Adrian Evans and Cynthia Evans v. David Livingston and Miranda Livingston

In The

Court of Appeals

Ninth District of Texas at Beaumont

________________

NO. 09-23-00123-CV
________________

ADRIAN EVANS AND CYNTHIA EVANS, Appellants

V.

DAVID LIVINGSTON AND MIRANDA LIVINGSTON, Appellees

________________________________________________________________________

On Appeal from the 75th District Court
Liberty County, Texas
Trial Cause No. 21DC-CV-00818
________________________________________________________________________

MEMORANDUM OPINION

Adrian Evans and Cynthia Evans (“Evans”) and other property owners

(collectively, the “Evans parties”) sued David Livingston and Miranda Livingston

(“Livingston”), alleging a violation of the restrictive covenants that applied to their

subdivision. Livingston answered and counterclaimed against Evans, contending

that Evans violated the restrictive covenants. Both parties sought injunctive and

1
declaratory relief and attorneys’ fees. Livingston moved for summary judgment,

which the trial court partially granted in an interlocutory order.

Pursuant to the parties’ joint request, the trial court later granted a final

judgment making its prior interlocutory order final and denying the injunctive and

declaratory relief and attorneys’ fees sought by both parties.

In four appellate arguments, Evans contends that the trial court erred in (1)

denying a hearing on his Motion for New Trial, (2) granting Livingston’s Motion

for Summary Judgment, (3) failing to enter Findings of Fact and Conclusions of

Law, as requested, and (4) signing a judgment that was not final. 1 Livingston raised

two additional cross points addressing the trial court’s denial of attorneys’ fees and

its failure to decide whether Evans violated the restrictions. We affirm the trial

court’s judgment.

BACKGROUND

In 1978, W. R. Properties, Inc. (“Developer”) made a Declaration of

Covenants, Conditions, and Restrictions for Shady Oaks Subdivision

(“Declaration”), and had that Declaration recorded in the property records of Liberty

County, Texas on November 15, 1978. In pertinent part, the Declaration provides:

NOW, THEREFORE, IT IS HEREBY DECLARED that all of the
property described above . . . shall be held, sold and conveyed, subject

1
The appeal is filed in the names of Adrian and Cynthia Evans, only. The
additional property owners who were Plaintiffs in the trial court are not parties to the
appeal.
2
to the following easements, covenants, restrictions and conditions
which are for the purpose of protecting the value and desirability of,
and which shall run with, the real property and shall be binding on all
the parties having any right, title or interest in or to the above-described
property or any part thereof, and their heirs, successors and assigns, and
which easements, restrictions and conditions shall inure to the benefit
of Developer:

1. All lots located within the Subdivision shall be used for residential
purposes only, and no business of any type, kind or character shall
be operated thereon, nor shall any lot be used for any type of
commercial purposes, except by written approval of Developer, and
as hereinafter set forth. This restriction shall not apply to lots
adjoining F.M. Highway Nos. 1008 and 2797. Without any
exception, no business shall sell alcoholic beverages for “open-
premises” consumption.

....

15. The following provision shall apply to all lots in the Subdivision,
except . . . Lots Nos. Twenty-five (25) through Thirty-three (33)
and Lots Nos. Thirty-eight (38) through Sixty-three (63). No
residence constructed on a lot shall be of less than twelve hundred
(1200’) square feet of covered floor space, exclusive of carport,
garage, patio and porch, and all residences shall be built on a
concrete slab or concrete pier. Each residence shall be built out of
brick, stone, or some other type of masonry or painted or stained
redwood, cedar, finished lumber, cypress, or treated pine logs. Lot
owners shall furnish Developer with the plans and Specifications
of all structures, including residences, which the lot owner plans
to build or locate on the property, and Developer must approve
such plans and specifications in writing prior to the start of
construction or location of the structure.

16. The following provisions shall apply only to Lots Nos. Twenty-
five (25) through Thirty-three (33) and Lots Nos. Thirty-eight (38)
through Sixty-three (63) of said Subdivision:

(a) One (1) and only one (1) mobile home, being a minimum
of eight (8’) feet wide by at least thirty-five (35’) feet long,
3
shall be allowed on a lot, and may be used as a residence
only. The mobile home is to [be] set up in a permanent
manner; that is, on a concrete slab or on a concrete pier or
good quality concrete blocks. New or freshly painted
skirting must be placed around at least three (3) sides of
the mobile home, those being the side that faces the front
property line and the two (2) sides that face the side
property lines.

(b) If and whenever a lot owner chooses to build a permanent
residence on said property, the one (1) and only one (1)
mobile home shall be allowed to remain on the property
until the permanent residence can be constructed, such
period not to exceed one (1) year unless a time extension
is granted by the original Developer. Such residence shall
be constructed in compliance with the covenant set forth
in paragraph “15” above.

17. Developer or any lot owner may enforce these restrictions by a
proceeding in law or in equity. The invalidation of any one or more
of the above restrictions and covenants by paramount authority
shall not affection [sic] or alter any of the remaining restrictions
and covenants. The restrictions and covenants shall be construed as
covenants running with the land, and they shall be enforceable,
either at law or in equity; and they shall be binding upon the
purchaser of each lot, their heirs, legal representatives and assigns.
The rights and privileges of Developer shall pass to and be binding
upon Developer’s successors and assigns.

In 1991, Adrian and Cynthia Evans bought lot 101, and in 2021, David and

Miranda Livingston bought lots 106, 107, and 108 in the Shady Oaks Subdivision.

In May 2021, David Livingston’s parents purchased a 1,900 square foot modular

home and placed it on lot 107. They modified this prefabricated home by placing it

on a concrete slab and by installing composite shingle roofing and stone and Hardie

plank siding, which Livingston’s expert, Ken Manfredi, (“Manfredi”) described as
4
“a concrete composite siding,” and a “fiber cement siding.” He further stated that

the carport and porch were constructed out of cedar.

Evans objected to Livingston’s decision to place a prefabricated modular

home on lot 107 and sued the Livingstons, contending that the restrictive covenants

governing the subdivision did not permit a mobile home on lot 107, since, according

to the Evans, mobile homes were allowed on lots twenty-five through thirty-three

and thirty-eight through sixty-three, only. Several Shady Oaks property owners later

joined Evans’s suit.

Livingston answered and counterclaimed against Evans, alleging that (1) the

structure on lot 107 met the deed restrictions; (2) the restrictions in paragraph 16

applied only to lots twenty-five through thirty-three and lots thirty-eight through

sixty-three, and therefore did not apply to lot 107; and (3) Evans’s home business,

which provided swimming lessons on lot 101, violated the restriction that property

within the Shady Oaks subdivision be used for residential purposes, only, not

business or commercial purposes.

Livingston moved for a traditional summary judgment, arguing that the

structure on lot 107 complied with the restrictive covenants, thereby negating the

Evans parties’ contrary argument. In the alternative, Livingston argued that the

restrictions specifically referencing lots twenty-five through thirty-three and lots

thirty-eight through sixty-three did not apply to lot 107. In support of that position,

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they attached David Livingston’s unsworn declaration as well as the unsworn

declaration of their real estate expert, Manfredi.

In David Livingston’s declaration, he stated that the home exceeded 1,200

square feet, that it was “built on a concrete slab and pier and beam foundation[,]”

and that it “would be built out of brick, stone, or other masonry or painted or finished

lumber[,]” with James Hardie siding and a stone exterior. He continued, stating that

the structure had a composite shingle roof, two-by-six wall studs, and that the

interior walls were made of painted wallboard. Livingston supported his contention

about swimming lessons on the Evans property with printouts from social media

sites.

Manfredi’s declaration sets out his experience as a builder and real estate

broker/owner operator. He states that he has “built and rehabbed over 50 million

dollars in residential property through the greater Houston market[,]” and that he is

“familiar with various types of construction materials, types of foundations, and

general construction practices.” Based on his inspection of the structure on lot 107,

Manfredi described the structure as

a prefabricated home that has been extensively modified. It is situated
on a concrete slab foundation and a concrete pier and beam foundation.
The Home is framed with 2x6 wooden studs. The exterior of the Home
is James Hardie siding and stone. The Home is nearly 2,000 square feet
in living space, excluding the patio and carport.

....

6
The siding is a concrete composite siding, which is a top-of-the-line
fiber cement siding. Fiber cement is a composite material comprised of
cellulose wood fibers, sand, and water. The carport and porch are also
constructed out of cedar.
....

Further, it is my opinion that the Home should not be considered a
mobile home. The Home has undergone significant modifications. This
framing was prefabricated; however, the entire Home has been
modified – from the foundation to the roof. The Home has a slab and
pier and beam foundation. It could not be removed from the foundation
without significant expense and effort. Further, the siding is stone and
Hardie plank. Lastly, the roof is composite shingles. These are
construction features that are not seen in mobile homes – rather, these
are elements of traditional home construction. In my inspection of the
Home, it was not readily apparent that this was a prefabricated home.
The only potential element that shows this is a prefabricated home is
the footprint or the dimensions of the Home. Otherwise, the Home has
all the features of a standard construction home. It is my opinion that
this is not a mobile home.

Lastly, during my inspection of the Home, I had the opportunity to view
other homes within the Shady Oaks Subdivision. Based on my review
of the other homes, the Home is constructed to the same or similar
standards of the other homes. More particularly, neighboring homes use
the same James Hardie siding and stone exterior.

The Evans parties responded to Livingston’s Motion for Summary Judgment,

claiming that there was a genuine issue of material fact about the Livingstons’

structure conforming to the restrictive covenants and how the restrictions would

apply to a mobile home on lot 107. The Evans parties rely on and attach the affidavits

of Adrian and Cynthia Evans, which, after setting out that the affiants are of legal

age, sound mind, and have personal knowledge, state:

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[We] gave notice to the Livingston’s [sic] that mobile homes, modular
homes, were not allowed on lot 107.

The Livingstons moved the mobile home onto lot 107 in July 2021. The
Livingston’s [sic] were asked not to put the mobile home in the
neighborhood. They were advised that mobile homes were allowed on
lots 25-33 and 38-63. Lot 107 is not one of the permissible lots. They
moved the mobile home in, started to set it up, and placed it over a
pipeline. They had to move the mobile home off the pipeline easement
and kept trying to say they were moving it on lot 107.

The mobile home was not built on lot 107, but was built by Palm Harbor
Homes at a different location than lot 107. See Response to Admissions
No. 2 Exhibit “E” and “F” attached hereto.

The mobile home is not built out of brick, stone, or some other type of
masonry or painted or treated redwood, cedar, finished lumber, cypress,
or treated pine logs.

Exhibits E and F, referenced in David and Cynthia Evans’ affidavits, are

Livingston’s admissions, which establish that Livingston received a copy of the deed

restrictions and that the structure in question is a manufactured home purchased from

Palm Harbor Villages.

Both parties objected to the other’s summary judgment evidence. The Evans

parties objected that David Livingston’s supporting declarations were “not easily

controverted, contain[ed] hearsay, contain[ed] legal conclusions, and [were] not

supported by legally sufficient evidence.” The Evans parties further objected that

Livingston’s unsworn declarations contained “[u]nsupported conclusory

statements” and were “not proper Summary Judgment evidence.” Livingston

objected that the Evans parties’ response to the Motion for Summary Judgment was
8
inadequate because the attached affidavits were conclusory and did not explain the

basis for their purported personal knowledge. Livingston also objected that the

pleadings on which the Evans parties sought to rely are not competent summary

judgment evidence.

Although the appellate record does not include the trial court’s order on the

parties’ objections, the Evans parties’ Motion for Clarification states that the trial

court sustained their objection number four to Livingston’s Motion for Summary

Judgment (the social media pages about swimming lessons), and overruled

objections two, three, five, and six. The Evans parties’ objection four addresses

authentication of the social media pages Livingston attached to their motion, while

the Evans parties’ remaining objections attack the Livingston declarations as

containing hearsay, legal conclusions, and unsupported conclusory statements, and

as “lack[ing] a jurat” and being “not easily controverted[.]” Although the appellate

record omits the trial court’s ruling on the parties’ objections, the trial court did grant

an interlocutory summary judgment in favor of Livingston

as to the claims asserted by Plaintiff[]s Adrian and Cynthia Evans is
GRANTED. The Court RENDERS judgment denying Plaintiffs’
request for permanent injunction and declaratory judgment action in
full. Counter-Plaintiffs’ Motions for Summary Judgment on their
request for permanent injunction and declaratory relief against Counter-
Defendants Adrian Evans and Cynthis Evans is DENIED. All
remaining claims asserted by Counter-Plaintiff shall proceed to trial.

9
The parties later determined that it would be a more efficient use of resources

for the trial court to make its interlocutory order final and appealable. The trial

court’s Final Judgment, like the interlocutory order, denied both parties’ requests for

a permanent injunction, declaratory relief, and attorneys’ fees. It also taxed court

costs against the party incurring them, and stated “[t]his is a Final Judgment

disposing of all issues and all parties, all prior interlocutory orders of the Court in

this cause are hereby made final, the temporary injunction entered in this matter is

dissolved, and this judgment is appealable.”

Thereafter, the Evans parties moved for a new trial and requested Findings of

Fact and Conclusions of Law, both of which the trial court denied. In denying this

Request for Findings of Fact and Conclusions of Law, the trial court stated

The central issues in this case were decided by interlocutory summary
judgment. The parties, by motion to enter an agreed final judgment,
effectively non-suited remaining claims for atty fees under Chapter 37.
Findings of Fact are not proper in a case decided by summary judgment.
Court declines to make findings.

When the Evans parties filed their Notice of Past-Due Findings of Fact and

Conclusions of Law, the trial court again denied them, stating “Court will not make

factual findings when judgment is based on summary judgment. Findings are

unnecessary and are contrary to summary judgment practice.”

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ANALYSIS

Issue One: The Motion for New Trial

The Evans parties’ Motion for New Trial repeats their previous allegations

about (1) the deed restrictions prohibiting mobile homes on certain lots; and (2) the

devaluation of their own homes. The Evans parties support the Motion for New Trial

with Cynthia Evans’s affidavit, which states:

I am Cynthia Evans and I am of majority age and capable of making
this sworn affidavit. I have personal knowledge of the facts contained
in the Motion for New Trial to which this verification is attached. The
facts and allegations in that petition are, to the best of my knowledge,
true and correct.

In their initial issue on appeal, Evans posits that the trial court erred in failing

to conduct an evidentiary hearing on the Motion for New Trial. Evans does not,

however, set forth in either the Motion for New Trial or appeal what evidence and

arguments the trial court would have heard had it conducted the requested hearing.

We review a trial court’s decision on a motion for new trial for abuse of

discretion. B. Gregg Price, P.C. v. Series 1 - Virage Master LP, 661 S.W.3d 419,

423 (Tex. 2023) (citation omitted); Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d

922, 926 (Tex. 2009) (citation omitted); Vargas v. Applied Mach. Corp., No. 09-15-

00049-CV, 2016 Tex. App. LEXIS 1151, at *10 (Tex. App.—Beaumont Feb. 4,

2016, no pet.) (mem. op.). “A trial court abuses its discretion when it acts in an

arbitrary or unreasonable manner, or if it acts without reference to any guiding rules

11
or principles.” Vargas, 2016 Tex. App. LEXIS 1151, at *10 (citing Downer v.

Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985)).

In evaluating Evans’ complaint that the trial court did not hold a hearing on

their Motion for New Trial, we note that Evans has cited no authority requiring a

trial court to hold an oral hearing on such a motion, and we have found none. See

Broussard v. Vicknair, No. 09-21-00391-CV, 2023 Tex. App. LEXIS 9371, at **63–

65 (Tex. App.—Beaumont Dec. 14, 2023, no pet.) (mem. op.) (affirming a similar

issue for failure to cite applicable authority); Tex. R. App. P. 38.1(i).

The case authority Evans cites is inapposite to the argument they present in

that the cited authority addresses the requirement of due process of law in the context

of a trial on the merits of a claim. However, Evans chose to resolve their case by

summary judgment and not by trial. Based on this record, we hold that Evans has

not shown that they were entitled to an oral hearing on their motion for new trial.

See Broussard, 2023 Tex. App. LEXIS 9371, at **63–65. Accordingly, we conclude

the trial court did not abuse its discretion in denying an oral hearing on Evans’

Motion for New Trial. We overrule their first issue.

Issue Two: The Summary Judgment

Evans next argues that the trial court should not have granted Livingston’s

Traditional Motion for Summary Judgment.

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We review both summary judgment orders and a trial court’s construction of

a restrictive covenant de novo. Provident Life & Accident Ins. Co. v. Knott, 128

S.W.3d 211, 215 (Tex. 2003) (summary judgment); Ullrich v. Meijer, No. 09-21-

00090-CV, 2022 Tex. App. LEXIS 8805, at *11 (Tex. App.—Beaumont Dec. 1,

2022, no pet.) (mem. op.) (restrictive covenant). When, as here, the trial court’s order

does not specify the basis of its decision, we must affirm the judgment if any of the

movant’s theories is meritorious. Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473

(Tex. 1995).

To prevail on a traditional motion for summary judgment, a movant must

establish that no genuine issue of material fact exists so that the movant is entitled

to judgment as a matter of law. See Tex. R. Civ. P. 166a(c); Mann Frankfort Stein

& Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009); see also Sw.

Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002). Summary judgment is

appropriate if the movant conclusively negates at least one essential element of the

plaintiff’s claim. KCM Fin. LLC v. Bradshaw, 457 S.W.3d 70, 79 (Tex. 2015). Only

when the movant meets its initial burden, does the burden shift to the nonmovant to

present evidence raising a genuine issue of material fact. See Energen Res. Corp. v.

Wallace, 642 S.W.3d 502, 514 (Tex. 2022) (citations omitted); Lujan v. Navistar,

Inc., 555 S.W.3d 79, 84 (Tex. 2018). “When reviewing a summary judgment, we

take as true all evidence favorable to the nonmovant, and we indulge every

13
reasonable inference and resolve any doubts in the nonmovant’s favor.” Valence

Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005) (citations omitted). We

will therefore consider whether any grounds asserted by Livingston support the

summary judgment.

Both case law and the Texas Property Code govern the interpretation of deed

restrictions. See Tex. Prop. Code Ann. § 202.003(a); Tarr v. Timberwood Park

Owners Ass’n, 556 S.W.3d 274, 283, 288-89 (Tex. 2018); Wilmoth v. Wilcox, 734

S.W.2d 656, 657–58 (Tex. 1987). The cited section of the Property Code states that

“[a] restrictive covenant shall be liberally construed to give effect to its purposes and

intent[,]” while case law addressing restrictive covenants indicates that courts do not

favor restrictions on the free use of one’s own land, and that an ambiguity in a deed

restriction will be strictly construed against the party seeking to enforce it. See Tex.

Prop. Code Ann. § 202.003(a); Tarr, 556 S.W.3d at 279–83. Although we seek to

implement the drafters’ intent as reflected by the language they chose when writing

the restrictive covenant, we may not enlarge, extend, stretch or change the meaning

of those words in construing the covenant. Tarr, 556 S.W.3d at 280.

On appeal, Evans contends that summary judgment was improper because

Livingston’s summary judgment evidence

[did] not comply with the requirements of T.R.C.P. Rule 166(a) [sic]
the summary judgment rule, and particularly to Section (e) [sic] which
provides as follows (referring to the required form of affidavits) that
such affidavit . . . shall set forth such facts as would be admissible in
14
evidence, and shall show affirmatively that the affiant is competent to
testify to the matters stated therein.[] Appellate courts have long held
that hearsay will not support a summary judgment. [] Youngstown Sheet
& Tube Co. v. Penn, 363 S.W.2d 230 (Tex. [] 1962).

Evans then reiterates the argument against mobile homes on lot 107 but does not

elaborate on their contention that Livingston’s summary judgment evidence was

inadequate. In their brief, Evans cites George v. Cypress Springs Prop. Owners

Ass’n, 668 S.W.3d 877 (Tex. App.—El Paso 2023, no pet.), to support the

proposition that manufactured or mobile homes were expressly prohibited by the

deed restrictions. However, the George case is distinguishable from the matter

before us on this appeal. The deed restrictions applying to the Livingstons are

different from those in the George case which specifically defined mobile or

manufactured homes and applied to all homes in the subdivision: “[t]he term

‘dwelling’ does not include double wide manufactured homes, or single wide mobile

homes, and said homes are not permitted within the Subdivision.” Id. at 881.

Here, in contrast, the deed restrictions applying to David and Miranda

Livingston required only that homes be “built out of brick, stone, or some other type

of masonry or painted or stained redwood, cedar, finished lumber, cypress, or treated

pine logs.” The Livingston’s expert witness, Ken Manfredi, testified by affidavit that

David and Miranda Livingston’s home was compliant with the deed restrictions:

“[A]fter a thorough evaluation of the Home, I determined that the Home is

approximately 2,000 square feet; is built on a concrete pad (and placed on a pier and
15
beam); has a composite roof; and Hardie board siding. The foregoing elements

comply with the building requirements established by paragraph 15 of the Deed

Restrictions.” This expert testimony was unambiguous and was not rebutted by the

Evans’ in response to the motion for summary judgment. The undisputed summary

judgment evidence supports the trial court’s determination that the structure on

David and Miranda Livingston’s property complied with the unambiguous deed

restrictions. Tarr, 556 S.W.3d at 289 (Whether a covenant is ambiguous must be

determined based upon the plain language set forth in the covenant as seen in light

of the circumstances present when it was drafted.).

In addition, the Evans parties alleged Livingston’s evidence contained hearsay

and conclusory declarations. However, in their briefs to this Court, Adrian and

Cynthia have not supported those allegations with case-specific briefing and

applicable authority. Evans consequently have waived their right to complain about

the summary judgment evidence presented by Livingston. See Price v. Gardner, No.

09-24-00193-CV, 2025 Tex. App. LEXIS 181, at *3 (Tex. App.—Beaumont Jan.

16, 2025, no pet.) (mem. op.) (citations omitted). We overrule their second issue.

Issue Three: The Requested Findings of Fact and Conclusions of Law

In issue three, Evans argues that the trial court erred in failing to make

Findings of Fact and Conclusions of Law, despite their timely request.

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Since a summary judgment indicates that there are no genuine issues of

material fact, and since the trial court entered a summary judgment in this matter,

findings of fact were not appropriate. See Linwood v. NCNB Tex., 885 S.W.2d 102,

103 (Tex. 1994) (“findings of fact and conclusions of law have no place in a

summary judgment proceeding[]”); see also Albers v. State Farm Mut. Auto. Ins.

Co., No. 09-23-00230-CV, 2024 Tex. App. LEXIS 5092, at **9–10 (Tex. App.—

Beaumont July 18, 2024, no pet.) (mem. op.) (same). The trial court recognized this

principle in its handwritten notations on Evans’ Requests for Findings of Fact and

Conclusions of Law and on Evans’ Notice of Past Due Findings of Fact and

Conclusions of Law, set forth above.

Since the trial court was not required to make findings of fact or conclusions

of law in this matter, we conclude the trial court did not err in failing to do so. We

overrule Evans’ third issue.

Issue Four: Finality of the Judgment

In this issue, Evans appears to address the finality of the trial court’s judgment.

Since “the finality of a judgment raises the issue of jurisdiction, it is a legal question

we review de novo.” Redwine v. Peckinpaugh, 535 S.W.3d 44, 48 (Tex. App.—

Tyler 2017, no pet.). A judgment is final if it disposes of all claims and parties or if

it includes “unequivocal finality language that expressly disposes of all claims and

parties.” See Sealy Emergency Room, L.L.C. v. Free Standing Emergency Room

17
Managers of Am., L.L.C., 685 S.W.3d 816, 820 (Tex. 2024) (citing Lehmann v. Har-

Con Corp., 39 S.W.3d 191, 192–93, 200 (Tex. 2001)).

The trial court’s Final Judgment, expressly states:

IT IS THEREFORE ORDERED, ADJUDGED, and DECREED
that Plaintiffs’ request for a permanent injunction and declaratory relief
is hereby DENIED.

IT IS FURTHER ORDERED, ADJUDGED, and DECREED
that Counter-Defendants’ request for permanent injunction and
declaratory relief is hereby DENIED.

IT IS FURTHER ORDERED, ADJUDGED, and DECREED
that Plaintiffs/Counter-Defendants’ claim for attorneys’ fees is hereby
DENIED.

IT IS FURTHER ORDERED, ADJUDGED, and DECREED
that Defendants/Counter-Plaintiffs’ claim for attorneys’ fees is hereby
DENIED.

IT IS FURTHER ORDERED, ADJUDGED, and DECREED
that all costs of court are hereby taxed against the party incurring the
same.

This is a Final Judgment disposing of all issues and all parties,
all prior interlocutory orders of the Court in this cause are hereby made
final, the temporary injunction entered in this matter is dissolved, and
this judgment is appealable.

Lehmann holds that a judgment is final if it states, “with unmistakable clarity that it

is a final judgment as to all claims and all parties.” 39 S.W.3d at 192–93. Under the

Lehmann standard, the trial court’s judgment disposing of “all issues and all parties,”

and stating that the judgment is final and appealable sufficed to render the judgment

final. See id. at 192–93. Since the trial court’s judgment contained clear and
18
unequivocal language of finality and addressed not only the parties’ claims but the

counterclaims and attorneys’ fees, we conclude it is a final judgment. See Lehmann,

39 S.W.3d at 192-93. We overrule Evans’ fourth issue.

Counterpoint One: The Attorney’s Fees

The Uniform Declaratory Judgments Act (“UDJA”) states that “[i]n any

proceeding under this chapter, the court may award costs and reasonable and

necessary attorney’s fees as are equitable and just.” Tex. Civ. Prac. & Rem. Code

Ann. §§ 37.002(a), 37.009. When Livingston counter-claimed against Evans, they

sought declaratory relief and attorneys’ fees pursuant to the UDJA. After the trial

court declined to award Livingston attorneys’ fees, they appealed that denial,

arguing the trial court abused its discretion in denying those fees because it was

“equitable and just” to award them due to the disparity in financial resources between

Livingston and the multiple property owners who joined Evans’ suit.

We review a denial of attorney’s fees under the UDJA for an abuse of

discretion. See Forest Hills Improvement Ass’n v. Flaim, No. 09-18-00199-CV,

2019 Tex. App. LEXIS 8478, at *4 (Tex. App.—Beaumont Sep. 19, 2019, no pet.)

(mem. op.). A trial court abuses its discretion if it acts arbitrarily or without regard

to guiding rules or principles. See id. at **4-5. Under the UDJA, a trial court has

broad discretion in deciding whether to award attorney’s fees. See Bocquet v.

Herring, 972 S.W.2d 19, 20 (Tex. 1998) (citing Tex. Civ. Prac. & Rem. Code Ann.

19
§ 37.009); Anglo-Dutch Petroleum Int’l, Inc. v. Greenberg Peden, P.C., 522 S.W.3d

471, 494 (Tex. App.—Houston [14th Dist.] 2016, pet. denied). A court may decide

that fees should not be awarded if such an award would not be equitable and just in

light of all the circumstances. See Flaim, 2019 Tex. App. LEXIS 8478, at *5. The

determination of whether an award of attorney’s fees would be equitable and just is

not susceptible of direct proof but instead is a matter of fairness in light of all the

circumstances. See Anglo-Dutch Petroleum Int’l, Inc., 522 S.W.3d at 494. Even if

the evidence is uncontroverted that the attorney’s fees incurred are reasonable and

necessary, a court may decide it is not equitable or just to award them. See Flaim,

2019 Tex. App. LEXIS 8478, at *5 (citations omitted). Additionally, since an award

of attorney’s fees does not depend on a finding that a party has substantially

prevailed, the trial court is not required to award attorney’s fees to a prevailing party

in a declaratory judgment. See Anglo-Dutch Petroleum Int’l, Inc., 522 S.W.3d at

494.

Livingston bore the burden of establishing that the trial court abused its

discretion in denying an award of attorney’s fees. See Sanchez v. AmeriCredit Fin.

Servs., Inc., 308 S.W.3d 521, 526 (Tex. App.—Dallas 2010, no pet.) (citation

omitted). Livingston cites the financial disparity between themselves and the

multiple plaintiffs as the ground for awarding the fees they incurred in defending the

case. Livingston has not, however, cited to applicable case authority approving a fee

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award on this basis. See Tex. R. App. P. 38.1(i). Livingston also has not explained

what applicable guiding rules or principles the trial court allegedly disregarded but

has instead stated only that it would be just and equitable to award fees. While we

agree that the UDJA permits a trial court to award attorney’s fees, it does not require

the court to do so. See Tex. Civ. Prac. & Rem. Code Ann. § 37.009; Bocquet, 972

S.W.2d at 20 (contrasting the discretion in the UDJA with statutes requiring a fee

award).

In Guajardo v. Hitt, as in this case, the trial court denied recovery, including

attorney’s fees, to all parties. 562 S.W.3d 768, 781-82 (Tex. App.—Houston [14th

Dist.] 2018, pet. denied). The Guajardo appellees, the prevailing parties in the trial

court, argued on appeal that the trial court abused its discretion in denying their fee

request, claiming that ‘“there was absolutely no basis to deny the statutorily-

authorized attorney’s fees for Cross-Appellants’ successful defense of the

declaratory judgment claim.”’ See id. In affirming the trial court’s denial, our sister

court explained that a fee award in a declaratory judgment matter was discretionary

with the trial court. See id. at 782–83 (citations omitted). The court observed that “a

trial court, in the exercise of its discretion, ‘may award attorney’s fees to the

prevailing party, may decline to award attorney’s fees to either party, or may award

attorney’s fees to the nonprevailing party, regardless of which party sought

declaratory relief.”’ Id. at 783 (citation omitted). Applying this standard to the

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instant case indicates that absent a showing that the trial court abused its discretion,

its decision should stand. See id.

Since the trial court was not required to award attorneys’ fees, and since

Livingston did not meet their burden to show that the trial court abused its discretion

by denying fees, we overrule Livingston’s initial counterpoint.

Counterpoint Two: The Evans’ Prohibited Use

Livingston further contends that the trial court erred in failing to determine

that Adrian and Cynthia Evans violated the deed restrictions by operating a business

and conducting swimming lessons on their property and that Livingston is entitled

to declaratory and injunctive relief for this reason.

We review a trial court’s denial of a request for injunctive relief for an abuse

of discretion, meaning we ask whether the trial court acted in an unreasonable or

arbitrary manner or misapplied the law to the facts. See Indian Beach Prop. Owners’

Ass’n v. Linden, 222 S.W.3d 682, 690–91. (Tex. App.—Houston [1st Dist.] 2007,

no pet.). A trial court does not abuse its discretion when its decision is based on

conflicting evidence and some evidence reasonably supports the trial court’s

decision. Id. at 691 (citation omitted). The party seeking an injunction has the burden

to show a clear equity demands the injunction. Id. Injunctive relief is appropriate

upon a showing of (1) the existence of a wrongful act; (2) the existence of imminent

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harm; (3) the existence of irreparable injury; and (4) the absence of an adequate

remedy at law. Id. at 690-91.

Assuming without deciding that conducting swimming lessons violates the

deed restriction against commercial use of the property, Livingston did not show that

Adrian and Cynthia Evans were doing so. Livingston’s summary judgment evidence

does not establish that Adrian and Cynthia Evans were conducting swimming

lessons and operating Jenny Pye ISR on their property. Livingston instead showed,

through Evans’ responses to Requests for Admissions, that a designated photograph

depicted Adrian and Cynthia Evans’ property. Although the photograph is identified

as being “attached hereto as Exhibit A,” no photographs are attached to Evans’

responses to Livingston’s Requests for Admissions or Evans’ responses to them. We

therefore cannot determine what photograph was attached as Exhibit A and

admittedly reflected Adrian and Cynthia Evans’ property. On this record, we cannot

agree that Livingston proved Adrian and Cynthia Evans were using their property

for a business purpose. See Jim Arnold Corp. v. Bishop, 928 S.W.2d 761, 770 (Tex.

App.—Beaumont 1996, no pet.) (referencing the effect of the appellate court having

nothing to review).

Given the lack of evidence that Adrian and Cynthia Evans were committing a

wrongful act by operating a business in violation of the deed restrictions, Livingston

was not entitled to injunctive relief. See Linden, 222 S.W.3d at 690–91 (injunctive

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relief requires a wrongful act). The trial court therefore correctly denied Livingston

the injunctive relief sought. We overrule Livingston’s second counterpoint.

CONCLUSION

Having overruled all of Evans’ and Livingston’s issues on appeal, we affirm

the trial court’s judgment.

AFFIRMED.

JAY WRIGHT
Justice

Submitted on November 21, 2024
Opinion Delivered May1, 2025

Before Johnson, Wright and Chambers, JJ.

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