Mehran Rahbar, M.D., and Farinaz Arbab, M.D. v. Southampton Civic Club

Affirmed and Memorandum Opinion filed July 23, 2024.

In The

Fourteenth Court of Appeals

NO. 14-23-00444-CV

MEHRAN RAHBAR, M.D., AND FARINAZ ARBAB, M.D., Appellants
V.
SOUTHAMPTON CIVIC CLUB, Appellee

On Appeal from the 151st District Court
Harris County, Texas
Trial Court Cause No. 2022-05545

MEMORANDUM OPINION

Appellants Mehran Rahbar and Farinaz Arbab challenge the trial court’s
summary judgment and award of attorney’s fees in favor of appellee Southampton
Civic Club (“SHCC”). The Rahbars 1 argue that the trial court erred in interpreting
a deed restriction to prohibit them from renting their home to persons other than
family members; that SHCC is not the proper entity to enforce the subject deed

1
The parties refer to appellants as the Rahbars, so we do as well.
restriction against them; and that the trial court abused its discretion in awarding
SHCC attorney’s fees. We overrule the Rahbars’ issues and affirm the trial court’s
judgment.

Background

The Rahbars own a lot with improvements (the “Property”) located in
Southampton Place Addition (“Southampton” or the “subdivision”), Block Number
42, Lot Number 17, known as 2135 Bissonnet Street, Houston, Texas 77005. The
subdivision was placed on the market for home builders in 1923, following the
execution of a trust agreement between E.H. Fleming, its developer, and the San
Jacinto Trust Company, trustee. A reference incorporating the trust agreement and
restrictions (“Basic Restrictions”) was placed in each deed to lots sold in the
subdivision, binding all lot owners to the Basic Restrictions. The Basic
Restrictions were effective for an initial term of fifty years and subsequently
extended in 1973 and in 2013.

Established as an unincorporated civic association in 1929, SHCC exists to
preserve and protect the Basic Restrictions and to promote the maintenance,
beautification, and welfare of the subdivision. SHCC was incorporated under the
Texas Non-Profit Corporation Act in 2004. See Tex. Bus. Orgs. Code §§ 22.101
et seq. In 2011, SHCC filed a document entitled “Notice Relating to Deed
Restrictions Summary for Southampton Place” (the “Notice”) in the Harris County
property records. The Notice included SHCC’s summary of certain restrictions,
such as those relating to setback lines and alley easements. The Notice directed
interested persons to SHCC’s internet website for a “detailed summary” of the
applicable deed restrictions, as well as compliance procedures.

2
The Rahbars purchased the Property in 2010 and immediately began renting
the house for one-year terms to as many as five unrelated persons, usually students
attending a nearby university.

In 2022, SHCC sued the Rahbars for violating the following deed restriction:

No apartment house, or duplex will be permitted in the Addition; the
object of this provision being to prohibit multiple housing throughout
the entire addition.

SHCC alleged that the Rahbars were leasing the Property to several, unrelated
persons. SHCC sought declarations under the Texas Declaratory Judgment Act
(“DJA”) that the Basic Restrictions were valid and enforceable, that the Basic
Restrictions prohibit the Rahbars from using the Property for multiple housing
purposes or for any purpose other than as a residence for a single family, and that
the Basic Restrictions prohibit the Rahbars from utilizing the Property primarily
for financial gain rather than as a single-family residence. SHCC also sought
permanent injunctive relief and attorney’s fees.

The Rahbars filed a counterclaim to quiet title, alleging that the Notice was
an invalid encumbrance on their title. They also sought declarations under the
DJA concerning interpretation of the Basic Restrictions.

The parties filed competing motions for summary judgment. In an
interlocutory order, the trial court found that the Rahbars are bound by the Basic
Restrictions, which prohibit them from using the Property for anything other than a
single-family residence. The court held that the Rahbars breached the Basic
Restrictions and granted a mandatory injunction prohibiting them from leasing,
renting, or using in any way the Property for multiple housing purposes or for any
purpose other than as a single-family residence. In a separate order, the court

3
dismissed the Rahbars’ counterclaims. In a final judgment, the trial court awarded
SHCC its attorney’s fees. The Rahbars filed a timely appeal.

Standard of Review

We review a trial court’s ruling on a motion for summary judgment de novo.
Tarr v. Timberwood Park Owners Ass’n, Inc., 556 S.W.3d 274, 278 (Tex. 2018);
Texan Land & Cattle II, Ltd. v. ExxonMobil Pipeline Co., 579 S.W.3d 540, 542
(Tex. App.—Houston [14th Dist.] 2019, no pet.). To prevail on a traditional
motion for summary judgment, the movant must show that no genuine issue of
material fact exists and that it is entitled to judgment as a matter of law. Tex. R.
Civ. P. 166a(c). When both parties move for summary judgment on the same issue
and the trial court grants one motion and denies the other, we consider the
summary judgment evidence presented by both sides, determine all questions
presented, and, if we determine that the trial court erred, render the judgment the
trial court should have rendered. Tarr, 556 S.W.3d at 278; see also Wausau
Underwriters Ins. Co. v. Wedel, 557 S.W.3d 554, 557 (Tex. 2018) (“A declaratory
judgment granted on a traditional motion for summary judgment is reviewed de
novo.”).

Analysis

The Rahbars raise three issues on appeal. First, they argue that the trial
court erred by granting declaratory and injunctive relief regarding the Basic
Restrictions’ prohibition against using the Property for anything other than as a
residence for a single family. Second, they argue that the trial court erred by
dismissing the Rahbars’ counterclaims. Third, they challenge the trial court’s
award of attorney’s fees.

4
A. SHCC’s Motion for Summary Judgment

The summary judgment in favor of SHCC requires this court to review the
trial court’s interpretation of the Basic Restrictions.

This is not the first occasion for a court to interpret the exact deed restriction
at issue. In the first case to address the issue, a homeowner, Pardo, rented her
house to a partnership for business purposes. Pardo v. Southampton Civic Club,
239 S.W.2d 141, 142 (Tex. Civ. App.—Galveston 1951, writ ref’d). SHCC sued
Pardo for violating the Basic Restrictions and to enjoin her from using or causing
her property to be used for any purpose other than as a dwelling and residence for a
single family. Id. The court of appeals concluded that it was undisputed that the
lots in Southampton “were restricted to the use for single family dwelling and for
[certain] business purposes.” Id. at 143. Specifically, all of the lots reserved for
residential use “were designated and sold as integral parts of a ‘high class
exclusive residential’ area and were restricted to the exclusive use of a residence of
a single family.” Id. at 144. Accordingly, the court of appeals affirmed the
injunction against Pardo.

The next case was Rudy v. Southampton Civic Club, 271 S.W.2d 431 (Tex.
App.—Waco 1954, writ ref’d n.r.e.). The Rudys erected on their lot a garage
apartment as a separate structure from their dwelling house and rented it to persons
other than members of their family. Id. at 432. SHCC sued to enjoin the Rudys
from using or permitting the use of their lot for any purpose other than a single-
family dwelling and particularly from using or permitting to be used the garage
apartment for the purpose of housing any person other than members of the Rudy
family. Id. The court of appeals followed the Pardo court’s “express[] [holding]
that the use of the lot involved ‘must be limited to a single family residence.’” Id.

5
at 433 (quoting Pardo, 239 S.W.2d at 145). Thus, the court concluded that SHCC
was entitled to injunctive relief as a matter of law.

In Southampton Civic Club v. Couch, 322 S.W.2d 516, 517 (Tex. 1959),
SHCC sought to restrain a homeowner, Couch, from renting a room or rooms in
his residence for lodging. Most of the lodgers were students. Id. The court held
that the renting of a room or rooms in a private residence, which is merely
incidental to its use as a family residence, does not violate a restriction limiting the
use of the property to a single-family residence. Id. at 518. The court reasoned
that there is no language in the Basic Restrictions that specifically forbids the
renting of a room or rooms, and that a family home in which a spare room is
incidentally rented is nonetheless a single-family residence. Id. at 519. The court
remanded the case to the trial court for a new trial to determine the nature and
extent of the use of the defendants’ premises. Id. at 520. The court stated that if
the evidence conclusively established that a particular defendant was operating a
rooming or boarding house as a business or was “using his dwelling house
primarily as a source of financial gain rather than as a residence for himself and his
family and domestic servants, that activity should be enjoined.” Id.

In Ullrich v. Southampton Civic Club, 373 S.W.2d 511, 511-12 (Tex.
App.—Texarkana 1963, no writ), the Ullrichs rented their garage apartment to a
university student, and SHCC sought and obtained injunctive relief to enjoin the
Ullrichs from doing so. The court of appeals affirmed the trial court’s injunction
because the “the evidence established that the Ullrichs were renting, for financial
gain, space on their property for use, and used, as a housekeeping unit” and thus
were violating the Basic Restrictions. Id. at 513.

In Southampton Civic Club v. Foxworth, 550 S.W.2d 152, 153 (Tex. App.—
Houston [14th Dist.] 1977, writ ref’d n.r.e.), SHCC alleged the Foxworths were

6
renting an apartment, located upstairs from their unattached garage, to a university
student for profit, violating the Basic Restrictions. Our court, following Couch,
concluded that the evidence established that the Foxworths rented the garage for
financial gain in violation of the restrictions. Id. at 153-54. The court rendered
judgment that the Foxworths be enjoined from renting the garage apartment as a
source of financial gain. Id. at 154.

Finally, in Finkelstein v. Southampton Civic Club, 675 S.W.2d 271, 272
(Tex. App.—Houston [1st Dist.] 1984, writ ref’d n.r.e.), the property owner,
Finkelstein, without a valid partition of the original lot, attempted to subdivide her
lot into two lots, each with its own separate residential structure—one of which
was a frame building that Finkelstein had been renting to tenants. The court
concluded that this violated the Basic Restrictions’ multiple-housing provision:

Summary judgment evidence showed that appellant Carol Finkelstein
rented out the two-story wooden frame building to two young women
not related to her or to each other, a clear violation of the prohibition
against multiple family housing. Absent a valid partition of the
original lot, rental of either building to a tenant violates the multiple
housing prohibition so long as the other building is occupied by a
family. Appellants have, in effect, sought to nullify the restriction’s
prohibition against multiple housing by simply creating multiple lots,
while ignoring the limitations on partition imposed by the two earlier
discussed restrictions. Such an attempted resubdivision constitutes an
invalid infringement on the restriction’s prohibition against multiple
housing.

Id. at 277-78.

The foregoing authority makes clear that the Rahbars have violated the Basic
Restrictions by renting their house for financial gain to persons unrelated to them.
The Rahbars argue that the definition of “family” is too restrictive for modern
usage, but we, as an intermediate appellate court, decline to deviate from

7
established precedent, and we are further persuaded by the uniform holdings of our
sister courts. See Penrod Drilling Corp. v. Williams, 868 S.W.2d 294, 296 (Tex.
1993) (per curiam) (explaining that Texas courts are obligated to follow higher
Texas courts and the United States Supreme Court); In re Mittelsted, 661 S.W.3d
639, 658 (Tex. App.—Houston [14th Dist.] 2023, orig. proceeding) (under the
doctrine of horizontal stare decisis, a court owes respect to its own precedents;
three-judge panels of a court must follow materially indistinguishable decisions of
earlier panels of the same court unless a higher authority has superseded that prior
decision) (citing Mitschke v. Borromeo, 645 S.W.3d 251, 256 (Tex. 2022)).

We overrule the Rahbars’ first issue.

B. The Rahbars’ Motion for Summary Judgment

In their second issue, the Rahbars contend that the trial court erred by
dismissing their counterclaim. According to the Rahbars, SHCC is not a property
owners’ association, and the Notice is not a valid dedicatory instrument governing
the Rahbars’ property.

Chapter 202 of the Property Code governs construction and enforcement of
restrictive covenants. See Tex. Prop. Code §§ 202.002 et seq. A property owners’
association or other representative designated by an owner of real property may
initiate, defend, or intervene in litigation or an administrative proceeding affecting
the enforcement of a restrictive covenant or the protection, preservation, or
operation of the property covered by the dedicatory instrument. Id. § 202.004(b).
For purposes of chapter 202, “property owners’ association” means an
incorporated or unincorporated association owned by or whose members consist
primarily of the owners of the property covered by the dedicatory instrument and
through which the owners, or the board of directors or similar governing body,
manage or regulate the residential subdivision, planned unit development,
8
condominium or townhouse regime, or similar planned development. Id.
§ 202.001(2).

SHCC established that it is an incorporated association whose members
consist of the owners of property covered by the dedicatory instrument. The
dedicatory instrument is the original 1923 deed restrictions, which were extended
in 1973 and 2013.2 SHCC produced its articles of incorporation, which state that
SHCC is a non-profit corporation organized to preserve, maintain, and protect the
deed restrictions applicable to Southampton Place Addition, and to take all action
necessary to promote the health, safety, and welfare of the subdivision. The
corporation has one class of members, open to the residents or property owners in
the subdivision who pay annual dues. According to SHCC’s bylaws, it is governed
by a 12-member board of directors, which has the power to, among other actions,
enforce by legal means the provisions of the deed restrictions and the bylaws.

Thus, SHCC is considered a property owners’ association for purposes of
chapter 202 and may initiate or defend litigation affecting the enforcement of
Southampton Place Addition’s deed restrictions. Id. § 202.004(b). The Rahbars
assert that SHCC “wrongfully and misleadingly claims its authority to regulate the
subdivision,” but they did not produce any evidence controverting SHCC’s articles
of incorporation or bylaws.

2
“Dedicatory instrument” means each document governing the establishment,
maintenance, or operation of a residential subdivision, planned unit development, condominium
or townhouse regime, or any similar planned development. The term includes a declaration or
similar instrument subjecting real property to:
(A) restrictive covenants, bylaws, or similar instruments governing the administration or
operation of a property owners’ association;
(B) properly adopted rules and regulations of the property owners’ association; or
(C) all lawful amendments to the covenants, bylaws, instruments, rules, or regulations.
Tex. Prop. Code § 202.001(1).

9
We turn to the second part of the Rahbars’ argument, which is that SHCC
filed an invalid recordation in the county deed records. In 2011, SHCC filed the
Notice for the purpose of “providing information relating to the covenants,
conditions and restrictions (‘Restrictions’) applicable to the property within
Southampton Place.” The Notice contains a recital that Southampton Civic Club,
Inc., as successor to the unincorporated Southampton Civic Club, has “[o]ver the
past 80 years . . . administered and enforced the Restrictions for the benefit of the
owners of property within Southampton.” In the Notice, SHCC directed interested
persons to its internet website for a “detailed summary” of the applicable deed
restrictions, as well as SHCC’s compliance procedures.

The Notice is not an encumbrance and does not create a cloud of title.
Under Texas law, an encumbrance is an interest in realty that diminishes its value
and is a burden on its transfer. City of Dayton v. Allred, 68 S.W.2d 172, 178 (Tex.
1934); Nationwide of Bryan, Inc. v. Dyer, 969 S.W.2d 518, 521 (Tex. App.—
Austin 1998, no pet.). Examples of encumbrances include liens, claims,
easements, and servitudes. Allred, 68 S.W.2d at 178. Deed restrictions, such as
the ones here, are also considered encumbrances. Levine v. Turner, 264 S.W.2d
478, 479 (Tex. App.—El Paso 1954, writ dism’d) (“As a general rule such
restrictions as to the use to which premises may be put constitute
encumbrances . . . .”).

By filing the Notice, SHCC has gained no right or interest in the Rahbars’
property. The Notice does not diminish the value of the Rahbars’ property, nor
does it burden the transfer of title. The Notice merely provides a written summary
of an already existing encumbrance—i.e., the Basic Restrictions. The Notice is not
an encumbrance on title. See, e.g., Dyer, 969 S.W.2d at 521 (arbitration clause in
home sales contract did not constitute an encumbrance on property).

10
We overrule the Rahbars’ second issue.

C. Attorney’s Fees

In their third issue, the Rahbars challenge the award of attorney’s fees to
SHCC. Attorney Linda Glover testified by affidavit regarding fees incurred in
prosecuting SHCC’s affirmative claims. Glover also testified regarding fees
incurred by two other lawyers in defending against the Rahbars’ counterclaims.
All three attorneys submitted contemporaneous billing records.

The Rahbars attack several aspects of the fee award, but they do not argue
substantively that the award lacks legally or factually sufficient evidentiary
support. We address each of the Rahbars’ arguments in turn.

1. Resolution by trial court instead of jury

In the first part of their issue, the Rahbars assert in a heading that they
“disputed and controverted the basis, reasonableness, necessity and amount of
attorney’s fees claimed by SHCC for prosecuting its claims.” However, the
substance of the argument is that the trial court erred by deciding the fee issue
rather than submitting the question of attorney’s fees to a jury, so we limit our
discussion to this point. See Tex. R. App. P. 38.1.

The Rahbars contend that they made a timely jury demand but the court
“summarily” awarded SHCC its attorney’s fees as a matter of law. SHCC
responds that the Rahbars waived their complaint by failing to timely object to the
trial court’s decision to hear the attorney’s fees issue rather than a jury. We agree
with SHCC.

“When a party has perfected its right to a jury trial but the trial court instead
proceeds to trial without a jury, the party must either object on the record to the
trial court’s action or indicate affirmatively in the record it intends to stand on its

11
perfected right to a jury trial.” Arredondo v. Betancourt, 383 S.W.3d 730, 746
(Tex. App.—Houston [14th Dist.] 2012, no pet.); accord also Bank of Houston. v.
White, 737 S.W.2d 387, 388 (Tex. App.—Houston [14th Dist.] 1987, orig.
proceeding) (holding that trial court was not authorized to remove case from jury
docket once it has been properly placed thereon if “any party adversely affected
objects to such removal”).

The record here does not reflect that the Rahbars either affirmatively
objected to the trial court’s decision to remove the attorney’s fee issue from a
jury’s consideration or indicated that they intended to stand on their right to a jury
trial of this issue. At the hearing on SHCC’s fee application, at which Dr. Mehran
Rahbar appeared pro se and SHCC appeared represented by counsel, the judge
asked whether SHCC intended to offer testimony or rely on the submitted
affidavits. SHCC responded that it would rely on the affidavits. The judge agreed
to this, saying, “Okay. Then I will give you a few minutes to start, and then I will
let Dr. Rahbar respond. Okay?” SHCC’s counsel indicated her agreement, but Dr.
Rahbar did not answer. After SHCC presented argument and the judge invited Dr.
Rahbar to respond, Dr. Rahbar said:

I don’t really understand why we’re here today because everything
has been in writing and it has been very inconvenient for me and my
case award. So I’m not going to take the Court’s time by repeating
what I have already responded in my affidavit and I presented the
responses and everything and I assume that you have read and I’m
sure you have read all of them.
He also argued that the case law relied on by SHCC was inapplicable. At
the end of the hearing, the judge stated, “I will take it under advisement and make
a ruling and sign an order as to what amount, if any, of attorney’s fees will be
awarded.” Dr. Rahbar made no objection.

12
Based on the record, we conclude that the Rahbars waived their appellate
complaint regarding the trial court acting as fact finder. See Walker v. Walker, 619
S.W.2d 196, 198 (Tex. App.—Tyler 1981, writ ref’d n.r.e.) (explaining that even if
jury demand was made and jury fee paid, party waives right to jury when he fails
to object to proceeding without a jury when the case is called to trial; after the trial
court rules adversely to a party, he cannot complain that he was entitled to have a
jury, not the court, decide the fact question).

In another heading in their brief, the Rahbars assert that their expert’s
“controverting affidavit” was admitted over SHCC’s objections, for the fact finder
to consider. Again, however, the substance of this argument is that “the trial court
erred by denying the jury determination of the necessity of SHCC’s counsel’s
services, for which the fees were incurred” and that the “trial court’s denial of jury
trial was reversible error.” The Rahbars do not argue substantively any fact
questions purportedly raised by their expert’s affidavit.

2. Reversal of attorney’s fees if merits ruling reversed

In another part of their third issue, the Rahbars argue that, if we reverse the
trial court’s finding of breach of restrictive covenant, then we should also reverse
the fee award. Because we are not reversing the trial court’s summary judgment
on any basis, this argument is moot. Teal Trading & Dev., LP v. Champee Springs
Ranches Prop. Owners Ass’n, 534 S.W.3d 558, 595 (Tex. App.—San Antonio
2017) (“However, because we are not reversing the trial court’s judgment with
regard to the Non-Access Easement, we need not reverse the award of attorney’s
fees.”), aff’d, 593 S.W.3d 324 (Tex. 2020).

13
3. SHCC’s capacity and standing to sue

The Rahbars also contend that they “disputed and controverted SHCC’s
capacity to sue” and that the fee award was in error because SHCC “has no
justiciable, proprietary interest in any specific property or properties within the
Southampton subdivision.” This argument challenges both capacity and standing,
which are distinct concepts. Nootsie, Ltd. v. Williamson Cnty. Appraisal Dist., 925
S.W.2d 659, 661 (Tex. 1996) (“A plaintiff has standing when it is personally
aggrieved, regardless of whether it is acting with legal authority; a party has
capacity when it has the legal authority to act, regardless of whether it has a
justiciable interest in the controversy.”).

Standing is a necessary component of subject-matter jurisdiction and is
determined at the time suit is filed in the trial court. Tex. Ass’n of Bus. v. Tex. Air
Control Bd., 852 S.W.2d 440, 445-46 (Tex. 1993). An association has standing to
sue when it satisfies a three-prong test: (1) the members must otherwise have
standing to sue in their own right; (2) the interests it seeks to protect must be
germane to the organization’s purpose; and (3) neither the claim asserted nor the
relief requested may require the participation of individual members in the lawsuit.
See id. at 447.

The first requirement “should not be interpreted to impose unreasonable
obstacles to associational representation.” Id. “Ordinarily, any person entitled to
benefit under a restrictive covenant may enforce it.” Anderson v. The New
Property Owners’ Ass’n of Newport, Inc., 122 S.W.3d 378, 384 (Tex. App.—
Texarkana 2003, pet. denied). “[G]enerally, an interested property owner may
enforce a restrictive covenant.” Id. at 384-85 (citing Giles v. Cardenas, 697
S.W.2d 422, 427 (Tex. App.—San Antonio 1985, writ ref’d n.r.e.)). The record
reflects that SHCC is a Texas nonprofit corporation whose members include

14
property owners in the subdivision. Under the Basic Restrictions, the right to
“enforce such restrictions . . . shall be vested in the respective lot owners.” SHCC
members, as property owners, would have standing to bring this suit to enforce
deed restrictions. See id. at 385. Accordingly, SHCC satisfies the first
requirement for standing as an association. See id.

The record reflects that the primary purpose of SHCC is to preserve,
maintain, and protect the deed restrictions covering Southampton Place Addition
and to take all action necessary to promote the health, safety, and welfare of the
subdivision. Because the interests SHCC seeks to protect in its suit are germane to
the association’s purpose, it satisfies the second prong of the test. See Tex. Ass’n
of Bus., 852 S.W.2d at 447-48; Anderson, 122 S.W.3d at 385.

Finally, the claims SHCC asserts and the relief it requests do not require the
participation of any individual members. See Anderson, 122 S.W.3d at 385.
When, as here, an association seeks injunctive relief, it is reasonable to suppose
that the relief sought will inure to the benefit of the injured members. See Tex.
Ass’n of Bus., 852 S.W.2d at 448; Anderson, 122 S.W.3d at 385. SHCC did not
need to prove the individual circumstances of its members to obtain such relief.
See Tex. Ass’n of Bus., 852 S.W.2d at 448; Anderson, 122 S.W.3d at 385. Having
met all three requirements, we conclude that SHCC, as an association, had standing
to bring suit against the Rahbars for allegedly violating the Basic Restrictions.

With regard to capacity or authority, we have already determined above that
SHCC had capacity to sue pursuant to section 202.004(b). Garden Oaks Maint.
Org. v. Chang, 542 S.W.3d 117, 139 n.18 (Tex. App.—Houston [14th Dist.] 2017,
no pet.) (“An entity meeting the definition of a POA under chapter 202 also has
capacity to sue under section 202.004(b).”).

15
In this same part of their issue in which they argue that SHCC lacked a
justiciable interest, the Rahbars also argue that SHCC sought only an advisory
opinion for future hypothetical adjudications. We disagree. SHCC’s live pleading
makes clear that it sued the Rahbars for breach of the deed restrictions. SHCC’s
answer makes clear that it is defending against the Rahbars’ request for
declarations. The trial court’s resolution of these claims applies to the parties at
hand and does not constitute an advisory opinion. Lede v. Aycock, 630 S.W.2d
669, 671 (Tex. App.—Houston [14th Dist.] 1981, writ ref’d n.r.e.) (“An advisory
opinion is one which does not constitute specific relief to a litigant or affect legal
relations.”).

4. Pleading

The Rahbars contend that SHCC did not plead for attorney’s fees for
defending their DJA counterclaim.

The purpose of pleadings is to give adverse parties notice of each party’s
claims and defenses, as well as notice of the relief sought. Horizon/CMS
Healthcare Corp. v. Auld, 34 S.W.3d 887, 896-97 (Tex. 2000); see also Tex. R.
Civ. P. 301 (“The judgment of the court shall conform to the pleadings.”). Texas
follows a “fair notice” standard of pleading, meaning we look to whether the
opposing party can ascertain from the pleading the nature and basic issues of the
controversy and what testimony will be relevant. Daugherty v. Highland Capital
Mgmt., L.P., No. 05-14-01215-CV, 2016 WL 4446158, at *3 (Tex. App.—Dallas
Aug. 22, 2016, no pet.) (mem. op.).

In its live pleading, SHCC sought declaratory relief under the DJA and
expressly sought its attorney’s fees under the DJA. This was sufficient for the trial
court to award attorney’s fees to SHCC under the act. See, e.g., Nolte v. Flournoy,
348 S.W.3d 262, 270 n.3 (Tex. App.—Texarkana 2011, pet. denied) (“A party is
16
also not required to request attorney’s fees with specificity to be eligible for an
award under the Declaratory Judgments Act, so long as a general request for
attorney’s fees exists.”); Zurita v. SVH-1 Partners, Ltd., No. 03-10-00650-CV,
2011 WL 6118573, at *8 (Tex. App.—Austin Dec. 8, 2011, pet. denied) (mem.
op.) (“It is undisputed that AZR sought declaratory relief against the Landlord
under the UDJA. Thus, the trial court was authorized to award attorneys’ fees to
any party with pleadings requesting them.”).

5. Expert disclosure

The Rahbars argue that SHCC never disclosed an expert to testify as to
reasonable fees incurred in defending against the Rahbars’ counterclaims seeking
declaratory relief. The record establishes otherwise.

SHCC disclosed its expert on attorney’s fees by stating in part, “Ms. Glover
is counsel for SHCC and will offer testimony regarding the necessity and
reasonableness of fees and costs paid and incurred by SHCC to prosecute the
claims asserted in this lawsuit.” The Rahbars rely on SHCC’s usage of the word
“prosecute” to argue that the association did not disclose Glover as an expert on
defensive fees.

We disagree. SHCC’s disclosure provided the Rahbars with the general
substance of counsel’s anticipated testimony. Corey v. Rankin, No. 14-17-00752-
CV, 2018 WL 5914531, at *8 (Tex. App.—Houston [14th Dist.] Nov. 13, 2018, no
pet.) (mem. op.) (“A disclosure identifying an attorney’s fees expert and stating
that the expert will be testifying about the reasonableness and necessity of
attorney’s fees is sufficient to give the ‘general substance’ of that expert’s
testimony.”).

17
6. Appellate fees

The Rahbars argue SHCC did not plead for its prospective attorney’s fees
and failed to disclose any expert to testify as to the reasonableness and necessity of
appellate fees.

The general rule is that a trial court’s award of attorney’s fees may include
appellate attorney’s fees. Hunsucker v. Fustok, 238 S.W.3d 421, 431 (Tex. App.—
Houston [1st Dist.] 2007, no pet.); Keith v. Keith, 221 S.W.3d 156, 169 (Tex.
App.—Houston [1st Dist.] 2006, no pet.). SHCC’s designation of Glover as an
expert on attorney’s fees gave the Rahbars sufficient notice of Glover’s intended
testimony, including appellate attorney’s fees. E.g., Corey, 2018 WL 5914531, at
*9 (attorney’s testimony supported award of appellate fees; expert designation did
not purport to limit attorney’s testimony to fees incurred as part of the trial court
proceedings).

Further, the Rahbars did not argue below that SHCC’s evidence of appellate
fees was outside the pleadings. Thus, the issue was tried by consent. See
Mansfield v. Mansfield, No. 04-18-00551-CV, 2019 WL 6138984, at *4 (Tex.
App.—San Antonio Nov. 20, 2019, pet. denied) (mem. op.) (“Because [the
appellant’s] attorney did not object to the absence of any pleadings when the trial
court addressed the issue of an award of appellate attorney’s fees, we hold the issue
was tried by consent.”); Sheen v. Sheen, No. 03-18-00358-CV, 2019 WL 2554570,
at *5 (Tex. App.—Austin June 21, 2019, no pet.) (mem. op.) (issue of appellate
attorney’s fees was tried by consent when the appellee’s attorney “testified
regarding his trial and appellate fees without objection”).

* * *

18
For the foregoing reasons, we overrule the Rahbars’ third issue in its
entirety.

Conclusion

We affirm the trial court’s judgment.

/s/ Kevin Jewell
Justice

Panel consists of Justices Jewell, Bourliot, and Poissant.

19