v. Clayton, 360 S.W.3d 632, 639
(Tex. App.–El Paso 2012, no pet.). The award is not dependent on a finding that the party prevailed
in the action, and in its discretion, the trial court may decline to award fees to either party. Id.; see
Barshop v. Medina Cty. Underground Water Conservation Dist., 925 S.W.2d 618, 637–38 (Tex.
1996).
         A trial court’s decision to grant or deny attorney’s fees will not be disturbed absent an
abuse of discretion. Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998). In conducting our
review, we view the evidence in the light most favorable to the trial court’s ruling, and indulge
every presumption in its favor. See Aquaduct, L.L.C. v. McElhenie, 116 S.W.3d 438, 444 (Tex.
App.–Houston [14th Dist.] 2003, no pet.). A trial court abuses its discretion when it acts in an
arbitrary or unreasonable manner, without reference to guiding rules and principles of law. Goode
v. Shoukfeh, 943 S.W.2d 441, 446 (Tex. 1997).
         Appellate review of an attorney’s fee award under the Declaratory Judgment Act requires
a multifaceted analysis. See Transcontinental Ins. Co. v. Crump, 330 S.W.3d 211, 231 (Tex.
2010). The reasonableness and necessity of the fee amount are fact questions. See Ridge Oil Co.,
Inc. v. Guinn Investments, Inc., 148 S.W.3d 143, 162–63 (Tex. 2004). Determining whether to
award fees, or how much of an award is equitable and just in a given case, are questions committed
to the trial court’s discretion because of the nature of the issue. Id. at 161–62. Whether it is
“equitable and just” to award attorney’s fees depends not on direct proof, but on the concept of
fairness, in light of all the circumstances of the case. Id. at 162. As such, although a fact finder
may determine the value of the reasonable and necessary expenditures, it remains for the court to
determine how much, if any, of the reasonable and necessary fees would constitute a just and
equitable award. Id.
         This distinction was addressed by the Texas Supreme Court in Ridge Oil Co., Inc. In that
case, the court was asked to determine whether a trial court’s decision to award only part of the



                                                   12
fees which the jury had determined to be reasonable and necessary constituted an abuse of
discretion. Id. at 161. Recognizing the distinction between the jury’s fact finding duty on the
reasonable and necessary prong, and the trial court’s role in crafting a just and equitable award,
the court explained as follows:


                  There are times, such as this one, when the trial court determines that equity and justice
        preclude it from awarding the full amount of fees that the jury found to be reasonable and necessary.
        In this case, the trial judge necessarily concluded that it would not be equitable and just to award
        Ridge the full amount of attorney’s fees, but that it would also be inequitable or unjust to award no
        attorney’s fees even though the court had the discretion to do so. Thus, we hold that Section
        31.009’s ‘as are equitable and just’ language cannot reasonably be construed to mean anything other
        than the extent to which such fees are equitable and just and, thus, authorizes an award of attorney’s
        fees less than the amount found by a jury to be reasonable and necessary.


Id. at 162. The court further concluded that there was “no indication in the record that the trial
judge’s decision was arbitrary or unreasonable,” and it upheld the trial court’s reduced fee award.
Id. at 163.
        Here, the reasonableness and necessity of the attorney’s fees awarded to HLRA is not in
dispute on appeal. As a general matter, the trial court had the discretion to reduce or refuse to
award fees. See id. at 162. And it implicitly found that the fees were equitable and just.
        Discussion
        Appellants argue that “hundreds of property owners approved the Amendments, but only
eight [d]efendants in this case were singled out and ordered to bear the burden of paying . . .
HLRA’s attorney’s fees,” an outcome they describe as patently unfair. Appellants further note
that the trial court acknowledged the defendants could not have known they were doing anything
wrong, described the case as one of “first impression[,]” and invited that the case be appealed so
that an appellate court could consider the issue. Thus, Appellants contend that if the trial court is
not confident its decision is correct, it is not equitable and just to hold them responsible for
attorney’s fees.
        As set forth above, Appellants filed a motion to abate, in which they argued as follows:

                 While the named Defendants are the only residents of Holly Lake Ranch who filed the
        amended Deed Restrictions in the Wood County Deed Records, the amended Deed Restrictions
        impact all residents, and their property rights, of the various areas impacted by the Amended Deed
        Restrictions or Plaintiff’s attempt to have them declared void.

                Because there are many unnamed people whose personal and real property rights are
        impacted by Plaintiff’s actions in this suit, these people are indispensable parties to the suit and must



                                                          13
        be served with notice of the suit and cited to appear. Without such notice, Plaintiff is seeking to
        impact the property rights of these individuals without affording them notice of this process.
        Therefore, the property owners in the affected areas are indispensable parties[,] and this case should
        be abated until such time as all affected property owners can be served with notice of the petition
        and cited to appear.


        Appellants also filed a motion to dismiss, in which they raised similar contentions. The
trial court denied these motions, and Appellants have not challenged these denials on appeal.
Accordingly, the issue of whether any other residents of the various subdivisions were
indispensable parties is not before us. Furthermore, if Appellants believed that other residents of
the subdivisions potentially were liable for the causes of action alleged by HLRA, they could have
included them in the proceedings by filing or moving for leave to file third party petitions against
them. See TEX. R. CIV. P. 38. However, Appellants chose not to undertake this course. Moreover,
Appellants have not cited to, nor is this court aware of, any authority supporting the contention
that an award of attorney’s fees is inequitable or unjust in matters of first impression, where the
parties did not intentionally subject themselves to liability, or where the likelihood of an appeal
was high.
         Nonetheless, we may consider more broadly whether the trial court’s award of attorney’s
fees is equitable and just. See TEX. R. APP. P. 38.1(f) (statement of an issue or point will be treated
as covering every subsidiary question that is fairly included). The award of attorney’s fees and
costs in a declaratory judgment action is within the trial court’s discretion and is not dependent
upon a finding that a party substantially prevailed. Chase Home Fin., L.L.C. v. Cal West.
Reconveyance Corp., 309 S.W.3d 619, 634 (Tex. App.–Houston [14th Dist.] 2010, no pet.) (citing
Barshop v. Medina, 925 S.W.2d 618, 637–38 (Tex. 1996)). Because our disposition of this case
substantially affects the trial court’s judgment, a partial remand is warranted so that the trial court
can address whether the reasonable and necessary attorney’s fees it awarded to HLRA still are
equitable and just in accordance with the judgment rendered by this court. See Funes v. Villatoro,
352 S.W.3d 200, 217 (Tex. App.–Houston [14th Dist.] 2011, pet. denied). Appellants third issue
is overruled in part and sustained in part.


                                                  CONCLUSION
        Having sustained Appellants’ second issue, we reverse the trial court’s judgment to the
extent that it decrees,



                                                         14
                   It is further ORDERED, ADJUDGED, and DECREED that votes cast by members of Holly
         Lake Ranch Association, Inc. on proposed amendments to the Subdivision Restrictions in the future
         will be allocated as follows: each member who owns a lot is entitled to one vote regardless of how
         many lots that member might own, and regardless of how many persons, or entities, might share the
         ownership rights in that member’s lot.


And we render the following declaratory judgment in its place:


                  It is further ORDERED, ADJUDGED, and DECREED that votes cast by members of Holly
         Lake Ranch Association, Inc. on proposed amendments to the Subdivision Restrictions in the future
         will be allocated as follows: one vote is allotted to its owner(s) for each lot owned, regardless of
         the number of owners a lot may have. Thus, if a person owns multiple lots, that person is entitled
         to multiple votes equal to the number of lots he or she owns. In the event that a lot has multiple
         owners, they are allotted collectively one vote for that lot.


Having sustained Appellant’s third issue in part, we remand the cause in part with instructions
that the trial court address whether the reasonable and necessary attorney’s fees it awarded to
HLRA are equitable and just in accordance with the judgment as rendered by this court. Having
overruled Appellants’ first issue and part of its third issue, we affirm the remainder of the trial
court’s judgment.

                                                                             BRIAN HOYLE
                                                                                Justice



Opinion delivered December 11, 2019.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                                   (PUBLISH)




                                                         15
                                     COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                             JUDGMENT

                                          DECEMBER 11, 2019


                                           NO. 12-18-00261-CV


                       RONALD RODDY, JAY BLINT, PATSY JONES,
                     KENNETH MANGHAM AND SHONNA L. MULKEY,
                                     Appellants
                                        V.
                        HOLLY LAKE RANCH ASSOCIATION, INC.,
                                      Appellee


                                  Appeal from the 402nd District Court
                             of Wood County, Texas (Tr.Ct.No. 2017-523)

                         THIS CAUSE came to be heard on the oral arguments, appellate record and
the briefs filed herein, and the same being considered, because it is the opinion of this court that
there was error in the judgment of the court below, it is ORDERED, ADJUDGED and DECREED
by this court that it decrees


                  It is further ORDERED, ADJUDGED, and DECREED that votes cast by members of Holly
        Lake Ranch Association, Inc. on proposed amendments to the Subdivision Restrictions in the future
        will be allocated as follows: each member who owns a lot is entitled to one vote regardless of how
        many lots that member might own, and regardless of how many persons, or entities, might share the
        ownership rights in that member’s lot.


be reversed, and judgment rendered in its place:
                It is further ORDERED, ADJUDGED, and DECREED that votes cast by members of Holly
       Lake Ranch Association, Inc. on proposed amendments to the Subdivision Restrictions in the future
       will be allocated as follows: one vote is allotted to its owner(s) for each lot owned, regardless of
       the number of owners a lot may have. Thus, if a person owns multiple lots, that person is entitled
       to multiple votes equal to the number of lots he or she owns. In the event that a lot has multiple
       owners, they are allotted collectively one vote for that lot.


                It is further ORDERED, ADJUDGED, and DECREED THAT the cause be
remanded in part with instructions that the trial court address whether the reasonable and
necessary attorney’s fees it awarded to HLRA are equitable and just in accordance with the
judgment as rendered by this court. The remaining portion of the trial court’s order is affirmed;
all costs shall be assessed against the party incurring same, for which let execution issue; and that
the decision be certified to the court below for observance.
                     Brian Hoyle, Justice.
                     Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
