Jacquelyn K. Morgan v. Joseph R. Stan, Heather M. Stan, and Round 2 Offroad, LLC

NUMBER 13-24-00085-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

JACQUELYN K. MORGAN, Appellant,

v.

JOSEPH R. STAN,
HEATHER M. STAN,
AND ROUND 2 OFFROAD, LLC, Appellees.

ON APPEAL FROM THE 368TH DISTRICT COURT
OF WILLIAMSON COUNTY, TEXAS

MEMORANDUM OPINION

Before Justices Silva, Cron, and Fonseca
Memorandum Opinion by Justice Silva

Appellant Jacquelyn K. Morgan appeals the trial court’s judgment in favor of
appellees Joseph R. Stan, Heather M. Stan, and Round 2 Offroad, LLC (Round 2). 1 By

twelve issues, Morgan contends that the trial court erred by denying her requests for

injunctive relief, attorney’s fees, and costs. Because resolution of Morgan’s eighth issue

is dispositive, we affirm.

I. BACKGROUND

A. Live Pleading

On December 17, 2021, Morgan filed her original petition against appellees and

1612 Shenandoah Condominium Association seeking declaratory relief, injunctive relief,

and attorney’s fees. 2 In her third amended petition filed on May 30, 2023, Morgan

pleaded that appellees violated the restrictive covenants governing Shenandoah, Section

Two, a residential subdivision in Cedar Park, Texas. Morgan asserted that the subdivision

is subject to the following restrictions:

1. None of said lots shall be used except for residential purposes. Only
one single family dwelling may be erected not to exceed two (2)
stories in height and an attached or detached enclosed garage may
be built provided it is built of materials similar to the main residence.
Outbuildings for the purpose of storage and a horse may be erected
as long as they also are constructed of materials similar to the main
dwelling. All such outbuildings must be properly maintained and kept
painted. All dwellings, garages and outbuildings must be constructed
of new materials.

2. No structure of a temporary character, house trailer, tent, shack,
garage, barn or other outbuildings shall be used on any of said lots
at any time as a residence or for business either temporarily or

1 This case is before the Court on transfer from the Third Court of Appeals pursuant to a docket-

equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE §§ 22.220(a) (delineating
the jurisdiction of appellate courts), 73.001 (granting the supreme court the authority to transfer cases from
one court of appeals to another at any time that there is “good cause” for the transfer). We are bound by
the precedent of the transferring court to the extent that it differs from our own. See TEX. R. APP. P. 41.3.

2 Morgan also sued 1612 Shenandoah Condominium Association. On July 10, 2023, the trial court

dismissed the claims against this entity with prejudice, and it is not a party to this appeal.

2
permanently.

3. No dwelling, exclusive of open porches, garages, carports and
patios, shall be permitted on any of said lots at a cost of less than
$10,000.00 based upon cost levels prevailing on the date these
covenants are recorded, it being the intention and purpose of the
covenants to assure that all dwellings shall be of a quality of
workmanship and materials substantially the same or better than that
which can be produced on the date these covenants are recorded at
the minimum cost stated herein for the minimum permitted dwelling
size. The ground floor area of the main structure, exclusive of one-
story open porches and garages, shall be not less than 900 square
feet for a one-story dwelling. The ground floor area of the main
structure, exclusive of one-story open porches and garages, shall be
not less than 800 square feet for a dwelling of more than one story.
Any dwelling erected on any lot shall have outside walls of at least
twenty-five percent (25%) masonry.

4. No dwelling shall be located on any of said lots nearer to the front
line or nearer to the side street line than the minimum building set-
back lines shown on the recorded plat. In any event, no dwelling shall
be located on any of said lots nearer than twenty-five feet (25′) to the
front lot line, or nearer than ten feet (10′) to any side street line or five
feet (5′) from side lot lines of all inside lots. No outbuilding shall be
erected where the front will extend in front of the rear of the dwelling
and not less than ten feet (10′) from side lines or ten feet (10′) from
rear lot lines. For the purposes of this covenant[,] eaves, steps and
open porches shall not be considered as a part of a dwelling,
provided, however, that this shall not be construed to permit any
portion of a building on a lot to encroach upon any other lot.

5. Easements for the installation and maintenance of utilities and
drainage facilities are reserved as recorded in the Records of
Williamson County, Texas. Within these easements, with the
exception of the side lot line easements, no structure, planting or
other materials shall be constructed, placed, altered, or permitted to
remain which damages or interferes with the installation, operation,
or maintenance of such facilities or impairs the free movement of any
public utility company in, on or across said easements.

6. No noxious or offensive activity shall be carried on upon any of said
lots, nor shall anything be done thereon which may be or become an
annoyance or nuisance to the [subdivision].

7. No part of any of said lots shall ever be used for a business or

3
commercial purpose or for carrying on any trade or profession,
whether temporary or permanent.

8. No oil drilling, oil development operations, oil refining, quarrying, or
mining operations of any kind shall be permitted upon or in any of
said lots, nor shall oil wells, tanks, tunnels, mining excavations, or
shafts be permitted upon or in any of them. No derrick or other
structure designed for use in boring for oil or natural gas shall be
erected, maintained or permitted upon any of said lots.

9. No lot may be resubdivided unless approved in writing by the
architectural control committee [(ACC)] hereinafter created. No
roadway easement shall ever be granted across any lot, unless
approved in writing by the [ACC].

10. None of said lots shall be used or maintained as a dumping ground
for rubbish. Trash, garbage, or other waste shall not be kept except
in sanitary containers. All incinerators or other equipment for the
storage or disposal of such materials shall be kept in a clean and
sanitary condition.

11. No building shall be erected, placed or altered on any lot until the
construction plans and specifications, and a plan showing the
location of the structure on the lot, have been approved by the [ACC]
as to quality of workmanship and materials, harmony of external
design with existing structures, and as to location with respect to
topography and finish grade elevation. The [ACC] is composed of
Wiley D. Pringle, Howard D. Pringle and Scott Moore. A majority of
the [ACC] may designate a representative of the [ACC] to act for it.
In the event of death or resignation of any member of the committee,
the remaining members shall have full authority to designate a
successor. Neither the members of the [ACC], nor its designated
representative, shall be entitled to any compensation for services
performed pursuant to this covenant. At any time the then record
owners of a majority of the lots shall have the power through a duly
recorded written instrument to change the membership of the [ACC]
or to withdraw from the [ACC] or restore to it any of its powers and
duties.

12. Fences may be erected to enclose the rear yards of dwellings not to
exceed six feet (6′) in height and not to extend farther than the front
of the building and must be erected with new materials. Front yard
fences may be built provided they are a chain link variety and do not
exceed four feet (4′) in height.

4
13. No livestock or poultry of any kind shall be raised, bred, or kept on
any tract, other than dogs, cats, or other household pets not raised,
bred, or kept primarily for commercial purposes; however, one horse
may be kept on a tract if it equals one-half (1/2) acre or more, and is
properly housed and fenced at the rear of said tract and not raised,
bred or used for commercial purposes. Any outbuilding and lot area
used for the purpose of housing horses must be kept in a sanitary
condition.

14. No signs of any kind shall be displayed for public view on any lot
except reasonable signs advertising the property for sale or rent or
advertising the building, architect or supplies during construction,
without the prior written consent of the [ACC] hereinabove created.

15. The [ACC]’s approval or disapproval, as required in these covenants,
shall be in writing. In the event the [ACC], or its designated
representative, fails to approve or disapprove within thirty (30) days
after plans and specifications have been submitted to it, or in any
event, if no suit to enjoin the construction has been commenced prior
to the completion thereof, approval will not be required and the
related covenants shall be deemed to have been fully complied with.

16. It is further provided that, in order to prevent undue hardship upon
any owner or owners of any of said lot or lots, variance from the
restrictions above set out as to size and cost of the structure, as to
the percentage of masonry construction, and as to minor changes in
location of the structure upon the respective lot or lots, may be
granted by a majority of the [ACC] above designated, said approval
of variances to be by instrument in writing to be duly acknowledged
and to be recorded in the Deed Records of Williamson County, Texas
if and when such approval of variances shall ever be granted.

17. These covenants are to run with the land and shall be binding on all
parties and all persons claiming under them for a period of thirty (30)
years from the date these covenants are recorded, after which time
said covenants shall be automatically extended for successive
periods of ten (10) years unless an instrument signed by a majority
of the then owners of the lots in Shenandoah, Section Two
[subdivision] (2), has been recorded, agreeing to change said
covenants, conditions and restrictions, in whole or in part.

18. Enforcement shall be by proceedings at law or in equity against any
person or persons violating or attempting to violate any covenant
either to restrain violation or to recover damages.

5
19. Invalidation of any one of these covenants by judgment or a court
order shall in nowise affect any of the other provisions, which shall
remain in full force and effect.

These restrictions were recorded in the Williamson County records in 1971, and signed

by Wiley, Howard, and Moore. Morgan alleged in her live pleading that the Stans owned

1612 Shenandoah Drive and she owned 1616 Shenandoah Drive. Morgan also asserted

that both lots are located in the subdivision and are governed by the restrictions.

According to Morgan, Joseph “acted as a real estate broker in a real estate transaction”

and his brother-in-law, Fernando Mendoza, purchased the lot from the Stans in 2016.

Thereafter, Joseph leased 1612 Shenandoah Drive from Mendoza.

Morgan also pleaded that a building permit was issued by the Cedar Park Building

Inspection Division on April 5, 2018. The permit authorized the construction of a metal

outbuilding garage at 1612 Shenandoah Drive. In October 2019, Joseph leased a 5,000-

square-foot portion of 1612 Shenandoah Drive to John Stefka, owner of Round 2. 3

Morgan claimed that “Round 2 began business operations immediately and after a few

days or weeks placed a sign . . . on and near the front of the metal outbuilding.” She also

alleged this was around the time where she was “first aware that 1612 Shenandoah

[Drive] was being used for business purposes by anyone, but specifically by Round 2.”

According to Morgan, in December 2020, Mendoza and the Stans declared their

ownership interests in 1612 Shenandoah Drive as a condominium association comprised

of two units. In January 2020, Mendoza conveyed a “one-half undivided interest in 1612

Shenandoah [Drive]” to the Stans by a general warranty deed. On January 20, 2021, both

3 According to the record, Round 2 is an offroad vehicle customization business.

6
of the 1612 Shenandoah Drive units were conveyed to the Stans by Owelty of Partition

Deeds.

In her live pleading, Morgan asserted that the Stans violated the restrictions in the

following ways:

a. Erecting an outbuilding where the front extends in front of the rear of
the dwelling[;]

b. Erecting an outbuilding closer than ten feet to the side property line[;]

c. Construction of an outbuilding using impermissible construction
materials[;]

d. Non-residential use[;]

e. Construction of an outbuilding for an impermissible purpose[;]

f. Use of a part of this lot for business purposes[;]

g. Use of a building on this lot for business purposes[;]

h. Impermissible [f]encing[;]

i. Impermissible [s]ignage[; and]

j. Noxious or [o]ffensive [a]ctivity or [a]cts. . . .

Morgan requested that trial court declare that the restrictions were valid and that

appellees were required to bring their property into compliance with said restrictions. She

further requested from the trial court to issue an injunction against appellees as well as

an award of attorney’s fees.

On March 31, 2023, appellees filed a joint amended answer asserting that

Morgan’s claims were barred by several defenses including “the ambiguity of several of

the restrictions sought to be enforced,” acquiescence and abandonment, waiver,

estoppel, laches, limitations, “changed conditions in the subject area,” “failure to mitigate

7
damages,” and unclean hands. Appellees requested that the trial court deny Morgan’s

request for injunctive relief, dismiss her claims, or in the alternative, render judgment so

that she take nothing. They also requested an award of court costs and attorney’s fees.

B. Bench Trial

Thomas Griffiths testified that he had lived in the subdivision for fifteen years and

was aware of the restrictions. He further testified that the restrictions impacted his

decision to purchase in that area. Griffiths claimed that there were no commercial

activities when he first bought his home, but there have been since then. He stated that

he was a member of the ACC at some point but that enforcement of the restrictions is not

one of its functions. Griffiths further stated that he was aware of concrete being poured

on the Stans’ lot, but he did not file a lawsuit nor try to find any surviving member of the

ACC. He was also aware of a boat business, a volunteer fire department building, a

commercial photography studio, and an assisted living facility operating in the subdivision.

Griffiths believed that the boat business had been in the subdivision since he moved there

fifteen years ago, but he clarified by stating that he only knew that they had boats.

Griffiths explained that he had two metal outbuildings on his lot and he did not get

the ACC’s approval for said outbuildings. When asked why he did not seek the ACC’s

approval, Griffiths responded:

Because, after checking with my neighbors to see if there were any
objections to my plans, everybody said fine with them; and that . . . was my
main concern. I also in the neighborhood d[id] see quite a number of
outbuildings and said, “I’ll go ahead and build my outbuildings, too.”

He further explained that none of the businesses that he had seen in the subdivision

posed any inconvenience or annoyance to him. Griffiths acknowledged that he stated at

a prior hearing that “No one has been enforcing the deed restrictions.”
8
Martin Gonzalez testified that he was employed by Wiley and Howard for

approximately thirteen years as their general manager and comptroller for Pringle Real

Estate, Inc. He further testified that Wiley and Howard put him on their ACC for the

subdivisions they developed. Gonzalez explained that the ACC’s purpose was to discuss

instances where “somebody needed a variance or when somebody was going to build a

house . . . out of the ordinary” in the subdivision. The following exchange occurred during

his testimony:

[Appellees’ counsel]: Did you have any involvement with the
Shenandoah ACC after you left the company in
1980?

[Gonzalez]: No.

[Appellees’ counsel]: Do you know if the Pringles ever appointed
anybody else to be on the ACC with them after
you left?

[Gonzalez]: No.

....

[Appellees’ counsel]: Okay. Do you recall if any people came to the
ACC to ask for approval while you were on the
ACC?

[Gonzalez]: I think maybe Mr. Sosa that lived in the back part
might have; but other than that, I don’t
remember any.

[Appellees’ counsel]: Okay and I think you’ve said this—I just want to
have you repeat it—that the ACC didn’t enforce
the deed restrictions, you waited—

[Gonzalez]: No. We were not responsible for enforcing them.
We just . . . tried to get involved before they built
something so that they would build it in
accordance with . . . what was allowed.

9
[Appellees’ counsel]: And do you recall . . . anyone in Shenandoah
coming to the ACC with problems of somebody
violating the deed restrictions?

[Gonzalez]: No.

Anthony David Gattuso Sr. testified that he had lived in the subdivision for forty-

seven years. He further testified that he was aware of “people working there from their

home” when asked whether there were any businesses operating in the subdivision.

Gattuso testified that the businesses included an assisted living facility, an electrician

shop, H&H Marine, known as “the boathouse,” a BMW repair shop, a computer repair

shop, and a photography studio. He mentioned that some of these businesses have

signs. Gattuso estimated that the BMW repair shop had been operating for approximately

four or five years. He testified that in general these businesses did not pose any

annoyance or traffic problems to him. Gattuso further testified that he met Joseph

approximately “when construction ended on [Joseph’s] garage.” According to Gattuso, he

informed Joseph that some of the neighbors were upset with Joseph for putting an

“eyesore in a residential neighborhood.” Regarding Round 2’s business operations,

Gattuso claimed that it was “a nightmare” for the subdivision, that there were many

vehicles parked on the lot, that there was a big trash dumpster in the front of the lot, and

that the business attracts high traffic in the area. However, when asked whether he had

sought to enforce the restrictions, Gattuso responded, “No, I have not.” Gattuso also did

not know if any resident in the subdivision previously took any actions to enforce the

restrictions.

Heather testified regarding numerous businesses and other covenant violations

located within the subdivision. She stated that H&H Marine had “two boats in their front

10
driveway” and an “engine hanging.” She also testified that there was a computer repair

shop, a photography studio, Britton AC and Heating, a BMW repair shop, Tower & Turbine

Technologies, and others. During Heather’s testimony, numerous photographs of the

subdivision were admitted into evidence depicting debris and trash on multiple lots,

seemingly inoperable vehicles parked in the subdivision, heavy machinery such as a mini

lift, metal outbuilding structures similar to her own property, business signage, and fences

that were not of the chain link variety. She explained that the photographs were generally

significant to demonstrate the lack of enforcement of restrictions in the subdivision. When

asked what her perception was about being able to place a business in the subdivision,

she responded, “That we could do it.” She based those perceptions on the subdivision

and stated, “We had driven there . . . for years and [saw] the businesses that were there.”

Heather also testified that there was a lot that had a “string of cars all facing one direction

and then a metal building in the back.” She stated that Joseph approached the owners of

the property and, according to her, the owners informed Joseph that “they did work on

cars for strangers, for people.”

Morgan testified that she has lived at 1616 Shenandoah Drive for over forty-five

years, she was aware of the restrictions, and one of the important reasons that she

purchased the property was because the subdivision was quiet and rural. She explained

that she first met Joseph in March of 2021 during a Zoom call. According to Morgan,

approximately thirty different subdivision residents were present on the call to discuss

“what was going on at 1612 Shenandoah [Drive], because everybody was so upset.” She

testified that there were about 150 lots in the subdivision. Morgan further testified that at

the time of the call, Round 2’s building had already been built. She claimed that ever since

11
the building has been on the lot in 2018, she had to alter her driving route because “it’s

too upsetting and I can’t see.” In this regard, Morgan stated:

I go that way because, A, it’s extremely upsetting for me to have to see this
business—I mean, building that encompasses from the street all the way
back to my property line, the entire side of my house. But, also, because
there’s a big commercial dumpster in the way; there are big, high Jeeps that
are taller than my head, in the way, parked on both sides of the street;
there’s blockage of delivery trucks and 18-wheelers and wreckers and
commercial dumpster trucks and all kinds of things, and I can’t see to make
it safe to go that way, nor can I access through it because the streets are
narrow.

In addition, she testified that she first became aware of the alleged violations related to

either the setback lines or outbuilding placement “after the lawsuit had been filed[.]”

Morgan was aware of the assisted living facility and H&H Marine; however, she

stated that neither of these businesses created traffic problems nor were an annoyance

to the subdivision. She also testified that she was not aware that there was a BMW repair

shop in the subdivision until recently. Morgan stated that she has not encountered a traffic

problem or any negative impact to the subdivision regarding the BMW repair shop. She

also asserted that an inoperable bus as well as a blue tarp on her own property, which

covered a pop-up camping trailer, were no longer in the subdivision. Morgan testified that

she has a son who suffers from attention-deficit-hyperactivity disorder and was being

home schooled. To help facilitate her child’s schooling, her father constructed “a

manufactured building with siding and roofing to match the house.” She further stated that

she spoke to a few residents in the area regarding the placement of the building and that

“[t]hey understood what [she] was trying to do.” Photographic evidence established that

her manufactured building was not situated behind the rear of her home. Morgan

additionally explained that the building on the Stans’ property affected her backyard

12
because the “25-f[oo]t-tall metal building” covered her entire backyard to her left and

obstructed her view from watching the sunrise, among other things. She also testified that

she was unaware there was a photography studio and a volunteer fire department in the

subdivision until she received the discovery.

Morgan disagreed with Heather’s prior testimony regarding the purported lack of

restriction enforcement in the subdivision. She explained that the subdivision “has this

peaceful rural atmosphere” and that Heather’s characterization was unfair. However,

Morgan agreed that there had been previous violations of the restrictions but “none of

which are nuisances or obnoxious or dangerous or offensive.” Morgan further

acknowledged that besides Round 2, there were no other lots that she considered a

business. In general, Morgan asserted that the traffic volume, the activity level, and the

appearance of the other properties were not similar to Round 2’s business.

On cross examination, Morgan testified that over the last forty-five years, she had

discussed violations of the restrictions with her neighbors four times, two of which were

prior to the filing of the current lawsuit. However, she further acknowledged that she had

no documentation or names pertaining to the four complaints from either herself or other

property owners in the subdivision. Morgan testified that the pop-up trailer on her property

had been there for ten years before it was moved. In reference to the manufactured

building on her property, she stated that she did not request authorization from the ACC

to add the building to her property. Morgan agreed that while metal constructions located

on various lots in the subdivision that do not match the home were in violation of the

restrictions, she had no knowledge of any complaints “through the decades that [she had]

lived there.” She also confirmed that there were three business signs located in the

13
subdivision: The Texas Property Manager, the computer repair shop, and the

photography studio.

Morgan further testified that before Round 2 started operating in the subdivision,

she was aware that Joseph had four “cars out front” and a dumpster; however, she waited

two years to file the lawsuit because “it took a little while to gather enough people together

to figure out how we wanted to proceed, [or] whether we wanted to do a group lawsuit.”

Joseph testified that he is married to Heather and owns a lot in the subdivision. He

also testified about his real estate background, the history behind the acquisition of his

property, and the construction of his building. Joseph stated that a business referred to

as “Chevy Mike” does repair work on vehicles. He noted that the outbuilding located on

Mike’s property did not match the corresponding main home. Later, when asked about

the characterization of the subdivision, Joseph stated that, “I looked at the [subdivision],

saw all the buildings up, saw the businesses, and I thought this is a good place to put my

shop.”

Joseph introduced a highlighted map of the lots in the subdivision reflecting over

thirty lots which have been resubdivided based on tax office documentation. Regarding

whether his property had ever been reported for violations, Joseph testified that an

anonymous caller did report a “dividing fence between Units 1 and 2, the house and the

shop,” but other than that one instance there have been no further investigations or

reports related to his property. When asked, “Is this lawsuit the first time you’ve been sued

regarding this property, he replied, “Yes, sir.” Joseph testified that neither himself,

Heather, nor Mendoza had been sued at the time the building on his property was

finished.

14
C. Findings of Fact and Conclusions of Law

On September 14, 2023, after the bench trial concluded, the trial court rendered

judgment in favor of appellees and ordered that Morgan take nothing. The judgment

further stated that “[a]ll relief not expressly granted herein is denied.” On November 7,

2023, the trial court entered its findings of fact and conclusions of law:

FINDINGS OF FACT

1. [Morgan] currently holds record title to Lot 17, Block B, of
Shenandoah, Section Two, a subdivision in Williamson County,
Texas, according to the map or plat thereof recorded in Cabinet B,
Slide 185-188, Plat Records of Williamson County, Texas, which is
referred to locally as 1616 Shenandoah Drive, Cedar Park, Texas
78613.

2. [The Stans] currently hold record title to Units 1 and 2 of the 1612
Shenandoah Condominiums, a two unit condominium project in
Williamson County, Texas, together with the associated limited and
common elements as defined in that Declaration recorded under
Document No. 2020164334, Official Public Records of Williamson
County, Texas. The 1612 Shenandoah Condominiums were created
on Lot 1, Block B, of the Shenandoah, Section Two [s]ubdivision.

3. The lots in Shenandoah, Section Two [subdivision] are subject to a
set of 1971 deed restrictions which are recorded in Volume 539,
Page 471, Deed Records of Williamson County, Texas. These
restrictions provide for an [ACC] but no homeowners association.
Prior to some activity related to this lawsuit, the [ACC] had been
inactive since the late 1970s.

4. The Stans purchased their property because of the lack of a
homeowners association and the lack of enforcement of the
restrictions.

5. In 2018, the Stans built a large garage structure on a portion of their
property which is now Unit 2 of the 1612 Shenandoah
Condominiums. No lawsuit was filed to enjoin the construction of this
garage prior to its completion.

6. In 2019, the Stans leased a portion of their property to [Stefka],
owner of [Round 2]. [Round 2] runs an automotive business on the

15
portion of the Stans’ property that [Stefka] has leased.

7. There are numerous extensive and material violations of the
restrictions throughout the Shenandoah, Section Two subdivision.

8. Owners in the subdivision were aware of the prior violations but failed
to take any action to enforce the restrictions.

9. Prior to the filing of this lawsuit, there have been no enforcement
actions against any of the lots in Shenandoah, Section Two
[subdivision].

10. Several of the existing violations involve activities similar in nature to
those of [Round 2].

11. Prior to the filing of this lawsuit, [Morgan] failed to take any action to
enforce the restrictions against [appellees].

12. It would be reasonable for a person seeing the number, nature and
severity of violations within the subdivision to conclude that the
restrictions had been abandoned and enforcement waived.

CONCLUSIONS OF LAW

1. [Morgan]’s claims are barred by the express terms of the restrictions.

2. [Morgan]’s claims are barred by abandonment and waiver.

3. [Morgan]’s claims are barred by laches.

4. [Morgan]’s claims are barred by the doctrine of “unclean hands.”

This appeal followed.

II. STANDARD OF REVIEW

Morgan raises numerous issues regarding aspects of the trial court’s judgment as

well as its findings of facts and conclusions of law. 4

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

4 We also note that Morgan requested declaratory relief in her live pleading; however, she does

not raise any issues related to this request. Therefore, we do not address any portion of the trial court’s
judgment regarding declaratory relief.
16
discretion. Operation Rescue–Nat’l v. Planned Parenthood, 975 S.W.2d 546, 560 (Tex.

1998). “A trial court abuses its discretion when a ‘decision is arbitrary, unreasonable, and

without reference to guiding principles.’” In re A.L.M.-F., 593 S.W.3d 271, 282 (Tex. 2019)

(quoting Mercedes-Benz Credit Corp. v. Rhyne, 925 S.W.2d 664, 666 (Tex. 1996)). To

determine the appropriateness of granting a permanent injunction, “the court will consider

the injury which may result to the defendant and the public by granting the injunction as

well as the injury to be sustained by the complainant if the writ be denied.” Huynh v.

Blanchard, 694 S.W.3d 648, 688 (Tex. 2024) (quoting Storey v. Cent. Hide & Rendering

Co., 226 S.W.2d 615, 618–19 (Tex. 1950)). However, a trial court has no discretion to

issue a permanent injunction absent a pleaded and proven cause of action. See Etan

Indus., Inc. v. Lehmann, 359 S.W.3d 620, 625 n.2 (Tex. 2011) (per curiam). A trial court’s

“judgment must arise out of a balancing of equities or of relative hardships” in a restrictive

covenant case. Cowling v. Colligan, 312 S.W.2d 943, 946 (Tex. 1958). “In determining

whether it would be inequitable to enforce a restrictive covenant against a particular lot

owner, we must weigh the equities of the owner in violation of the covenant against the

equities favoring other lot owners who acquired their property on the strength of the

restriction.” Gigowski v. Russell, 718 S.W.2d 16, 22 (Tex. App.—Tyler 1986, writ ref’d

n.r.e.) (citing Cowling, 312 S.W.2d at 946).

“In an appeal from a bench trial, the trial court’s findings of fact have the same

force and effect as jury findings.” SCS Builders, Inc. v. Searcy, 390 S.W.3d 534, 539 (Tex.

App.—Eastland 2012, no pet.); Sharifi v. Steen Auto., LLC, 370 S.W.3d 126, 147 (Tex.

App.—Dallas 2012, no pet.). “[W]hen a party challenges the trial court’s findings of

fact, . . . we review those findings by the same standards we use in reviewing the

17
sufficiency of the evidence supporting a jury’s answers.” Garcia v. Tautenhahn, 314

S.W.3d 541, 544 (Tex. App.—Corpus Christi–Edinburg 2010, no pet.). “If there is any

evidence of a probative nature to support the trial court’s judgment, we will not set it aside,

and we may not substitute our findings of fact for those of the trial court.” Id.

“Unchallenged findings of fact are binding on the appellate court, unless the contrary is

established as a matter of law or there is no evidence to support the finding.” Sharifi, 370

S.W.3d at 147; Hegar v. El Paso Elec. Co., 629 S.W.3d 518, 527 (Tex. App.—Austin

2021, pet. denied); see also Tenaska Energy, Inc. v. Ponderosa Pine Energy, LLC, 437

S.W.3d 518, 523 (Tex. 2014) (“We defer to unchallenged findings of fact that are

supported by some evidence.”). “When . . . the appellate record contains a reporter’s

record, findings of fact on disputed issues are not conclusive and may be challenged for

sufficiency of the evidence.” Sharifi, 370 S.W.3d at 147. We review the trial court’s

findings of fact for both legal and factual sufficiency. BMC Software Belg., N.V. v.

Marchand, 83 S.W.3d 789, 794 (Tex. 2002).

A legal sufficiency challenge may only be sustained when (1) the record discloses

a complete absence of evidence of a vital fact, (2) the court is barred by rules of law or of

evidence from giving weight to the only evidence offered to prove a vital fact, (3) the

evidence offered to prove a vital fact is no more than a mere scintilla, or (4) the evidence

establishes conclusively the opposite of a vital fact. City of Keller v. Wilson, 168 S.W.3d

802, 810 (Tex. 2005). In determining whether there is legally sufficient evidence to

support the finding, we must consider evidence favorable to the finding if a reasonable

factfinder could, and disregard evidence contrary to the finding unless a reasonable

factfinder could not. Id. The final test for legal sufficiency must always be whether the

18
evidence at trial would enable reasonable and fair-minded people to reach the verdict

under review. Id. at 822.

In reviewing the factual sufficiency of a finding where the party challenging it does

not have the burden of proof, as here, we weigh all the evidence in the record and set

aside the challenged finding only if it is so contrary to the overwhelming weight and

preponderance of the evidence that it is clearly wrong and manifestly unjust. 5 Ortiz v.

Jones, 917 S.W.2d 770, 772 (Tex.1996) (per curiam); Cain v. Bain, 709 S.W.2d 175, 176

(Tex.1986). We must defer to the trial court’s determinations of witness credibility and

demeanor. See In re J.O.A., 283 S.W.3d 336, 346 (Tex. 2009).

We review a trial court’s conclusions of law de novo, whether express or implied.

See BMC Software, 83 S.W.3d at 794; Santa Fe Petroleum, L.L.C. v. Star Canyon Corp.,

156 S.W.3d 630, 636 (Tex. App—Tyler 2004, no pet.). “The appellant may not challenge

a trial court’s conclusions of law for factual insufficiency; however, the reviewing court

may review the trial court’s legal conclusions drawn from the facts to determine their

correctness.” Id. “We are not bound by the trial court’s legal conclusions, but the

conclusions of law will be upheld on appeal if the judgment can be sustained on any legal

theory supported by the evidence.” Sheetz v. Slaughter, 503 S.W.3d 495, 502 (Tex.

App.—Dallas 2016, no pet.). “Incorrect conclusions of law will not require reversal if the

controlling findings of fact will support a correct legal theory.” Id. “Moreover, conclusions

of law may not be reversed unless they are erroneous as a matter of law.” Id.

5 We note that it was appellees’ burden to prove their affirmative defenses by presenting sufficient

evidence to establish said defenses. See Zorrilla v. Aypco Constr. II, LLC, 469 S.W.3d 143, 156–57 (Tex.
2015).
19
III. ABANDONMENT AND WAIVER

Morgan raises numerous issues on appeal but since we resolve this matter solely

based on abandonment and waiver, we only address Morgan’s eighth issue. 6 See TEX.

R. APP. P. 47.1. By her eighth issue, Morgan argues that the trial court erred by concluding

that she “waived or abandoned her right to enforce each of the [restrictions].”

A. Applicable Law

“Waiver is an intentional relinquishment of a known right or intentional conduct

inconsistent with claiming that right.” Bertucci v. Watkins, 690 S.W.3d 341, 364 (Tex.

App.—Austin 2022) (citing Jernigan v. Langley, 111 S.W.3d 153, 156 (Tex. 2003)).

Restrictive covenants, like other contract provisions, may be waived. See Sharpstown

Civic Ass’n, Inc. v. Pickett, 679 S.W.2d 956, 958 (Tex. 1984). To establish abandonment

or waiver of restrictive covenants, a party must prove that “the violations then existing

were so extensive and material as to reasonably lead to the conclusion that the

restrictions have been abandoned.” Cox v. Melson-Fulsom, 956 S.W.2d 791, 794 (Tex.

App.—Austin 1997, no pet.).

“In order to find a waiver of a residential restrictive covenant, the proposed non-

conforming structure must not have a substantially different effect on the neighborhood

than any prior violation.” Bollier v. Austin Gurdwara Sahib, Inc., Nos. 03–09–00313–CV

and 03–09–00317–CV, 2010 WL 2698765, at *6 (Tex. App.—Austin July 9, 2010, pet.

denied) (mem. op.) (citing Sharpstown, 697 S.W.2d at 957). Stated differently, if the prior,

unobjected-to violations are insignificant or insubstantial when compared to the

6 Morgan also requested declaratory relief in her live pleading; however, she does not raise any

issues related to this request. Therefore, we do not address any portion of the trial court’s judgment
regarding declaratory relief.
20
complained-of use, there is no waiver of restrictive covenants. See Sharpstown, 697

S.W.2d at 957–58. A court may refuse to enforce a restrictive covenant “because of the

acquiescence of the lot owners in such substantial violations within the restricted area as

to amount to an abandonment of the covenant or a waiver of the right to enforce it.”

Cowling, 312 S.W.2d at 945.

Waiver is generally a question of fact to be determined by the factfinder. See

Crosstex Energy Servs., L.P. v. Pro Plus, Inc., 430 S.W.3d 384, 394 (Tex. 2014); Tenneco

Inc. v. Enter. Prods. Co., 925 S.W.2d 640, 643 (Tex. 1996). Factors used to determine if

the enforcement of a restrictive covenant has been waived include: the number, nature,

and severity of the existing violations; any prior acts of enforcement; and whether it is still

possible to realize to a substantial degree the benefits intended through the covenants.

Anderson Mill Mun. Util. Dist. v. Robbins, 584 S.W.3d 463, 477 (Tex. App.—Austin 2005,

no pet.) (citing Cox, 956 S.W.2d at 794). “The failure to object to trivial violations does not

preclude enforcement of the covenants.” Cox, 956 S.W.2d at 794 (citing Stewart v. Welsh,

178 S.W.2d 506, 508 (Tex. 1944)). Further, “[i]t is well established in Texas that a property

owner is not precluded from enforcing a deed restriction which materially affects her

merely because she previously failed to complain of a violation which did not materially

affect her in the enjoyment of her property.” Id. (citing Stewart, 178 S.W.2d at 508).

B. Analysis

To determine if the enforcement of the restrictions in this case have been waived,

we analyze the factors discussed above. See Anderson Mill, 584 S.W.3d at 477. In doing

so, “[w]e defer to unchallenged findings of fact that are supported by some evidence,”

and therefore, we will proceed to evaluate the sufficiency of the evidence in support of

21
the trial court’s findings concerning abandonment and waiver. See Tenaska Energy, 437

S.W.3d at 523; Sharifi, 370 S.W.3d at 147.

1. Existing Violations

One factor that we consider is the number, nature, and severity of the existing

violations. See Anderson Mill, 584 S.W.3d at 477. In relation to this factor, the trial court

issued the following findings: “There are numerous extensive and material violations of

the restrictions throughout the Shenandoah, Section Two subdivision”; “Several of the

existing violations involve activities similar in nature to those of [Round 2]”; and “It would

be reasonable for a person seeing the number, nature and severity of violations within

the subdivision to conclude that the restrictions had been abandoned and enforcement

waived.”

The evidence at trial supported these findings by establishing that the Stans

noticed there were numerous businesses in the area, which was part of the reason they

purchased property in the subdivision. It also established that some of these businesses

were not located in Section Two; however, there was ample evidence to support the

presence of businesses that were located in the subdivision including a computer repair

shop, a photography studio, an air conditioning business, a BMW repair shop, an assisted

living facility, and a boat business, among others. Of these businesses, the computer

repair shop, photography studio, and the assisted living facility had signs posted outside

of their business.

Moreover, photographs admitted at trial depicted the BMW repair shop as a large

metal outbuilding with multiple vehicles parked near the front of the building, similar to

Round 2’s business. The proprietor of “Chevy Mike” testified that he does vehicle repair

22
work for “strangers.” In addition, “Chevy Mike’s” outbuilding was not constructed of

materials similar to his main home, as established by Joseph’s testimony. Griffiths’s

testimony established that at least one of these businesses had been in the subdivision

for fifteen years. Gattuso also estimated that the BMW repair shop had been in operation

for four or five years, and that the assisted living facility had been there for approximately

fifteen years. Morgan additionally acknowledged that there were various metal

outbuildings located around the area that did not match the main home. These metal

outbuildings were depicted in the photographs admitted at trial. Other photographs taken

from the subdivision also depicted rubbish, trash and garbage on residential property. In

addition, according to photographs and testimony by Heather and Morgan, numerous

properties had non-compliant front yard fences such as a wooden fence or a white picket

fence. Morgan’s front yard fence was also not of the chain link variety as evidenced by

subdivision photographs.

Morgan testified that she had an outbuilding on her own lot which was not approved

by the ACC that was intended to be used for her child’s homeschooling. In relation to this

outbuilding, photographic evidence established that Morgan’s outbuilding extended in

front of the rear of her home. Griffiths’s two outbuildings were also not approved by the

ACC. In addition, Joseph provided testimony regarding the overwhelming amount of lots

that have been subdivided as evidenced by tax documents.

While Morgan concedes that there have been some previous violations of the

restrictions, she asserts that appellees “failed to produce any evidence that there has

been prior violations . . . comparable in effect on the neighborhood to the violations by

[appellees].” In relation to this factor, Morgan specifically argues that appellees “failed to

23
provide any evidence of a single prior violation that meets the [Sharpstown] test.” See

Sharpstown, 679 S.W.2d at 958. (“[I]n order to support a waiver of residential restrictions

the proposed use must not be substantially different in its effect on the neighborhood from

any prior violation.”) She focuses her argument on the “high traffic at Round 2” and argues

that Round 2’s business violations were not comparable to the BMW repair shop’s

violations. Morgan relies on the testimony adduced at trial and asserts that Heather

admitted to the volume of traffic near Round 2 and Heather also noted more vehicles

closer to the street than at the BMW repair shop. She also argues that “the offroad vehicle

customization business by Round 2 . . . continues to have[] a profound, negative effect

on their residential neighborhood, unlike any prior violation.” Morgan testified that none

of the prior violations were a nuisance, obnoxious, dangerous, or offensive. She

additionally contends that none of the other trivial violations “materially affect[ed] her in

the enjoyment of her property.” Morgan further testified that the metal building on the

Stans’ property affected her because the “25-f[oo]t-tall metal building” covers her entire

backyard to her left and obstructs her view from watching the sunrise. However, the trial

court was not required to credit any of the testimony in her favor. See In re J.O.A., 283

S.W.3d at 346. We also find that the contrary evidence does not render the trial court’s

finding “clearly wrong and manifestly unjust”; thus, the finding is supported by factually

sufficient evidence. See Ortiz, 917 S.W.2d at 772.

Morgan cites various cases to support her contentions including—Stewart; Sides

v. Saliga, No. 03-17-00732-CV, 2019 WL 2529551, at *13–15 (Tex. App.—Austin June

20, 2019, pet. denied) (mem. op.); and First State Bank of Corpus Christi v. James, 471

S.W.2d 868, 874–75 (Tex. App.—Corpus Christi–Edinburg 1971, no writ). Stewart dealt

24
with a single restriction related to a fence and established the general theory that a lot

owner may still seek to enforce restrictions even if the owner did not attempt to enforce

prior restrictions if the prior violations were trivial or did not materially affect the owner.

See Stewart, 178 S.W.2d at 508. Sides involved a subdivision subject to certain restricted

covenants—these restrictions “provide[d] that the property shall be used for single-family

residential purposes and not for commercial uses; that trash would not be allowed to

accumulate; and that firearms could not be discharged.” See Sides, 2019 WL 2529551,

at *1. In Sides, there was a substance abuse treatment facility operating in the subdivision

for years. See id. at *5. Moreover, the trial court found that the Sideses’ property had

hunting activity, piles of trash, and operation of a home construction business. See id. at

*14. On the other hand, the Saligas began to operate an event center with hundreds of

commercial guests that attracted noise, traffic, and parking concerns, and the Third Court

of Appeals held that the previously discussed violations had a substantially smaller impact

to the subdivision in comparison to the Saligas’ violations. See id. at *15.

In James, appellee sought an injunction to enforce a residential-use-only restriction

against a bank’s proposed use of a lot as a parking lot or driveway. See James, 471

S.W.2d at 870. The trial was before a jury which answered special issues favorably to

appellee. See id. Judgment was entered permanently enjoining the bank from using the

lot “‘for any purpose except private residential use only, for so long as said restrictions

remain in force and effect.’” Id. On appeal, the bank argued that the trial court erred in

holding that the restriction had not been abandoned or waived. See id. at 873. The record

contained evidence of previous violations of the residential-use-only restriction by a dental

office and a real estate office. See id. at 873–74. This Court held that operation of these

25
offices were “merely incidental to the use of each lot as a family residence.” Id. at 874–

75. We also held that “[t]he evidence does not show that the maintenance of the offices

in the homes materially affected the use and enjoyment of any lot in the residential section

as a home.” Id. at 874.

However, those cases are distinguishable from the facts of this case in multiple

ways. For instance, there is no evidence that Round 2 was operating a massive

commercial event center inviting hundreds of guests to the property like in Sides; thus we

find Sides inapposite. See Sides, 2019 WL 2529551, at *15. In addition, the facts in James

are not like that involved in the instant case, which involves a substantial number of

violations of various restrictions. See James, 471 S.W.2d at 874–75. Therefore, we find

James inapposite. Moreover, unlike the cited cases, the numerous violations of the

restrictions in this case involved multiple properties in the subdivision and several of the

restrictions.

In addition, Morgan testified that there were approximately 150 lots in the

subdivision and argues that “there are as many as ten lots in Section [Two] violating the

restriction prohibiting business use and are used for non-residential purposes,” so “the

ratio of such lots is less than 7%.” We agree with our sister court “that statistics are simply

one of many factors to be considered on the waiver issue, regardless of who they favor.”

Pebble Beach Prop. Owners’ Ass’n v. Sherer, 2 S.W.3d 283, 292 (Tex. App.—San

Antonio 1999, pet. denied). Morgan’s assertions alone are not dispositive of her issue on

appeal, as the trial court must weigh multiple factors and equities in making a

determination related to abandonment and waiver, as it did here. See Sharpstown, 697

S.W.2d at 957; Gigowski, 718 S.W.2d at 22; Anderson Mill, 584 S.W.3d at 477.

26
Based on the evidence, we find that the trial court’s findings in relation to this factor

are supported by legally sufficient evidence. See City of Keller, 168 S.W.3d at 822. We

also find that the contrary evidence does not render the findings “clearly wrong and

manifestly unjust”; thus, the findings are supported by factually sufficient evidence. See

Ortiz, 917 S.W.2d at 772. We conclude this factor weighs in favor of abandonment and

waiver. See Anderson Mill, 584 S.W.3d at 477.

2. Prior Acts of Enforcement

Another factor we look at is any prior acts to enforce the restrictions. See id. In

relation to this factor, the trial court issued the following findings of fact: “The Stans

purchased their property because of the lack of a homeowners association and the lack

of enforcement of the restrictions”; “Owners in the [Shenandoah, Section Two] subdivision

were aware of the prior violations but failed to take any action to enforce the restrictions”;

“Prior to the filing of this lawsuit, there have been no enforcement actions against any of

the lots in Shenandoah, Section Two [subdivision]”; and “Prior to the filing of this lawsuit,

[Morgan] failed to take any action to enforce the restrictions against [appellees].”

The record demonstrates that the subdivision restrictions were established in

1971. Although the restrictions created an ACC for the approval of proposed variances,

the trial court found that the committee has been inactive since the late 1970s, as

established by Gonzalez’s testimony. Morgan testified that she spoke with neighbors on

four occasions regarding enforcement of the restrictions. However, the record contains

no evidence showing that any of the subdivision residents nor Morgan herself sought to

enforce the restrictive covenants for fifty years—from their enactment in 1971 until

Morgan’s enforcement action against appellees in December 2021. Gattuso as well as

27
Griffiths also acknowledged the presence of violations and lack of enforcement actions.

Morgan explained that before Round 2 started operating in the subdivision, she was

aware Joseph had four cars and a dumpster in front of his property; however, she waited

two years to file the lawsuit. The record contains no evidence of any proceedings to

enforce any of the prior violations in the subdivision prior to the present underlying lawsuit.

Moreover, Joseph testified that before moving to the subdivision, it appeared that there

was no enforcement of any restrictions based on the number of buildings and businesses

that he saw. Heather additionally stated that the Stans had driven around the subdivision

for years and noticed the lack of a homeowner’s association and the number of

businesses in the area. While Morgan did testify that one of the important reasons that

she purchased the property was because she was aware of the restrictions and that the

subdivision was quiet and rural, the trial court was not required to credit it. See In re

J.O.A., 283 S.W.3d at 346.

Accordingly, we find that the trial court’s findings in relation to this factor are

supported by legally sufficient evidence. See City of Keller, 168 S.W.3d at 822. We further

find that the contrary evidence does not render the findings “clearly wrong and manifestly

unjust”; thus, the findings are supported by factually sufficient evidence. See Ortiz, 917

S.W.2d at 772. We conclude this factor weighs in favor of abandonment and waiver. 7

See Anderson Mill, 584 S.W.3d at 477.

Under these circumstances, we find that the trial court could have reasonably

7 We note that one of the factors in making a waiver determination includes whether it is still
possible to realize to a substantial degree the benefits intended through the covenants. Anderson Mill Mun.
Util. Dist. v. Robbins, 584 S.W.3d 463, 477 (Tex. App.—Austin 2005, no pet.). The trial court did not make
express findings related to this factor. However, the factors noted in Anderson Mill are merely
considerations relevant in determining whether subdivision restrictions have been abandoned or waived.
See id.
28
inferred that all of the restrictions were abandoned and Morgan’s attempted enforcement

of them waived. See Densmore v. McCarley, No. 02-19-00287-CV, 2020 WL 1293696,

at *8 (Tex. App.—Fort Worth March 19, 2020, no pet.) (mem. op.) (concluding that

evidence concerning extensive and material violations of subdivision restrictions over the

course of thirty-five years was legally and factually sufficient to support the trial court’s

conclusion that the restrictions were abandoned and attempted enforcement of said

restrictions waived). We conclude that the trial court did not err when it determined as a

matter of law that the restrictions governing Shenandoah, Section Two subdivision were

abandoned and waived. See Sheetz, 503 S.W.3d at 502. Therefore, the trial court did not

abuse its discretion when it denied Morgan’s requests for injunctive relief, attorney’s fees,

and costs related to the enforcement of said restrictions. 8

IV. CONCLUSION

We affirm the trial court’s judgment.

CLARISSA SILVA
Justice

Delivered and filed on the
16th day of March, 2026.

8 Morgan additionally argues that the trial court erred by concluding that her claims were barred by

the express terms of the restrictions as well as by the unclean hands doctrine. She also asserts that the
trial court erred by refusing to enforce paragraphs one, four, seven, twelve, and fourteen of the restrictions.
Morgan further contends that the trial court erred by denying injunctive relief, attorney’s fees and costs.
Lastly, she argues that statute of limitations does not bar her claims. In light of our conclusion regarding
Morgan’s eighth issue, we need not address her remaining arguments. See TEX. R. APP. P. 47.1 (“The court
of appeals must hand down a written opinion that is as brief as practicable but that addresses every issue
raised and necessary to final disposition of the appeal.”).

29