Reversed and Remanded and Opinion filed March 27, 2012.




                                              In The

                             Fourteenth Court of Appeals
                                     ___________________

                                      NO. 14-11-00268-CV
                                     ___________________

                                  AARON WIESE, Appellant

                                                   V.

            HEATHLAKE COMMUNITY ASSOCIATION, INC., Appellee


                          On Appeal from the 215th District Court
                                  Harris County, Texas
                            Trial Court Cause No. 2009-43649


                                          OPINION

       A property owners’ association sued a homeowner to enforce a restrictive covenant.
The trial court granted injunctive relief and statutory attorney’s fees. In 16 issues, the
homeowner challenges the trial court’s interpretation of the restrictive covenant, the
sufficiency of the evidence to support the trial court’s findings of fact, and the trial court’s
award of attorney’s fees. We reverse and remand.

                                        BACKGROUND

       This case focuses on Aaron Wiese’s boat, a large model Wellcraft. When resting
on its trailer, the boat is nearly 12 feet tall.
       Wiese resides in West Harris County in a subdivision governed by a properly
recorded Declaration of Covenants, Conditions, and Restrictions. The Declaration
establishes Heathlake Community Association, Inc. as the property owners’ association
charged with maintaining the subdivision and enforcing its restrictive covenants.

       The Declaration dictates certain standards for property ownership within the
community. The standard applicable in this case is one written specifically on the subject
of boats, and it states as follows:

       Section 10. Storage of Automobiles, Boats Trailers and Other Vehicles. No
       boat trailers, boats, travel trailers, inoperative automobiles, campers, or
       vehicles of any kind shall be semipermanently or permanently stored in the
       public street right-of-way or on driveways. Storage of such items and
       vehicles must be screened from public view, either within the garage or
       behind a fence which encloses the rear of the Lot.

After Wiese moved into the neighborhood, observers noted that he frequently parked his
boat in public view in the driveway or on the street. Believing this storage to be in violation
of the Declaration, Heathlake communicated with Wiese directly to address the
complaints. When repeated attempts to resolve the issue failed, Heathlake filed this suit
seeking a permanent injunction and other statutory penalties.

       Heathlake proffered evidence at trial showing that Wiese’s storage of the boat had
become a recurring issue within the community. In an eight-year span, Wiese received at
least nine notices advising him that he was storing his boat in a proscribed manner. The
notices normally afforded Wiese an opportunity to cure the defect, generally within ten or
fifteen days from the date of receipt. Wiese testified that he removed the boat within the
time allotted by each notice. However, once the violation had been cured, the evidence
showed that the boat inevitably returned to Wiese’s property and remained parked in public
view for extended periods of time.

       Email correspondence from one neighbor documented the duration of this storage.
The neighbor indicated that on one occasion, Wiese had been storing his boat in his

                                              2
driveway “for six weeks plus.” The neighbor later complained that the boat was parked
along the street for an entire week in June 2009, except Saturday and Sunday. The neighbor
also reported that it was on the street for “over a week” in July 2009.

       A member of Heathlake’s Architectural Control Committee also testified about his
encounters with the boat. The committee member did not live on Wiese’s street, but he
inspected the property himself in the summer of 2006 following complaints from other
residents. The committee member found that the boat was stored continuously in Wiese’s
driveway for four consecutive days in August and for five consecutive days in September.
The pattern demonstrated that “the boat was stored every day during the week to be used
occasionally on weekends.”

       Wiese testified that he did not store the boat at his house. He admitted that “on
occasion” he had kept the boat at his home for several days at a time, but he indicated that
this storage was only temporary. When it did happen, Wiese said he was preparing to take
the boat into the shop for maintenance or was waiting for a part to be delivered. When not
in use, Wiese testified that the boat was actually stored at a warehouse facility he operated
near downtown Houston.

       The trial court found that Wiese had violated the Declaration and that Heathlake
was entitled to a permanent injunction. Among its findings of fact, the trial court
determined that Wiese violated the restrictive covenant by “repeatedly storing a boat on the
Property without screening such boat from public view” and by “repeatedly
semi-permanently storing a boat in the public street right of way and on the driveway of the
Property.” The court also found that Wiese’s manner of keeping the boat constituted a
nuisance within the community and that Wiese was likely to violate the Declaration again.
The court then entered a permanent injunction, ordering Wiese to desist and refrain from
keeping his boat unscreened from public view on his property for any period in excess of
24 consecutive hours.


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                                  ISSUES PRESENTED

       Wiese raises 16 issues on appeal. He challenges the sufficiency of the evidence to
support the trial court’s findings of fact, the trial court’s various conclusions of law,
Heathlake’s entitlement to attorney’s fees, Heathlake’s interpretation of the Declaration,
and the trial court’s decision to enter the permanent injunction. We begin by examining the
permanent injunction and the conclusions of law on which it is based.

                                        ANALYSIS

       We review a trial court’s decision to grant or deny a permanent injunction for an
abuse of discretion. Meehl v. Wise, 285 S.W.3d 561, 565 (Tex. App.—Houston [14th Dist.]
2009, no pet.). A trial court abuses its discretion when its decision is arbitrary,
unreasonable, or without reference to any guiding rules or principles. Downer v.
Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985). Because the trial court
has no discretion in determining the applicable law, the trial court also abuses its discretion
when it fails to analyze the law correctly and apply it to the facts of the case. In re Kuntz,
124 S.W.3d 179, 181 (Tex. 2003).

       To obtain injunctive relief, a party must ordinarily show (1) the existence of a
wrongful act; (2) the existence of imminent harm; (3) the existence of irreparable injury;
and (4) the absence of an adequate remedy at law. Jim Rutherford Invs., Inc. v. Terramar
Beach Cmty. Ass’n, 25 S.W.3d 845, 849 (Tex. App.—Houston [14th Dist.] 2000, pet.
denied). When the basis for suit is the enforcement of a deed restriction, instead of showing
proof of irreparable injury, the party seeking relief need only demonstrate that the
defendant intends to do an act that would breach the restrictive covenant. Id.

       Injunctions are not intended to grant relief for past actionable wrongs or to prevent
the commission of wrongs not imminently threatened. Tex. Emp’t Comm’n v. Martinez,
545 S.W.2d 876, 877 (Tex. Civ. App.—El Paso 1976, no writ). Generally, the purpose of
injunctive relief is to halt wrongful acts that are either threatened or in the course of

                                              4
accomplishment. Id. A party seeking an injunction must be specific in pleading the type of
relief sought because courts are without authority to grant relief beyond what is requested.
Computek Computer & Office Supplies, Inc. v. Walton, 156 S.W.3d 217, 221 (Tex.
App.—Dallas 2005, no pet.).

        Once granted, an injunction must be specific in its terms to be enforceable,
describing in clear and precise detail the acts sought to be restrained. See Tex. R. Civ. P.
683. It should be broad enough to prevent subsequent violations of those already
committed, but not so broad as to enjoin a defendant from activities that are a lawful and
proper exercise of his rights. Webb v. Glenbrook Owners Ass’n, Inc., 298 S.W.3d 374, 384
(Tex. App.—Dallas 2009, no pet.).

        Heathlake pleaded for injunctive relief and requested an order enjoining Wiese from
storing his boat on a permanent or semi-permanent basis. The trial court concluded as a
matter of law that a boat stored in excess of 24 hours is being stored “semipermanently” in
violation of the Declaration. The trial court’s injunction forbids Wiese “from having a boat
that is not screened from public view . . . in excess of twenty four consecutive hours.”

        Wiese argues that the trial court abused its discretion because the injunction’s
language exceeds the scope of the pleading, the evidence, and the terms of the Declaration.
He makes two primary arguments. He first contends that the Declaration is ambiguous
because it simultaneously prohibits and allows the storage of boats. He next contends that
the trial court’s 24-hour rule is unsupported by the record because Heathlake proffered no
evidence concerning the meaning of “semipermanently.” We examine each argument in
turn.

        Restrictive covenants are subject to the general rules of contract construction.
Pilarcik v. Emmons, 966 S.W.2d 474, 478 (Tex. 1998). When construing a restrictive
covenant, our primary goal is to ascertain and give effect to the intent of its drafters, using
the language of the instrument as our guide. Uptegraph v. Sandalwood Civic Club, 312
S.W.3d 918, 925 (Tex. App.—Houston [1st Dist.] 2010, no pet.). We examine the
                                              5
covenant as a whole in light of the circumstances present when it was written, affording
words and phrases their commonly accepted meanings. Pilarcik, 966 S.W.2d at 478;
Wilmoth v. Wilcox, 734 S.W.2d 656, 657–58 (Tex. 1987). We review the trial court’s
interpretation of a restrictive covenant de novo. Rakowski v. Comm. to Protect Clear Creek
Village Homeowners’ Rights, 252 S.W.3d 673, 676 (Tex. App.—Houston [14th Dist.]
2008, pet. denied) (plurality opinion); City of Pasadena v. Gennedy, 125 S.W.3d 687, 692
(Tex. App.—Houston [1st Dist.] 2003, pet. denied).

       Whether a restrictive covenant is ambiguous is a question of law for the court to
decide. Pilarcik, 966 S.W.2d at 478; Samms v. Autumn Run Cmty. Improvement Ass’n,
Inc., 23 S.W.3d 398, 402 (Tex. App.—Houston [1st Dist.] 2000, pet. denied). A covenant
is unambiguous if it can be given a definite or certain legal meaning, consistent with the
appropriate rules of construction. Air Park-Dallas Zoning Comm. v. Crow Billingsley
Airpark, Ltd., 109 S.W.3d 900, 909 (Tex. App.—Dallas 2003, no pet.). By contrast, a
covenant is ambiguous if, after applying the same rules of construction, its terms are
susceptible to more than one reasonable interpretation. Pilarcik; 966 S.W.2d at 478. A
covenant is not ambiguous simply because the parties disagree over its interpretation. Air
Park-Dallas Zoning Comm., 109 S.W.3d at 909.

       A.     The Covenant Is Not Internally Inconsistent

       Wiese first argues that the covenant creates an irreconcilable conflict. He contends
that the covenant’s first sentence absolutely prohibits all storage because it states that
“no . . . boats . . . shall be semipermanently or permanently stored in the public
street right-of-way or on driveways.” Wiese contends this prohibition is inconsistent with
the second sentence, which permits a boat to be stored if it is “screened from public view,
either within the garage or behind a fence which encloses the rear of the Lot.”

       There is no conflict between these two sentences. The first provision bars the
storage of boats on a permanent or semi-permanent basis, but it does so based on a
geographic limitation applying only to streets and driveways. No part of the prohibition
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can be read to encompass garages or areas enclosed by a fence. Because the sentences are
tailored to distinguish between separate areas, the covenant’s restriction may be given a
definite legal meaning. It is not ambiguous.

         B.    The 24-hour Rule

         In his next argument, Wiese contends that the injunction’s 24-hour rule is
unsupported by the Declaration. Wiese insists that this rule cannot be enforced because the
Declaration neither defines the term “semipermanently” nor contains a provision expressly
restricting homeowners from storing their boats unscreened for more than 24 consecutive
hours.

         Heathlake argues that the injunction comports with the Declaration because, even
without explicit definitions or provisions, the covenant always has been understood to bar
the storage of boats for more than 24 consecutive hours. In support of this argument,
Heathlake relies on its own history of enforcement practices. A member of the
Architectural Control Committee testified at trial that Heathlake has been enforcing a
24-hour rule for more than two decades. Past and current officers of the Heathlake board
agreed that the 24-hour rule was a reasonable interpretation of the covenant because it
afforded homeowners “a practical period of time for someone to use a boat in a normal way
then get it out of their driveway or street.” Heathlake also produced evidence that its board
members had been developing official interpretations of the Declaration. The evidence
showed that the 24-hour rule was included in one of those proposed interpretations, but
these interpretations were not formally ratified and published for the benefit of
homeowners.

               1.     Additional rules of construction: The common law and the Texas
                      Property Code
         Covenants restricting the free use of land are not favored at common law, but they
will be enforced if clearly worded and confined to a lawful purpose. Wilmoth, 734 S.W.2d
at 657. The common law holds that if any doubts arise from the terms of a covenant, such
                                               7
doubts must be resolved in favor of the free and unrestricted use of land. Id. Courts may not
enlarge, extend, stretch, or change the words of the restriction by construction. Id. If the
covenant contains any ambiguity, it must be strictly construed against the party seeking to
enforce it. Id.

        The legislature amended the Texas Property Code in 1987 to provide that all
restrictive covenants in instruments governing certain residential developments, regardless
of the date on which they were created, must be liberally construed to give effect to their
purpose and intent. See Act of May 23, 1987, 70th Leg., R.S., ch. 712, § 1, 1987 Tex. Gen.
Laws 2585, 2585 (current version at Tex. Prop. Code Ann. §§ 202.002(a), 202.003(a)
(Vernon 2007)).

        Texas appellate courts have not been consistent in their discussion or application of
these two rules of construction, as the First Court of Appeals has already observed. See
Uptegraph, 312 S.W.3d at 926–28; Gennedy, 125 S.W.3d at 693–95. Some courts,
including our own, have held or suggested that the Property Code’s liberal construction
rule has superseded the common law’s approach to strictly construing restrictive
covenants.1 By contrast, others have held that there is no discernible conflict between the
two rules.2 Among these courts, there persists a separate disagreement as to how the rules
should be applied. Some courts have continued applying the common law rule without



        1
         See Village of Pheasant Run Homeowners Ass’n, Inc. v. Kastor, 47 S.W.3d 747, 750–51 (Tex.
App.—Houston [14th Dist.] 2001, pet. denied); Benard v. Humble, 990 S.W.2d 929, 930–31 (Tex.
App.—Beaumont 1999, pet. denied); Highlands Mgmt. Co., Inc. v. First Interstate Bank of Tex., N.A., 956
S.W.2d 749, 752 (Tex. App.—Houston [14th Dist.] 1997, pet. denied); Candlelight Hills Civic Ass’n, Inc.
v. Goodwin, 763 S.W.2d 474, 476–77, 480 (Tex. App.—Houston [14th Dist.] 1988, writ denied).
        2
          See Reagan Nat’l Adver. of Austin, Inc. v. Capital Outdoors, Inc., 96 S.W.3d 490, 493 n.2 (Tex.
App.—Austin 2002, pet. granted, judgm’t vacated w.r.m.); Dyegard Land P’ship v. Hoover, 39 S.W.3d
300, 309 (Tex. App.—Fort Worth 2001, no pet.); Munson v. Milton, 948 S.W.2d 813, 818 n.1 (Tex.
App.—San Antonio 1997, writ denied) (Duncan, J., dissenting); Simon Prop. Grp. (Tex.) L.P. v. May Dep’t
Stores Co., 943 S.W.2d 64, 71 (Tex. App.—Corpus Christi 1997, no pet.); Ashcreek Homeowner’s Ass’n,
Inc. v. Smith, 902 S.W.2d 586, 588–89 (Tex. App.—Houston [1st Dist.] 1995, no writ); Crispin v. Paragon
Homes, Inc., 888 S.W.2d 78, 81 (Tex. App.—Houston [1st Dist.] 1994, writ denied).
                                                   8
attempting to reconcile it with the Property Code.3 Other courts have applied the common
law rule only when confronted with an ambiguity, but these courts first apply the Property
Code’s liberal construction rule to determine if such an ambiguity exists.4

        Other courts, including ours, have continued to apply the common law rule without
any reference to the Property Code. 5 In similar fashion, some courts have applied the
Property Code without mentioning the common law standard.6

        The Texas Supreme Court has noted, but has not addressed, the potential tension
between these two methods of construction. See Pilarcik, 966 S.W.2d at 478 (noting, but
not deciding, party’s argument that the Property Code supplanted the common law rule).
We need not confront this tension to resolve the case presently before us. Under either
approach, the covenant at issue is incapable of supporting the 24-hour rule adopted in the
injunction.

        Under the common law approach, the covenant fails insofar as it proscribes the open
storage of boats “semipermanently.” The term “semipermanently” is nowhere defined in
the Declaration, and its ordinary meaning has no certain limits. One dictionary defines the


        See Reagan Nat’l Adver., 96 S.W.3d at 493 n.2; Dyegard, 39 S.W.3d at 309; Simon Prop. Grp.,
        3

943 S.W.2d at 71; Crispin, 888 S.W.2d at 81.
        4
          See Quinn v. Harris, No. 03-98-00117-CV, 1999 WL 125470, at *2 n.3 (Tex. App.—Austin Mar.
11, 1999, pet. denied) (not designated for publication) (construing Munson, 948 S.W.2d at 816).
        5
           Pebble Beach Prop. Owners’ Ass’n v. Sherer, 2 S.W.3d 283, 288 (Tex. App.—San Antonio 1999,
pet. denied); Kulkarni v. Braeburn Valley W. Civic Ass’n, Inc., 880 S.W.2d 277, 278 (Tex. App.—Houston
[14th Dist.] 1994, no writ); Hickory Ridge Homeowners Ass’n v. Sawtelle, No. 14-94-00300-CV, 1995 WL
676861, at *2–3 (Tex. App.—Houston [14th Dist.] Aug. 31, 1995, writ denied) (not designated for
publication) (observing that in some other states, “[u]nlike Texas,” covenants are construed liberally in
favor of the party seeking enforcement).
        6
          Lee v. Perez, 120 S.W.3d 463, 466 (Tex. App.—Houston [14th Dist.] 2003, no pet.); Truong v.
City of Houston, 99 S.W.3d 204, 214 (Tex. App.—Houston [1st Dist.] 2002, no pet.); Am. Golf Corp. v.
Colburn, 65 S.W.3d 277, 279–80 (Tex. App.—Houston [14th Dist.] 2001, pet. denied); Samms v. Autumn
Run Cmty. Improvement Ass’n, Inc., 23 S.W.3d 398, 402 (Tex. App.—Houston [1st Dist.] 2000, pet.
denied); Bank United v. Greenway Improvement Ass’n, 6 S.W.3d 705, 707–08 (Tex. App.—Houston [1st
Dist.] 1999, pet. denied); Boudreaux Civic Ass’n v. Cox, 882 S.W.2d 543, 547 (Tex. App.—Houston [1st
Dist.] 1994, no writ); Gettysburg Homeowners Ass’n, Inc. v. Olsen, 768 S.W.2d 369, 372 (Tex.
App.—Houston [14th Dist.] 1989, no writ).
                                                   9
word “semipermanent” as “permanent in some respects: partly permanent” and “lasting for
an indefinite time: virtually permanent.” Webster’s Third New International Dictionary
2064 (Philip Babcock Gove ed., 1993). Another defines it as “lasting or intended to last for
a long time but not permanent.” Webster’s Ninth New Collegiate Dictionary 1070
(Frederick C. Mish et al. eds., 1985). The term is amorphous, having no authoritative
definition that can be measured in precise units of time. Without a definite meaning, the
covenant must be strictly construed against Heathlake and in favor of Wiese. See Wilmoth,
734 S.W.2d at 657. 7

        The outcome is the same even when the covenant is liberally construed. After
reading the covenant as a whole, the intent of the drafters appears to be mainly aesthetic.
The restriction applies to boats, large trailers, and other vehicles not usually found in front
of a standard suburban home. The covenant aims to reduce visual clutter by limiting the
presence of these objects; this preserves a cleaner image of the community and enables all
residents to fully enjoy their individual properties. At trial, members of Heathlake’s board
also testified that the covenant can advance certain safety concerns, such as preventing the
opportunity for theft and other property crimes.

        Even with this backdrop, a liberal construction of the covenant does not answer the
difficult question of how much time must elapse before storage becomes semi-permanent.
We are confident that, by any measure, boat storage in excess of “six weeks plus” would
violate the Declaration. This lengthy duration would be directly at odds with the drafters’
intent of minimizing unsightly objects.

        The limits are not so obvious, however, when we consider more transitory periods
of storage. Heathlake insists that the line should be drawn at 24 hours, but the Declaration


        7
          The meaning of “semipermanently” is a legal question, which is not ordinarily an appropriate
subject for the testimony of lay witnesses. Even so, we note that testimony from one of Heathlake’s
witnesses underscores our concerns with the construction of this word. Testifying as a member of
Heathlake’s Architectural Control Committee, this witness observed that the covenant has “no definite time
frame in there for compliance” and “it is not definitive in all respects.”
                                                   10
contains many terms of temporal significance and none suggests a limit so narrow. For
instance, the Declaration forbids structures of a “temporary” character, such as mobile
homes, tents, and outbuildings. Temporary buildings are permitted for limited use during
construction periods, but the Declaration provides that such structures must be removed
“immediately” after completion of construction. In addition to provisions regarding the
permanent and semi-permanent storage of boats, the Declaration dictates that lots must be
maintained “at all times.” If an owner fails to cut his grass or keep his property within
community standards, the Declaration authorizes others to enter his lot and do anything
necessary to bring the property into compliance, provided “ten (10) days’ written notice” is
given. When examined as a whole, the Declaration contains language suggesting a
continuum of sorts, with “immediately” on one end and “permanently” and “at all times”
on the other. It is unclear precisely where “semipermanently” falls along that spectrum.

       This court has held previously that when a covenant is unclear, evidence outside the
four corners of the document may be considered when divining the intent of the drafters.
See Settlers Village Cmty. Improvement Ass’n, Inc. v. Settlers Village 5.6, Ltd., 828 S.W.2d
182, 185 (Tex. App.—Houston [14th Dist.] 1992, no writ) (summary judgment was
improper where covenant contained ambiguous term and parol evidence was needed to
determine intent of the parties); see also Baker v. Henderson, 153 S.W.2d 465, 470–71
(Tex. 1941) (construing covenant in favor of conveyance despite it being “certainly
ambiguous”); Highlands Mgmt. Co., Inc. v. First Interstate Bank of Tex., N.A., 956 S.W.2d
749, 756 (Tex. App.—Houston [14th Dist.] 1997, pet. denied) (stating that extrinsic
evidence was not admissible where there was no ambiguity); Candlelight Hills Civic Ass’n,
Inc. v. Goodwin, 763 S.W.2d 474, 477 (Tex. App.—Houston [14th Dist.] 1988, writ
denied) (same). In this case, the drafters of the Declaration were not called to testify about
the meaning of “semipermanently,” nor were the original members of the Architectural
Control Committee. Heathlake only produced evidence of how current and recent board
members had construed the covenant. There was no evidence at all that the covenant was

                                             11
drafted with the deliberate intent of proscribing the storage of boats for periods in excess of
24 consecutive hours.

       Heathlake’s rigid interpretation of the covenant departs in some ways from other
evidence suggesting that the covenant may allow for more permissive periods of storage.
Several witnesses from Heathlake’s board testified that the 24-hour rule was not a final or
official reading of the covenant. These witnesses recognized that the 24-hour rule was
instead a “work in progress.”

       On this record, the trial court had no basis for concluding that the drafters intended
through this covenant to restrict Wiese from storing his boat for more than 24 consecutive
hours. The term “semipermanently” is not defined in the Declaration, and we do not
believe it is capable of supporting a 24-hour definition as a matter of law. Reasonable
minds have differed already as to how a restriction against semi-permanent storage should
be implemented. From our research, we know that some communities in the Houston area
have determined — in express terms — that a boat is semi-permanently stored if kept for
more than 48 hours. See Sobsey v. Shannon Forest Homeowners Ass’n, No.
01-96-00206-CV, 1997 WL 381387, at *2 (Tex. App.—Houston [1st Dist.] July 10, 1997,
writ denied) (not designated for publication) (quoting similar restrictive covenant that
prohibited the “[p]ermanent and semi-permanent” storage of boats and other items for
more than 48 hours). Heathlake also produced one witness who testified that other
communities have taken the position “that this type of restriction should be looked at from
the standpoint of a three-day period.”

       The trial court erred by concluding as a matter of law that a boat is
semi-permanently stored when parked unscreened for more than 24 consecutive hours.
Because this erroneous conclusion provided the basis for the permanent injunction, the trial
court abused its discretion by ordering Wiese to refrain from storing his boat in the manner
described.


                                              12
              2.     Heathlake’s interpretation is not entitled to any presumption of
                     reasonableness
       Even though the Declaration is silent as to the 24-hour rule, Heathlake argues that
we should affirm the trial court’s judgment because Wiese has not demonstrated that
Heathlake’s interpretation of the covenant is arbitrary, capricious, or discriminatory.
Heathlake accordingly believes its interpretation is entitled to a presumption of
reasonableness, citing as authority section 202.004 of the Texas Property Code.

       Section 202.004 provides that “[a]n exercise of discretionary authority by a property
owners’ association . . . concerning a restrictive covenant is presumed reasonable unless
the court determines by a preponderance of the evidence that the exercise of discretionary
authority was arbitrary, capricious, or discriminatory.” Tex. Prop. Code Ann. § 202.004(a).
The Property Code does not define the scope of an association’s discretionary authority.
Other courts have considered this provision when reviewing issues bearing on an
association’s decision to grant or deny a homeowner’s request for a variance permit. See,
e.g., Leake v. Campbell, 352 S.W.3d 180, 183, 190 (Tex. App.—Fort Worth 2011, no pet.);
Uptegraph, 312 S.W.3d at 925, 932–35; see also La Ventana Ranch Owners’ Ass’n, Inc. v.
Davis, No. 03-09-00452, 2011 WL 2162886, at *11–12 (Tex. App.—Austin June 3, 2011,
no pet.). If we assume for argument’s sake that this provision also applies to an
association’s interpretation of its covenants, then Wiese must show that the interpretation
is arbitrary, capricious, or discriminatory. We conclude that Heathlake’s interpretation is
arbitrary on its face when evaluated in light of the Declaration’s language as a whole.
Therefore, even if a presumption of reasonableness applies in this case, it was overcome.

              3.     Nuisance theory

       Heathlake also argues that the injunction can be supported by a separate covenant in
the Declaration that restricts certain uses of property that may be considered a nuisance.
The terms of that covenant are as follows:



                                             13
       Section 8. Prohibition of Trade and Offensive Activities. No activity,
       whether for profit or not, shall be carried on on any Lot which is not related
       to single family residential purposes. No noxious or offensive activity of any
       sort shall be permitted nor shall anything be done on any Lot which may be
       or become an annoyance or a nuisance to the neighborhood.

Heathlake produced some evidence at trial that the boat constituted a nuisance, namely the
complaints of residents. Based on that evidence, the trial court concluded as a matter of law
that “[a]n unscreened boat . . . is a nuisance or annoyance to the neighborhood.”

       We reject Heathlake’s argument that the injunction can be sustained on this
independent basis. The trial court’s conclusion is not qualified by any benchmark of time,
and Heathlake cites no authority on appeal showing that an unscreened boat becomes an
annoyance or nuisance when stored in excess of 24 consecutive hours. Considering that
some communities permit homeowners to store their boats for as much as 48 hours without
interruption, we decline to hold that the indefinite covenants of this Declaration require the
removal of boats sooner. See Sobsey, 1997 WL 381387, at *2.

                                      CONCLUSION

       The Declaration contains undefined terms, and the trial court abused its discretion
by entering a permanent injunction based on those terms. Without reaching Wiese’s
remaining issues on appeal, we reverse the judgment of the trial court and remand for that
court to consider Heathlake’s request for statutory penalties. See Tex. Prop. Code Ann.
§ 202.004(c).


                                           /s/    William J. Boyce
                                                  Justice



Panel consists of Justices Boyce, Jamison, and McCally.




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