Texas = Judiciary Online

O P I N I O N

=20 This is a lawsuit over a chain-link fence. Appellant = Indian=20 Beach Property = Owners=92=20 Association (=93Indian=94) appeals a judgment entered in favor of = appellees=20 Mary C. Linden (=93Linden=94) and = B.J. Linden=20 (=93B.J.=94). In = thirty-five=20 issues, Indian challenges the trial court=92s failure to enter a = permanent=20 injunction against Linden and B.J., the legal and factual = sufficiency of=20 the evidence supporting the jury=92s finding that Linden and = B.J.=92s=20 construction of the chain-link fence was not a wrongful act, the = denial of=20 Indian=92s request for attorney=92s fees, the propriety of = submitting certain=20 jury questions and their form, the legal and factual sufficiency = of the=20 evidence to support the jury=92s findings, the legal basis for the = trial=20 court=92s declaratory judgment, and the legal basis for the trial = court=92s=20 award of attorney=92s fees to Linden and B.J. We conclude that the = trial court=20 erred in entering a declaratory judgment stating that the deed=20 restrictions applicable to Linden=92s=20 property do not prohibit the use of chain-link fence as a fencing=20 material, and stating that the use of chain-link fence on = Linden=92s property is in harmony with the = existing=20 structures in the Indian = Beach=20 subdivision. We = therefore=20 modify the trial court=92s judgment and delete paragraphs one and = two. We affirm the remainder = of the=20 trial court=92s judgment.

Background

=20 Linden owns a lot in the=20 Indian Beach subdivision on Galveston Island = that is=20 subject to certain covenants and restrictions contained in the = deed. B.J. is Linden=92s=20 ex-husband. B.J. = has no=20 ownership interest in the property at issue in this case, but he = helps=20 Linden manage = the=20 property and was extensively involved in the sequence of events = leading to=20 this litigation. = Indian is=20 the entity responsible for enforcing deed restrictions in the = Indian = Beach=20 subdivision. Paragraph three=20 of the deed restrictions on Linden=92s = property=20 provides as follows:

3. =20 Architectural Control and Construction Time. No Building, fence, = wall, pier,=20 swimming pool, play ground equipment, outdoor cooking or eating = facility=20 of permanent nature or other structure of any kind shall be = commenced,=20 erected, or maintained upon any lot in the Subdivision, nor shall = any=20 exterior addition or change or alteration of the exterior be made = until=20 the plans and specifications showing the nature, kind, shape, = height,=20 materials and location of the same shall have been submitted to = and=20 approved in writing by the Architectural Control Committee (herein = sometimes called =93the Committee=94) composed of three or more=20 representatives from time to time appointed by Developer. . . = . Approval by the = Committee shall be=20 granted or withheld based upon [1] compliance with the provisions = of this=20 instrument, [2] quality of materials, [3] harmony of external = design with=20 the existing and proposed structures, [4] location with respect to = topographical and finished grade elevation, and [5] such other = relevant=20 considerations as the Committee may, in the exercise of its sole=20 discretion, determine to be of significance in such = determination. Each application made = for=20 architectural control approval shall be accompanied by a fee of = $150.00 to=20 defray expenses of the Committee and by plans and specifications = of all=20 proposed walls, drives, curb cuts, structures, septic tanks, drain = fields,=20 and other matters relevant to architectural approval. If the plans and = specifications=20 are approved by the Committee, a Certificate of Compliance shall = be issued=20 authorizing construction of the proposed improvements in = accordance with=20 the plans and specifications so approved. In the event the = Committee fails=20 to approve or disapprove the plans within forty-five (45) days = after same=20 have been submitted to it, approval will be presumed and this = paragraph=20 will be deemed to have been fully complied with.

=20 On February 25, 2004, Linden = submitted a=20 formal application to the Architectural Control Committee, hoping = to=20 obtain the Committee=92s approval to construct a chain-link fence = around the=20 perimeter of her property. = Susan Gonzales, an agent of Indian, called Linden and B.J.=20 on March 15, 2004, and informed them that the Committee had denied = Linden=92s=20 application. B.J. = and=20 Linden believed that the = Committee=20 had improperly denied the application because Gonzales referenced = a=20 setback provision in the deed restrictions that was not applicable = to=20 Linden=92s = property as one=20 of the reasons for the denial. =20 Gonzales suggested that Linden reapply = and=20 express her contentions to the Committee. Gonzales told B.J. that a = letter=20 explaining Linden=92s = position would=20 be a sufficient reapplication. =20 During that discussion, Gonzales emphasized that the = Committee had=20 another forty-five days to act on the new application. B.J. submitted = Linden=92s = reapplication=20 letter on March 15, 2004 and Gonzales received it the same = day. Indian took no action = with regard=20 to Linden=92s = reapplication=20 within the next forty-five days. =20 On May 5, 2004, Linden and B.J. sent a = letter to=20 Indian advising it that, according to paragraph three of the deed=20 restrictions, the Architectural Control Committee was presumed to = have=20 approved Linden=92s = chain-link=20 fence, and construction of the fence would commence = immediately. Linden and = B.J.=20 completed construction of the fence before the end of May = 2004.

=20 Indian then sued Linden and = B.J.,=20 asserting that they had violated the deed restrictions by building = the=20 fence without the approval of the Architectural Control = Committee. Indian sought to = permanently=20 enjoin Linden and B.J. from = building a=20 chain-link fence on Linden=92s property, and = an order=20 mandating that Linden and = B.J. remove=20 the existing fence. = Indian=20 also sought its attorney=92s fees. =20 Linden and = B.J.=20 answered, specifically denying that they had violated the deed=20 restrictions. = Linden and B.J.=20 also counterclaimed, seeking a declaratory judgment that their=20 construction of the fence was in compliance with the deed = restrictions=20 applicable to Linden=92s = property. Linden and = B.J. sought=20 attorney=92s fees as well. =20

=20 At trial, the issues upon which Linden and B.J. sought = declaratory=20 judgment were expanded to include a determination of whether the = deed=20 restrictions prohibit chain-link as an allowable fence material, = and=20 whether the chain-link fence on Linden=92s = property is in=20 harmony with existing structures in the subdivision. The jury returned a = verdict in=20 favor of Linden and = B.J., and the=20 trial court entered a judgment on the verdict. Indian=20 appeals.

Permanent=20 Injunction

In its first, second, = and third=20 issues, Indian contends (1) the trial court abused its discretion = in=20 failing to grant a permanent injunction in favor of Indian = mandating that=20 Linden remove her chain-link fence, (2) the trial court erred in = ordering=20 that Indian take nothing, and (3) the trial court erred in finding = that=20 the equities in favor of Indian did not outweigh the equities in = favor of=20 Linden, and that equitable relief in favor of Indian was not = expedient,=20 necessary, or proper.

Injunctive=20 relief is appropriate upon a showing of the following elements: = (1) the=20 existence of a wrongful act, (2) the existence of imminent harm, = (3) the=20 existence of irreparable injury, and (4) the absence of an = adequate remedy=20 at law. Jim = Rutherford=20 Invs., Inc. v. Terramar Beach=20 Cmty. Ass=92n, 25=20 S.W.3d 845, 849 (Tex. App.=97Houston [14th = Dist.]=20 2000, pet. denied). =20 =93Because = an=20 injunction is an equitable remedy, a trial court weighs the = respective=20 conveniences and hardships of the parties and balances the = equities.=94 Computek Computer & = Office=20 Supplies, Inc. v. Walton, 156 S.W.3d 217, 220 (Tex. = App.=97Dallas=20 2005, no pet.); Triantaphyllis=20 v. Gamble,=20 93 S.W.3d 398, 401=9602 (Tex. App.=97Houston [14th Dist.] 2002, = pet.=20 denied); see also State v. Tex. Pet Foods, Inc., 591 S.W.2d 800, 803 = (Tex.=20 1979) (=93The jury does not determine the expediency, necessity, = or=20 propriety of equitable relief. . . . =20 The determination of whether to grant an injunction based = upon the=20 ultimate issues of fact found by the jury is for the trial court,=20 exercising chancery powers, and not the jury.=94). A party must substantially = violate a=20 deed restriction before the trial court may issue a permanent=20 injunction. = See=20 Tien Tao Ass=92n v. Kingsbridge Park=20 Cmty. Ass=92n, Inc.,=20 953 S.W.2d 525, 529=9630 (Tex. App.=97Houston [1st Dist.] 1997, no = pet.).

We=20 review a trial court=92s ruling on applications for permanent injunctions for = an abuse of discretion. Operation = Rescue-Nat=92l v.=20 Planned Parenthood of Houston & Se. Tex., Inc., 975 S.W.2d 546, 560 = (Tex.=20 1998). An abuse of discretion = occurs if=20 the trial court (1) acts arbitrarily and unreasonably, without = reference=20 to guiding rules or principles, or (2) misapplies the law to the=20 established facts of the case. =20 Butler v. Arrow Mirror & Glass, = Inc., = 51 S.W.3d=20 787, 791 (Tex. = App.=97Houston [1st = Dist.]=20 2001, no pet.). = =93The=20 trial court does not abuse its discretion when its decision is = based on=20 conflicting evidence and some evidence in the record reasonably = supports=20 the trial court=92s decision.=94 =20 Triantaphyllis, 93 = S.W.3d at=20 402; see also = Davis=20 v. Huey,=20 571 S.W.2d 859, 862 (Tex.=20 1978). = A=20 clear abuse of discretion arises only when the trial court=92s = decision is=20 not supported by some evidence of substantial and probative=20 character. Envoy = Med.=20 Sys., L.L.C. v. State, 108 S.W.3d 333, 335 = (Tex. = App.=97Austin 2003,=20 no pet.). = A=20 party seeking an injunction has the burden of showing that a clear = equity=20 demands the injunction. =20 Christensen v. Integrity Ins. Co., 719 S.W.2d 161, 163 = (Tex. 1986); = Bridas=20 Corp. v. Unocal Corp., 16=20 S.W.3d 887, 890 (Tex.=20 App.=97Houston [14th = Dist.]=20 2000, pet. dism=92d w.o.j.). A party seeking = enforcement of a=20 deed restriction always has the burden at trial to demonstrate the = enforceability of the restriction. =20 City of Pasadena v. Gennedy, 125 S.W.3d 687, 695 = (Tex.=20 App.=97Houston [1st = Dist.]=20 2003, pet. denied). =20

In this case, the = trial court=20 did not abuse its discretion in refusing to grant a permanent = injunction=20 in favor of Indian. = The jury=20 found that Linden and = B.J.=92s=20 construction of the fence was not a wrongful act. Indian therefore failed = to=20 establish the first element of its claim for injunctive = relief. See=20 Jordan v. Landry=92s Seafood Rest., = Inc., 89 S.W.3d 737, 742=9643 (Tex. App.=97Houston [1st Dist.] 2002, = pet.=20 denied) (holding plaintiff failed to show existence of wrongful=20 act); Pinebrook = Props., Ltd. v.=20 Brookhaven=20 Lake Prop.=20 Owners Ass=92n, 77 S.W.3d 487, 505 (Tex. App.=97Texarkana = 2002, pet.=20 denied) (holding trial court abused its discretion in entering = injunction=20 because there was no evidence of existence of wrongful act). In addition, the balance = of the=20 equities weighs against the imposition of an injunction in this = case=20 because the evidence at trial demonstrated that Indian did not = take any=20 action with regard to Linden=92s = reapplication=20 within the forty-five days prescribed by the deed = restrictions. See = Walton,=20 156 S.W.3d at 220; Triantaphyllis,=20 93 S.W.3d at 401=9602; Jim Rutherford, 25 S.W.3d at = 850. Linden = complied with the=20 deed restrictions and the application process throughout all = stages of=20 this case. = According to the=20 deed restrictions, if the Architectural Control=20 Committee fails to approve or disapprove of = an=20 application within forty-five days after it is submitted, approval = will be=20 presumed. The trial = court did=20 not abuse its discretion in declining to award injunctive relief = because=20 the record supports an implied finding that Indian=92s own = inaction resulted=20 in the presumed approval of Linden and B.J.=92s fence; = thus, Indian=20 fails to show that the balance of the equities plainly favors = it. See=20 Jim=20 Rutherford,=20 25 S.W.3d at 850 (holding balance of equities favored imposition = of=20 injunction); Universal=20 Health Servs., Inc. v. Thompson, 24=20 S.W.3d 570, 579 (Tex.=20 App.=97Austin 2000, no pet.)=20 (holding balance of equities favored imposition of=20 injunction). = We overrule = Indian=92s first,=20 second, and third issues.

Wrongful=20 Act

In its fourth and = sixth issues,=20 Indian contends (4) the evidence is legally insufficient to = support the=20 jury=92s finding that Linden and B.J.=92s = construction of=20 the fence was not a wrongful act, and (6) Indian conclusively = established=20 that Linden and = B.J.=92s=20 construction of the fence was a wrongful act.

In a = legal=20 sufficiency challenge by a party with the burden of proof at = trial, we=20 first examine the record for evidence that supports the finding, = while=20 ignoring all evidence to the contrary. Sterner v. Marathon Oil = Co.,=20 767 S.W.2d 686, 690 (Tex. 1989). If there is no evidence = to support=20 the finding, we then examine the entire record to determine if the = contrary proposition is established as a matter of law. =20 Id. Only if the contrary = proposition=20 is established as a matter of law will we sustain the issue. Id.

The=20 evidence is legally sufficient to support the jury=92s finding = that=20 Linden and = B.J.=92s=20 construction of the fence was not a wrongful act. B.J. testified that = Gonzales told=20 him that Linden could = resubmit=20 her application to build a chain-link fence by sending a letter to = the=20 Architectural Control Committee. =20 Gonzales also stated that the Committee would have another=20 forty-five days to grant or deny the application. B.J. faxed = Linden=92s = reapplication=20 letter to Gonzales and the Architectural Control Committee on = March 15,=20 2004. = The Committee took no = action on=20 the letter within the next forty-five days. Paragraph=20 three of the deed restrictions provides that, = =93[i]n the=20 event the Committee fails to approve or disapprove the plans = within=20 forty-five (45) days after same have been submitted to it, = approval will=20 be presumed and this paragraph will be deemed to have been fully = complied=20 with.=94 This = evidence supports=20 the jury=92s finding that Linden and = B.J.=92s=20 construction of the fence was not a wrongful act. Indian=20 has therefore failed to establish that = Linden and = B.J.=92s=20 construction of the fence was a wrongful act as a matter of = law. See Sterner,=20 767 S.W.2d at 690; Gennedy, 125 S.W.3d at 697 = (holding=20 that evidence was sufficient to conclusively establish that deed=20 restriction was applicable);=20 Jim Rutherford,=20 25 S.W.3d at 849=9650 (holding that plaintiff = conclusively=20 proved existence of deed restriction and defendant=92s violation = of=20 restriction). We overrule Indian=92s = fourth and=20 sixth issues. =20

Substantive=20 Law

=20 In its fifth issue, Indian contends that the jury=92s = finding on=20 question one of the jury charge conclusively established that=20 Linden and = B.J. had=20 violated the substantive law, entitling Indian to an = injunction. See Jim Rutherford, 25 = S.W.3d at=20 848 (=93However, where the facts = conclusively=20 show that a party is violating the substantive law, the = trial court=20 should enjoin the violation, and in such case, there is no = discretion to=20 be exercised.=94); see=20 also City=20 of Keller v. Wilson,=20 168 S.W.3d 802, 823 (Tex. 2005) (=93Judgment = without or against a jury verdict is proper at any course of the=20 proceedings only when the law does not allow reasonable jurors to = decide=20 otherwise.=94). =20 In question one, the jury found that = Linden and = B.J. had=20 constructed the fence without the written approval of the = Architectural=20 Control Committee. =20

The deed restrictions = expressly=20 state that, =93[i]n=20 the event the Committee fails to approve or disapprove the plans = within=20 forty-five (45) days after same have been submitted to it, = approval will=20 be presumed and this paragraph will be deemed to have been fully = complied=20 with.=94 This = provision=20 explains the jury=92s answer to question two, in which the jury = found that=20 Linden and = B.J. did not=20 wrongfully construct the fence. =20 As discussed above, the evidence is legally sufficient to = support a=20 finding that the written approval of the Committee was unnecessary = under=20 the facts of this case because Linden = resubmitted her=20 application for the construction of the chain-link fence when B.J. = faxed=20 Gonzales the March 15 letter. =20 The Committee then took no action with regard to the = reapplication=20 letter within the forty-five day period prescribed by the deed=20 restrictions. = Linden and = B.J.=20 therefore did not violate the deed restrictions or any other = substantive=20 law when they built the fence without the written approval of the=20 Architectural Control Committee. =20 We overrule Indian=92s fifth issue.

Legal=20 and Factual Sufficiency

=20 In its twenty-second, twenty-third, and twenty-eighth = issues,=20 Indian challenges the legal and factual sufficiency of the = evidence=20 supporting the jury=92s finding in question five that Linden and=20 B.J. did not violate the applicable deed restrictions in = constructing the=20 fence on Linden=92s=20 property.

The=20 test for legal sufficiency is=20 =93whether the evidence at trial would enable reasonable and = fair-minded=20 people to reach the verdict under review.=94 City of Keller, 168 S.W.3d at = 827. In making this = determination, we=20 credit favorable evidence if a reasonable fact-finder could, and = disregard=20 contrary evidence unless a reasonable fact-finder could not. Id. = So long as the evidence = falls=20 within the zone of reasonable disagreement, we may not substitute = our=20 judgment for that of the fact-finder. Id. at = 822. The trier of fact is the = sole=20 judge of the credibility of the witnesses and the weight to give = their=20 testimony. = Id. at = 819. Although we consider the = evidence=20 in the light most favorable to the challenged findings, indulging = every=20 reasonable inference that supports them, we may not disregard = evidence=20 that allows only one inference. =20 Id. at = 822.

In=20 reviewing a factual sufficiency point, we consider all the = evidence=20 supporting and contradicting the finding. Plas-Tex, Inc. v. = U.S. Steel=20 Corp., 772 = S.W.2d=20 442, 445 (Tex. = 1989); HTS=20 Servs., Inc. v. Hallwood Realty Partners, L.P., 190=20 S.W.3d 108, 111 (Tex.=20 App.=97Houston [1st Dist.] 2005, no=20 pet.). We set aside the verdict = only if=20 the finding is so contrary to the overwhelming weight of the = evidence as=20 to be clearly wrong and unjust. =20 Cain v. Bain, 709 S.W.2d 175, 176 = (Tex.=20 1986). Jurors are = the sole=20 judges of the credibility of the witnesses and the weight to give = their=20 testimony. City of Keller, 168 S.W.3d at = 819. They may choose to = believe one=20 witness and disbelieve another. =20 Id.

Paragraph three of = the deed=20 restrictions begins by stating:

No Building, fence, wall, pier, swimming = pool,=20 play ground equipment, outdoor cooking or eating facility of = permanent=20 nature or other structure of any kind shall be commenced, erected, = or=20 maintained upon any lot in the Subdivision, nor shall any exterior = addition or change or alteration of the exterior be made until the = plans=20 and specifications showing the nature, kind, shape, height, = materials and=20 location of the same shall have been submitted to and approved in = writing=20 by the Architectural Control Committee . . . = .

In February 2004, = Linden = submitted her=20 formal application to the Architectural Control Committee to = obtain the=20 Committee=92s approval to construct a chain-link fence. Gonzales called = Linden and=20 B.J. on March 15, 2004, and informed them that the Committee had = denied=20 Linden=92s=20 application. B.J. = and=20 Linden believed that the = Committee=20 had improperly denied the application because Gonzales referenced = a=20 setback provision in the deed restrictions that was not applicable = to=20 Linden=92s = property as one=20 of the reasons for the denial. =20 B.J.=20 testified that Gonzales told him that Linden could = resubmit=20 her application to build a chain-link fence by sending a letter to = the=20 Architectural Control Committee. =20 B.J. also testified that Gonzales stated that the Committee = would=20 have another forty-five days to grant or deny the = application. B.J. faxed Linden=92s = reapplication=20 letter to Gonzales and the Architectural Control Committee on = March 15,=20 2004. Gonzales = testified that=20 the letter did not constitute a reapplication and it was not = regarded as=20 such by herself or the Committee. =20 The Committee took no action with regard to = the=20 letter within the next forty-five days. Paragraph=20 three of the deed restrictions provides that, = =93[i]n the=20 event the Committee fails to approve or disapprove the plans = within=20 forty-five (45) days after same have been submitted to it, = approval will=20 be presumed and this paragraph will be deemed to have been fully = complied=20 with.=94

We=20 hold that this evidence =93would enable reasonable and fair-minded = people to=20 reach the verdict under review.=94 =20 City of Keller, 168=20 S.W.3d at 827. =20 The=20 evidence is therefore legally sufficient to support the jury=92s = finding=20 that Linden and = B.J.=92s=20 construction of the fence did not violate any applicable deed = restrictions=20 on Linden=92s = property. See Gennedy, 125 S.W.3d at 700 = (holding=20 evidence was legally insufficient to support finding that deed=20 restrictions had been amended); Jim=20 Rutherford,=20 25 S.W.3d at 849=9650 (holding plaintiff = conclusively proved=20 existence of deed restriction and defendant=92s violation of=20 restriction). =

Considering=20 all the evidence supporting and contradicting the finding, we = cannot say=20 the jury=92s finding is so contrary to the overwhelming weight of = the=20 evidence as to be clearly wrong and unjust. See Cain, 709 S.W.2d at = 176. We therefore hold that=20 the=20 evidence is factually sufficient to support the jury=92s finding = that=20 Linden and B.J.=92s = construction=20 of the fence did not violate any applicable deed restrictions on=20 Linden=92s = property. See Tien Tao, 953 S.W.2d = at 529=9631=20 (holding evidence was factually sufficient to support finding that = defendant violated deed restrictions); Guajardo v.=20 Neece, 758 S.W.2d 696, = 698=9699 (Tex.=20 App.=97Fort Worth 1988, no writ) (holding evidence was sufficient = to support=20 finding that defendant violated deed restrictions). We overrule Indian=92s=20 twenty-second, twenty-third, and twenty-eighth issues.

Factual=20 Sufficiency

In its seventh issue, = Indian=20 contends the evidence is factually insufficient to support the = jury=92s=20 finding that Linden = and B.J.=92s=20 construction of the fence was not a wrongful act. =

Paragraph three of = the deed=20 restrictions begins by stating:

In February 2004,=20 Linden submitted her = formal=20 application to the Architectural Control Committee to obtain the=20 Committee=92s approval to construct a chain-link fence. Gonzales called = Linden and B.J. on March 15, 2004, = and informed=20 them that the Committee had denied Linden=92s application. B.J. and Linden believed that the Committee = had=20 improperly denied the application because Gonzales referenced a = setback=20 provision in the deed restrictions that was not applicable to=20 Linden=92s property = as one of the=20 reasons for the denial. = B.J.=20 testified that Gonzales told him that Linden could resubmit her application = to build=20 a chain-link fence by sending a letter to the Architectural = Control=20 Committee. B.J. = also=20 testified that Gonzales stated that the Committee would have = another=20 forty-five days to grant or deny the application. B.J. faxed = Linden=92s reapplication letter to = Gonzales and=20 the Architectural Control Committee on March 15, 2004. Gonzales testified that = the letter=20 did not constitute a reapplication and it was not regarded as such = by=20 herself or the Committee. =20 The Committee took no action with regard to = the=20 letter within the next forty-five days. Paragraph=20 three of the deed restrictions provides that, = =93[i]n the=20 event the Committee fails to approve or disapprove the plans = within=20 forty-five (45) days after same have been submitted to it, = approval will=20 be presumed and this paragraph will be deemed to have been fully = complied=20 with.=94

Considering=20 all the evidence supporting and contradicting the finding, we hold = that=20 the=20 evidence is factually sufficient to support the jury=92s finding = that=20 Linden and B.J.=92s = construction=20 of the fence was not a wrongful act. =20 See Tien Tao, = 953 S.W.2d=20 at 529=9631 (holding evidence was factually sufficient to support = finding=20 that defendant violated deed restrictions); Guajardo, 758 = S.W.2d at=20 698=9699 (holding evidence was sufficient to support finding that = defendant=20 violated deed restrictions). =20 We overrule Indian=92s seventh issue.

Conflict in Jury=20 Answers

In its eighth issue, = Indian=20 contends the jury=92s findings on questions one and two are in = conflict.=20 In question one, = the jury=20 found that Linden and = B.J.=20 constructed the fence without the written approval of the = Architectural=20 Control Committee. = In=20 question two, the jury found that Linden and B.J. did not wrongfully = construct=20 the fence.

When=20 determining whether jury findings irreconcilably conflict, we = apply a de=20 novo standard of review. = See Bender v. S. Pac. = Transp. Co.,=20 600 S.W.2d 257, 260 (Tex.=20 1980). In=20 reviewing the jury findings for conflict, the threshold question = is=20 whether the findings address the same material fact. Id. The=20 court may not strike down jury answers on the ground of conflict = if there=20 is any reasonable basis upon which they can be reconciled. Id. The court must=20 reconcile apparent conflicts in the jury=92s findings, if = reasonably=20 possible, in light of the pleadings and evidence, the manner of=20 submission, and the other findings considered = as a=20 whole. = Id. The=20 court does not determine whether the findings may reasonably be = viewed as=20 conflicting; to the contrary, the question is whether there is any = reasonable basis upon which the findings may be reconciled. Id. If,=20 however, =93one of the answers would require a judgment in favor = of the=20 plaintiff and the other would require a judgment in favor of the=20 defendant, then the answers are fatally in conflict.=94 Little Rock Furniture = Mfg. Co.=20 v. Dunn,=20 148=20 Tex. 197, 206, 222=20 S.W.2d 985, 991 (1949). = If we=20 determine that a fatal conflict exists, we must remand to the = trial court=20 for a new trial. = See=20 Cotton Belt R.R. v. Hendricks, 768 S.W.2d 865, 870 = (Tex.=20 App.=97Texarkana 1989, no writ) (citing Ins. Co. of N. Am. = v.=20 Brown, 394 S.W.2d 787, 789 (Tex. = 1965)).

Here, the jury = findings in=20 questions one and two do not address the same material facts. Indian=20 presumes the only way Linden=20 and B.J. could have complied with the deed restrictions in = constructing=20 the fence was to receive written approval from the Architectural = Control=20 Committee. The deed = restrictions, however, allow for the presumed approval of = the=20 Architectural Control Committee without an express written = approval. We hold=20 that because jury questions one and two addressed different = material=20 facts, there is no conflict in the answers. =20 See Jabri v. Alsayyed, 145 S.W.3d 660, 668=20 (Tex. = App.=97Houston [14th Dist.] 2004, no pet.) = (holding=20 jury findings did not address same material fact); Crescendo Invs., Inc. v.=20 Brice, 61 S.W.3d 465, 477 (Tex. App.=97San Antonio = 2001, pet.=20 denied) (same); Newsom v. = Whittington, 953=20 S.W.2d 410, 416 (Tex. App.=97Texarkana 1997, pet. denied) = (same); Mercedes-Benz of N. Am., = Inc. v.=20 Dickenson, 720 S.W.2d 844, 856=9657 (Tex. App.=97Fort = Worth 1986,=20 no writ) (same). = Accordingly,=20 we overrule Indian=92s eighth issue.

In its twenty-fourth = issue,=20 Indian contends the jury=92s findings in questions one and five = are in=20 conflict. In = question one,=20 the jury found that Linden and=20 B.J. constructed the fence without the written approval of the=20 Architectural Control Committee. =20 In question five, the jury found that Linden and B.J. did not violate the = deed=20 restrictions applicable to Linden=92s property when they = constructed the=20 fence.

The jury findings in = questions=20 one and five do not address the same material facts. Again,=20 we note that the forty-five day default provision of the deed = restrictions=20 allows for the presumed approval of the Architectural Control=20 Committee. = Therefore,=20 the question one finding that Linden and B.J. constructed the fence = without=20 the written approval of the Architectural Control Committee = addresses a=20 different material fact than the question five finding that=20 Linden and B.J. did = not violate=20 the applicable deed restrictions in constructing the fence. We hold=20 that because jury questions one and five addressed different = material=20 facts, there is no conflict in the answers. See Jabri, 145 = S.W.3d at=20 668; Brice, 61 S.W.3d = at 477; Newsom, 953 S.W.2d = at 416; Dickenson, 720 = S.W.2d at=20 856=9657. Accordingly, we=20 overrule Indian=92s twenty-fourth = issue.

Forty-Five Day=20 Default Provision

In its = ninth,=20 tenth, and eleventh issues, Indian contends (9) the trial court = erred in=20 making the implied finding that Linden=92s March 15 letter was a=20 reapplication for approval of a chain-link fence, (10) the trial = court=20 erred in making the implied finding that a second forty-five day = default=20 period commenced as a result of Linden=92s March 15 letter, and = (11) the=20 trial court erred in making the implied finding that Indian=92s = failure to=20 deny Linden=92s reapplication within the second forty-five day = default=20 period constituted an approval. =20

At = trial, Indian=20 had the burden to show that it was entitled to an injunction = because=20 Linden and B.J.=92s = construction=20 of the fence was a wrongful act. =20 As we determined above, however, the evidence is legally = and=20 factually sufficient to support the jury=92s finding that = Linden and B.J.=92s construction of = the fence was=20 not a wrongful act. = In making=20 this determination, the jury necessarily found that = Linden=92s March 15 letter = constituted a=20 reapplication for approval of a chain-link fence, a second = forty-five day=20 period commenced as a result of the March 15 letter, and = Indian=92s failure=20 to deny Linden=92s = reapplication=20 within the forty-five day period constituted an approval. The trial court = therefore did not=20 err with respect to any implied or =93deemed=94 findings on these = issues. See Tex. R. Civ. P. 279 = (elements=20 omitted from jury charge are deemed found by trial court in = support of=20 judgment when supported by evidence); see also Don=92s Ambulance Serv., Inc. = v. City of=20 San Antonio, 526 S.W.2d 547, 551 (Tex. Civ. App.=97San = Antonio=20 1975, writ ref=92d n.r.e.) (holding there can be no deemed finding = by trial=20 court if jury has already made finding on issue). Accordingly, we overrule = Indian=92s=20 ninth, tenth, and eleventh issues. =20

Indian=92s = Attorney=92s=20 Fees

=20 In its twelfth issue, Indian contends the trial court erred = in=20 failing to award it attorney=92s fees. =20 Section 5.006(a) of the Texas Property Code states, = =93[i]n an action based on breach of a = restrictive=20 covenant pertaining to real property, the court shall allow to a=20 prevailing party who asserted the action reasonable attorney=92s = fees in=20 addition to the party=92s costs and claim.=94 Tex. Prop. Code Ann. = =A7 5.006(a)=20 (Vernon 2004). A = prevailing=20 party=20 is the party to a suit that either successfully prosecutes the = action or=20 defends against it, prevailing on the main issue. Jakab v. Gran Villa = Townhouses=20 Homeowners Ass=92n, Inc., 149 S.W.3d 863, 867 (Tex. = App.=97Dallas=20 2004, no pet.); FDIC=20 v. Graham,=20 882 S.W.2d 890, 900 (Tex. App.=97Houston [14th Dist.] 1994, no = writ). =93Simply stated, the prevailing party is the = party=20 vindicated by the judgment rendered.=94 Jakab, 149 S.W.3d at = 867; Dear=20 v. City of Irving,=20 902 S.W.2d 731, 739 (Tex. App.=97Austin 1995, writ=20 denied). =20

The = trial court=20 properly denied Indian=92s request for attorney=92s fees because = Indian was=20 not the prevailing party in this case. Indian is therefore not = entitled to=20 attorney=92s fees under section 5.006(a). See Anderson=20 v. New Prop. Owners=92 Ass=92n of Newport, = Inc.,=20 122=20 S.W.3d 378, 390=20 (Tex. App.=97Texarkana 2003, pet. denied); Pebble Beach Prop. Owners=92 = Ass=92n v.=20 Sherer, 2 S.W.3d 283, 291=9692 (Tex. App.=97San Antonio = 1999, pet.=20 denied); Meyerland=20 Cmty. Improvement Ass=92n v. Belilove,=20 624 S.W.2d 620, 620=9621 (Tex. App.=97Houston [14th Dist.] 1981, = writ ref=92d=20 n.r.e.). We = overrule Indian=92s=20 twelfth issue.

Jurisdiction

In its thirtieth = issue, Indian=20 contends, =93the trial court abused its discretion in granting a = declaratory=20 judgment because it lacked the required jurisdiction, since all = other=20 owners in Indian Beach Section 1 were not joined as necessary=20 parties.=94 =20

The=20 Declaratory Judgments Act states:

A=20 person interested under a deed, will, written contract, or other = writings=20 constituting a contract or whose rights, status, or other legal = relations=20 are affected by a statute, municipal ordinance, contract, or = franchise may=20 have determined any question of construction or validity arising = under the=20 instrument, statute, ordinance, contract, or franchise and obtain = a=20 declaration of rights, status, or other legal relations=20 thereunder.

Tex.=20 Civ. Prac. & Rem. Code Ann. =A7 = 37.004(a)=20 (Vernon 1997). =93When declaratory = relief is sought,=20 all persons who have or claim any interest that would be affected = by the=20 declaration must be made parties. A declaration does not = prejudice=20 the rights of a person not a party to the proceeding.=94 Id. =A7 = 37.006(a)=20 (Vernon 1997). The general rule is that = =93some of=20 the owners of property in a restricted subdivision may not release = or=20 modify applicable deed restrictions without the concurrence of = others who=20 own property in the subdivision.=94 Smith v. = Williams, 422 S.W.2d 168, 172 = (Tex. = 1967);=20 April Sound Mgmt. Corp. v. Concerned = Prop. Owners=20 for April = Sound, Inc., 153 S.W.3d = 519, 525=20 (Tex. App.=97Amarillo = 2004, no=20 pet.). =

Texas = Rule of=20 Civil Procedure 39 governs=20 joinder of persons under the Declaratory Judgments Act, and=20 like the Declaratory Judgments Act, =93mandates=20 joinder of persons whose interests would be affected by the=20 judgment.=94 Brooks v. Northglen = Ass=92n, 141=20 S.W.3d 158, 162 (Tex. = 2004); see also Tex. R. Civ. P. 39; = Tex. Civ. Prac. & Rem. = Code=20 Ann. =A7 37.006. = =93Rule=20 39 determines whether a trial court has authority to proceed = without=20 joining a person whose presence in the litigation is made = mandatory by the=20 Declaratory Judgment[s] Act.=94 =20 Brooks, 141=20 S.W.3d at 162. Rule = 39(a)=20 provides:

A person who is subject to = service=20 of process shall be joined as a party in the action if (1) in his = absence=20 complete relief cannot be accorded among those already parties, or = (2) he=20 claims an interest relating to the subject of the action and is so = situated that the disposition of the action in his absence may (i) = as a=20 practical matter impair or impede his ability to protect that = interest or=20 (ii) leave any of the persons already parties subject to a = substantial=20 risk of incurring double, multiple, or otherwise inconsistent = obligations=20 by reason of his claimed interest. If he has not been so = joined, the=20 court shall order that he be made a party. If he should join as a = plaintiff=20 but refuses to do so, he may be made a defendant, or, in a proper = case, an=20 involuntary plaintiff.

Tex. R.=20 Civ. P.=20 39(a).

In Wilchester West Concerned = Homeowners=20 LDEF, Inc. v. Wilchester West Fund, Inc., this court held that = the=20 failure to join all property owners affected by a restrictive = covenant in=20 a declaratory judgment action did not deprive the trial court of=20 jurisdiction to enter the declaratory judgment. 177 S.W.3d 552, 559=9660=20 (Tex. = App.=97Houston [1st Dist.] 2005, pet. = denied). We based our holding on = Brooks v. Northglen = Association=20 and Simpson v. Afton Oaks = Civic=20 Club, Inc., two similar cases decided by the Texas Supreme = Court in=20 2004. = Id.;=20 see also Simpson=20 v. Afton Oaks Civic Club, Inc.,=20 145 S.W.3d 169, 170 (Tex.=20 2004); Brooks, 141=20 S.W.3d at 162=9663. = In Wilchester, we reasoned = that while=20 Rule 39(a)(1) requires the presence of all persons who have an = interest=20 in the litigation = so that=20 any relief awarded will effectively and completely adjudicate the=20 dispute, nothing prevented the trial court from = rendering=20 complete relief between the parties to the suit. 177 S.W.3d at = 559=9660. We also noted that a=20 declaratory judgment does not prejudice the rights of any person = that is=20 not a party to the proceeding, and any non-joined homeowner would = be able=20 to pursue individual claims challenging the associations=92 = authority to=20 take the disputed actions, notwithstanding a ruling in the = case. Id. at = 560;=20 see also Tex. = Civ. Prac.=20 & Rem. Code Ann. =A7 37.006(a) (=93A = declaration does=20 not prejudice the rights of a person not a party to the = proceeding.=94). We recognized that the = club and=20 the homeowners=92 associations might be subject to the possibility = of=20 inconsistent judgments since not all of the homeowners in the = subdivision=20 were joined in the lawsuit. Wilchester, 177 = S.W.3d at=20 560. As in Brooks v. Northglen = Association,=20 however, the homeowners=92 associations could have sought relief at = trial by=20 urging the court, among other things, to abate the case, join = absent=20 homeowners, or grant special exceptions. Id. We ultimately held that=20 the failure to join all property owners affected by = the=20 restrictive covenant did not deprive the trial court of = jurisdiction to=20 enter the declaratory judgment. =20 Id.

In = accordance=20 with Wilchester, we = hold that=20 the failure to join the other property owners affected by the = restrictive=20 covenants in this lawsuit did not deprive the trial court of = jurisdiction=20 to enter the declaratory judgment. =20 See Cooper = v. Tex.=20 Gulf Indus., Inc.,=20 513 S.W.2d 200, 204 (Tex. 1974)=20 (stating that =93it would be rare indeed if there were a person = whose=20 presence was so indispensable in the sense that his absence = deprives the=20 court of jurisdiction=94). = Here, nothing prevented the trial court from rendering = complete=20 relief between Linden, B.J., and Indian, and because a declaratory = judgment does not prejudice the rights of any person not a party = to the=20 proceeding, any=20 non-joined homeowner will be able to pursue individual claims=20 notwithstanding the ruling in this case. See Tex.=20 Civ. Prac. & Rem. Code Ann.=20 =A7 37.006(a); Tex. R.=20 Civ. P. 39(a)(1). In addition, just as in = Brooks and = Wilchester, the = possibility that=20 Indian might be subject to inconsistent judgments was caused by = its own=20 inaction in failing to urge=20 the trial court to abate the case, join absent homeowners, or = grant=20 special exceptions. =20 See=20 Brooks, 141 S.W.3d at 163;=20 Wilchester, 177=20 S.W.3d at 560. We hold that the trial = court had=20 jurisdiction to enter the declaratory judgment in this case and we = overrule Indian=92s thirtieth = issue.

Declaratory=20 Judgment

=20 Factual=20 Disputes

In=20 its twenty-ninth issue, Indian contends the trial court =93abused = its=20 discretion in granting a declaratory judgment because there is no = proper=20 legal basis for it.=94

Under = the=20 Declaratory Judgments Act, =93[a] court of record within its = jurisdiction=20 has power to declare rights, status, and other legal relations = whether or=20 not further relief is or could be claimed.=94 Tex. Civ. Prac. & Rem. = Code=20 Ann.
=A7 37.003(a) (Vernon 1997). The=20 purpose of the Declaratory Judgments Act is to settle and to = afford relief=20 from uncertainty and insecurity with respect to rights, status, = and other=20 legal relations; and the Act is to be liberally construed and=20 administered. = Id.=20 =A7 37.002(b) (Vernon = 1997). =20

A person interested under = a deed,=20 will, written contract, or other writings constituting a contract = or whose=20 rights, status, or other legal relations are affected by a = statute,=20 municipal ordinance, contract, or franchise may have determined = any=20 question of construction or validity arising under the instrument, = statute, ordinance, contract, or franchise and obtain a = declaration of=20 rights, status, or other legal relations = thereunder.

Id. =A7 = 37.004(a)=20 (Vernon 1997). =93If a proceeding under = [the=20 Declaratory Judgments Act] involves the determination of an issue = of fact,=20 the issue may be tried and determined in the same manner as issues = of fact=20 are tried and determined in other civil actions in the court in = which the=20 proceeding is pending.=94 =20 Id. =A7 = 37.007=20 (Vernon 1997). The power to determine = an issue of=20 fact, however, =93does not concomitantly carry with it the power = to render=20 such a finding of fact as a declaratory judgment.=94 Hill v. Heritage Res., = Inc.,=20 964 S.W.2d 89, 140 (Tex. App.=97El Paso 1997, pet. denied). If a factual dispute is = the only=20 issue to be resolved, a declaratory judgment is not the proper=20 remedy. Querencia=20 Props. v. New Querencia Capital Partners, = L.L.C.,=20 No. 05-05-01029-CV, 2006 WL 2423589, at *4 (Tex. = App.=97Dallas=20 Aug. 23, 2006, no pet.); Hill, 964 S.W.2d = at 140; Emmco Ins. Co. v. = Burrows,=20 419 S.W.2d 665, 671 (Tex. Civ. App.=97Tyler 1967, no writ).=20

The=20 jury charge in this case asked three questions pertaining to the = trial=20 court=92s declaratory judgment. =20 Question four asked whether =93the deed restrictions = applicable to=20 [Linden=92s] lot = contained a=20 restriction concerning the use of chain link fencing as a fence=20 material.=94 The = jury answered=20 this question negatively. =20 Question five asked whether Linden and B.J. violated the = applicable deed=20 restrictions in constructing the fence on Linden=92s property. The jury also answered = this=20 question negatively. = Question=20 six asked whether the use of chain-link fencing by Linden and B.J. was in harmony with = the=20 existing structures in the subdivision. At trial, = Linden and B.J. had produced evidence = of other=20 chain-link fences in the Indian Beach = subdivision. The jury answered this = question=20 positively. The = trial court=20 then incorporated these factual findings into its judgment, which=20 provides:

(1) the deed restrictions applicable to = Lot 74,=20 Block 3, Section 1 of Indian Beach, a subdivision in Galveston, = Galveston=20 County, Texas, filed of record in the deed of Trust records of the = Public=20 Records of Real Property of the County Clerk of Galveston County, = Texas,=20 at Book 3406, Page 838, do not prohibit the use of chain link as a = fence=20 material in the subdivision;

(2) the use of chain link fence on Lot = 74, Block=20 3, Section 1 of Indian Beach, a subdivision in Galveston, = Galveston=20 County, Texas, filed of record in the deed of Trust records of the = Public=20 Records of Real Property of the County Clerk of Galveston County, = Texas,=20 at Book 3406, Page 838, is in harmony with existing structures in = the=20 subdivision;

[The trial court deleted paragraph=20 3]

(4) Defendants, MARY C. LINDEN and B.J. = LINDEN,=20 are in compliance with the deed restrictions applicable to Lot 74, = Block=20 3, Section 1 of Indian Beach, a subdivision in Galveston, = Galveston=20 County, Texas, filed of record in the Deed of Trust records of the = Public=20 Records of Real Property of the County Clerk of Galveston County, = Texas,=20 at Book 3406, Page 838, concerning their construction of a chain = link=20 fence on said lot.

We=20 hold that whether the deed restrictions applicable to = Linden=92s property prohibit the use = of=20 chain-link fence as a fencing material, and whether chain-link = fence is in=20 harmony with the existing structures in the Indian=20 Beach=20 subdivision, are both purely factual disputes that the trial court = should=20 not have resolved with a declaratory judgment. See = Hill, 964 = S.W.2d at=20 140 (holding that whether party breached contract was purely = factual=20 dispute and declaratory judgment was not proper); Emmco, 419 S.W.2d = at 671=20 (holding that whether defendants acted in consort so as to suspend = interest payments was purely factual dispute and declaratory = judgment was=20 not proper);=20 Lincoln v. Harvey,=20 191 S.W.2d 764, 766 (Tex. Civ. App.=97Dallas 1945, no writ) = (holding that=20 whether rental contracts were on month-to-month = basis or for=20 duration of war was purely factual dispute and declaratory = judgment was=20 not proper). The=20 trial court=92s declaratory judgment simply repeats the factual = findings of=20 the jury and does not =93declare rights, status, = [or] other=20 legal relations,=94=20 as required by the Declaratory Judgments Act. See Tex. Civ. Prac. & Rem. = Code=20 Ann. =A7 37.003(a). A declaratory judgment = was=20 therefore an improper remedy with regard to these two factual = disputes,=20 and we sustain this portion of Indian=92s twenty-ninth issue. We modify the trial = court=92s=20 judgment by deleting paragraphs one and two. Accordingly, we need not address = Indian=92s=20 thirteenth, fourteenth, fifteenth, seventeenth, eighteenth, = nineteenth,=20 twenty-fifth, and twenty-sixth issues as they also challenge = paragraphs=20 one and two of the trial court=92s judgment and the jury findings = supporting=20 these paragraphs.

In = contrast, we=20 hold that the trial court=92s declaratory judgment that = Linden and B.J.=92s construction of = the fence was=20 in compliance with=20 the deed restrictions applicable to Linden=92s property=20 is not purely a factual dispute. =20 The judgment declares Linden and B.J.=92s =93status=94 with = regard to the=20 fence and the deed restrictions on Linden=92s property. See Tex. Civ. Prac. = & Rem.=20 Code Ann.
=A7 37.003(a). = A declaratory judgment = was=20 therefore a proper remedy to resolve this dispute. See=20 Querencia,=20 2006 WL 2423589, at *4 (holding that whether party = was=20 entitled to return of its earnest money under contract was not = purely=20 factual dispute and declaratory judgment was proper); In re A.C.B., 103 = S.W.3d=20 570, 574=9675 (Tex. App.=97San Antonio 2003, no pet.) (holding = that whether=20 party was in arrears on child support obligation was not purely = factual=20 dispute and declaratory judgment was proper); Hext v. Price, 847 = S.W.2d=20 408, 416 (Tex. App.=97Amarillo 1993, no writ) (holding that = controversy=20 concerning rights under instruments underlying litigation was not = purely=20 factual dispute and declaratory judgment was proper); Chapman v. Marathon Mfg.=20 Co., 590 S.W.2d 549, 552 (Tex. Civ. App.=97Houston [1st = Dist.]=20 1979, no writ) (holding that whether party was justified in = terminating=20 contract was not purely factual dispute and declaratory judgment = was=20 proper). We = overrule this=20 portion of Indian=92s twenty-ninth = issue.

Declaratory=20 Judgment

With = regard to=20 its twenty-ninth issue, Indian further contends that the trial = court=20 abused its discretion in entering a declaratory judgment that=20 Linden and B.J.=92s = construction=20 of the fence was in compliance with the deed = restrictions=20 applicable to Linden=92s property=20 because whether Linden and B.J.=20 complied with the deed restrictions was decided in Indian=92s = claim for=20 injunctive relief.

=93The=20 plaintiff=92s right to take a nonsuit is unqualified and = absolute as=20 long as the defendant has not made a claim for affirmative = relief.=94=20 BHP Petroleum Co. v.=20 Millard, 800=20 S.W.2d 838, 840 (Tex. = 1990); see also Tex. R. Civ. P. = 162. The assertion of a = counterclaim in=20 the form of a declaratory judgment = does not=20 relieve a party of its burden to comply with the requirement that = it=20 assert a claim for affirmative relief. Id. at = 841=20 n.8. =93=91To = qualify as a claim=20 for affirmative relief, a defensive pleading must allege that the=20 defendant has a cause of action, independent of the plaintiff=92s = claim, on=20 which he could recover benefits, compensation or relief, even = though the=20 plaintiff may abandon his cause of action or fail to establish = it.=92=94 Gen.=20 Land Office v. Oxy U.S.A., Inc.,=20 789 S.W.2d 569, 570 (Tex. 1990)=20 (quoting Weaver v. Jock, 717 S.W.2d 654, 657 = (Tex.=20 App.=97Waco 1986, writ ref=92d n.r.e.)). Thus,=20 under Texas Rule of Civil Procedure 162, if a defendant does = nothing more=20 than resist the plaintiff=92s right to recover, the plaintiff has = an=20 absolute right to a non-suit. Millard, 800 S.W.2d at = 841. =93The use of a creative = pleading=20 that merely restates defenses in the form of a declaratory judgment = action=20 cannot deprive the plaintiff of this right.=94 Id. The Declaratory Judgments = Act is not=20 available to settle disputes already pending before a court. Id. In certain instances, = however, a=20 defensive declaratory judgment = may present=20 issues beyond those raised by the plaintiff. Id.

In BHP Petroleum Co. v.=20 Millard, the = plaintiff=20 sued the defendant for breach of the =93take-or-pay=94 = obligations of a=20 gas purchase contract. =20 Id. at = 842. The defendant counterclaimed, = seeking a=20 declaratory judgment =93[t]hat events have occurred which = constitute=20 force majeure, as the parties agreed to define the term, or other = causes=20 not reasonably within the control of ANR and its customers, = which have=20 affected and will continue for the foreseeable future to affect = ANR=92s=20 takes of natural gas under the Contracts . . . .=94 Id. = (alterations=20 in original). The = court held=20 that because the gas purchase contract was an ongoing and = continuing=20 relationship, the defendant=92s counterclaim for a declaratory = judgment was=20 a cause of action on which the defendant could recover benefits,=20 compensation, or relief if the plaintiff abandoned or failed to = establish=20 its causes of action. =20 Id. The defendant=92s = counterclaim=20 sought an interpretation of the gas purchase contract, which would = have=20 the effect of defining the obligations of the parties under that = contract=20 in the future. =20 Id.

In=20 Newman Oil Co. v. Alkek, the plaintiffs sued = the=20 defendants for fraudulent representations, breach of contract, and = violations of the Deceptive Trade Practices = Act. 614 S.W.2d 653, 653 = (Tex. Civ.=20 App.=97Corpus Christi 1981, writ ref=92d n.r.e.). The=20 defendants counterclaimed for declaratory = relief and=20 moved for summary judgment on the basis that they had not = committed fraud,=20 engaged in common law tort or deceptive trade practices, breached = any=20 contracts with the plaintiffs, and were not liable under the = DTPA. Id. at 654=9655. = Even though the = defendants framed=20 the counterclaim in the form of a request for declaratory relief, = the court of=20 appeals held that the allegations pleaded in the defendants=92 = counterclaims=20 were not averments of fact upon which affirmative relief could be=20 granted. = Id.=20 at 655. The = defendants=92=20 counterclaims were merely denials of the plaintiffs=92 causes of=20 action. = Id.=20

Similarly,=20 in John=20 Chezik Buick Co. v. Friendly Chevrolet Co.,=20 the=20 court found that the defendant had improperly brought a declaratory judgment counterclaim because the = issue=20 raised by the defendant=97that no agency relationship = existed=97was already=20 before the court as part of the plaintiff=92s = case. 749 S.W.2d 591, 594 = (Tex.=20 App.=97Dallas 1988, writ denied).

In this = case,=20 Indian=92s first amended original petition seeks injunctive = relief, alleging=20 that Linden and = B.J.=92s=20 construction of the fence was in violation of the deed = restrictions on=20 Linden=92s = property. Linden and B.J.=92s counterclaim for = declaratory=20 relief sought an =93[o]rder declaring them to be in compliance = with the=20 contractual deed restrictions regarding the construction of their=20 fence.=94 The trial = court=92s=20 judgment states:

Although Linden=20 and B.J.=92s counterclaim appears to be nothing more than a denial = of=20 Indian=92s cause of action, because it involves the interpretation = of deed=20 restrictions, Linden and B.J. have stated a cause of action on = which they=20 could recover benefits, compensation, or relief if Indian = abandoned or=20 failed to establish its cause of action. See = Millard, 800 = S.W.2d at=20 842; see also Tex. Civ. Prac. & Rem. = Code=20 Ann. =A7 37.003(a) (=93A court of record within its = jurisdiction has=20 power to declare rights, status, and other legal relations whether = or not=20 further relief is or could be claimed.=94). The deed restrictions on = Linden=92s property = involve an=20 ongoing and continuous relationship with Indian. See Millard, 800 S.W.2d at 842. Linden and B.J.=92s counterclaim = sought an=20 interpretation of the deed restrictions, which would have the = effect of=20 defining the obligations of Linden, B.J., and Indian under those=20 restrictions in the future. =20 See id. Linden and B.J.=92s counterclaim = therefore stated=20 a claim for affirmative relief and was the proper subject of a = declaratory=20 judgment. Compare id. (holding that = defendant=92s=20 counterclaim was claim for affirmative relief and declaratory = judgment was=20 proper), and Georgiades v. Di = Ferrante,=20 871 S.W.2d 878, 880=9681 (Tex. App.=97Houston [14th Dist.] 1994, = writ denied)=20 (same), with Nat=92l Enter., Inc. v. = E.N.E.=20 Props., 167 S.W.3d 39, 43=9644 (Tex. App.=97Waco 2005, no pet.) = (holding that=20 defendant=92s counterclaim was not claim for affirmative relief = and=20 declaratory judgment was improper), Anderson, 122 S.W.3d at = 391=20 (same), Howell v. Mauzy, = 899 S.W.2d=20 690, 706=9607 (Tex. App.=97Austin 1994, writ denied) (same), and HECI=20 Exploration Co. v. Clajon Gas Co., 843=20 S.W.2d 622, 639 (Tex. App.=97Austin 1992, writ denied)=20 (same). We overrule this portion = of=20 Indian=92s twenty-ninth issue.

Comment=20 on the Evidence

=20 In its sixteenth, twenty-first, and twenty-seventh issues, = Indian=20 contends the trial court (16) erred in submitting question number = four to=20 the jury because it is an improper comment on the weight of the = evidence,=20 it does not give proper guidance, and it is confusing and = misleading, (21)=20 erred in submitting question five to the jury because it does not = give=20 proper guidance, and (27) erred in submitting question six to the = jury=20 because it is an improper comment on the weight of the evidence, = it does=20 not give proper guidance, and it is confusing and misleading. Questions four,=20 five, and six formed the basis of the declaratory judgment in this = case,=20 and the trial court phrased the questions as follows:

QUESTION = 4

=20 Do you find that the deed restrictions applicable to = Defendants=92=20 lot contained a restriction concerning the use of chain link = fencing as a=20 fence material?

QUESTION = 5

=20 Do you find that Defendants=92 [sic] violated the = applicable deed=20 restrictions in constructing the fence on their = lot?

QUESTION = 6

=20 Do you find that the use of chain link fencing by = Defendants=92 [sic]=20 was in harmony with existing structures in the=20 subdivision?

Improper=20 Comment

An=20 appellate court reviews allegations of error in the jury charge = under an=20 abuse of discretion standard. =20 Tex. R. Civ. = P. 277;=20 Howell Crude Oil Co. v. Donna Refinery Partners, 928 S.W.2d = 100,=20 110 (Tex. App.=97Houston [14th Dist.] 1996, writ denied) (holding = trial=20 court has wide discretion in submitting jury questions as well as=20 instructions and definitions); European Crossroads=92 Shopping = Ctr., Ltd.=20 v. Criswell, 910 S.W.2d 45, 54 (Tex. App.=97Dallas 1995, writ=20 denied). Texas Rule of Civil = Procedure 277=20 provides:

The court shall not in its = charge=20 comment directly on the weight of the evidence or advise the jury = of the=20 effect of their answers, but the court=92s charge shall not be = objectionable=20 on the ground that it incidentally constitutes a comment on the = weight of=20 the evidence or advises the jury of the effect of their answers = when it is=20 properly a part of an instruction or = definition.

Tex.=20 R. Civ. P. = 277. =93To be a direct comment=20 on the weight of the evidence,=20 the issue submitted must suggest to the jury the trial court=92s = opinion on=20 the matter.=94 H.E. Butt Grocery Co. v.=20 Bilotto, 985 S.W.2d 22, 24 (Tex. 1998); Southmark Mgmt. Corp. v.=20 Vick, 692 S.W.2d 157, 160 (Tex. App.=97Houston [1st = Dist.] 1985,=20 writ ref=92d n.r.e.). =20 Furthermore, to warrant reversal, a comment on the weight = of the=20 evidence must be one that probably caused the rendition of an = improper=20 judgment. Tex. R. App. P.=20 44.1(a)(1).

Questions four,=20 five, and six do not constitute comments on the weight of the evidence because they = do not=20 suggest the trial court=92s opinions on these matters to the = jury. See Bilotto, 985 = S.W.2d at 24;=20 Williams v. = Viswanathan, 64=20 S.W.3d 624, 630 (Tex. = App.=97Amarillo 2001, no pet.); Vick, 692 S.W.2d = at=20 160. Each question = is worded=20 in a simple manner and asks the jury to decide a unique factual=20 dispute. In = addition, Indian=20 has failed to demonstrate that the wording of these questions = probably=20 caused the rendition of an improper judgment. See Tex. R. App. P. = 44.1(a)(1).

=20 Misleading and=20 Confusing

=93Generally,=20 error in the submission of an issue is harmless when the findings = of the=20 jury in answers to other issues are sufficient to support the=20 judgment.=94 = Boatland of=20 Houston, Inc. v. Bailey, 609 S.W.2d 743, 750 = (Tex. 1980). An exception exists, = however, when=20 the erroneously submitted issue confuses or = misleads the jury. Id. Whether = a party=20 suffers harm may be considered in light of the charge as a = whole. Id.

Indian = bases its=20 contentions on the improper assumption that the only way = Linden and B.J. could have complied = with the=20 deed restrictions on Linden=92s=20 property was to obtain the written approval of the Architectural = Control=20 Committee before building the fence. =20 Indian then contends that questions four and six mislead = the jury=20 because they suggest that the word =93chain-link=94 must appear in = the deed=20 restrictions before the use of chain-link fencing can be = prohibited, and=20 they suggest that the =93harmony=94 factor is the only relevant = factor the=20 Architectural Control Committee considers when deciding whether to = approve=20 a fencing material. = The=20 deed restrictions provide that, =93[i]n the event the = Committee=20 fails to approve or disapprove the plans within forty-five (45) = days after=20 same have been submitted to it, approval will be presumed and this = paragraph will be deemed to have been fully complied with.=94 The jury therefore did = not have to=20 believe that the deed restrictions must expressly prohibit = chain-link=20 fencing, or that the harmony factor is the only factor considered = by the=20 Architectural Control Committee, before it could validly find that = Linden and B.J. did = not violate=20 the applicable deed restrictions in constructing the fence without = the=20 written approval of the Committee. =20 Questions four, five, and six are not confusing or = misleading.=20 See Bailey,=20 609 S.W.2d at 750; City of San Antonio v.=20 Rodriguez, 856=20 S.W.2d 552, 558 (Tex. App.=97San Antonio 1993, writ denied); Hedley Feedlot, Inc. v. = Weatherly=20 Trust, 855=20 S.W.2d 826, 842 (Tex. App.=97Amarillo 1993, writ denied); Denman v. = Burris, 815 S.W.2d 793, = 796=9697 (Tex.=20 App.=97El Paso 1991, writ denied).

Improper=20 Guidance

The=20 Texas Supreme Court has emphasized that it is =93fundamental to = our system=20 of justice that parties have the right to be judged by a jury = properly=20 instructed in the law.=94 Crown Life Ins. Co. v. = Casteel, 22 = S.W.3d=20 378, 388 (Tex. = 2000). Indian=92s brief to this = court,=20 however, fails to explain the manner in which the trial court = failed to=20 give the jury the proper guidance on the law in questions four, = five, and=20 six. See Tex. R. App. P. = 38.1(h). Indian has also failed = to=20 demonstrate that the submission of these questions as worded = caused the=20 rendition of an improper judgment. =20 See Tex. R. App. P.=20 44.1(a)(1). We overrule Indian=92s = sixteenth,=20 twenty-first,=20 and twenty-seventh issues.

Question of=20 Law

=20 In its twentieth issue, Indian contends the trial court = erred in=20 submitting question number five to the jury because it requires = the jury=20 to make a legal conclusion about the applicable deed restrictions. = Question five asked the = jury=20 whether Linden and = B.J.=20 violated the applicable deed restrictions in constructing the = fence on=20 Linden=92s=20 property.

An=20 appellate court reviews allegations of error in the jury charge = under an=20 abuse of discretion standard. =20 Howell Crude Oil Co., 928 S.W.2d at 110 (explaining = that=20 trial court has wide discretion in submitting jury questions as = well as=20 instructions and definitions); Criswell, 910 S.W.2d at=20 54. However,=20 =93review of a trial court=92s determination of the legal = principles=20 controlling its ruling is much less deferential,=94 since =93a = trial court has=20 no =91discretion=92 in determining what the law is or applying the = law to the=20 facts.=94 = Walker v. Packer, 827 S.W.2d 833, 840 = (Tex. 1992). Consequently, =93a clear = failure by=20 the trial court to analyze or apply the law correctly will = constitute an=20 abuse of discretion.=94 =20 Id. Furthermore,=20 a trial court commits error if it submits a question of law to the = jury. See Knutson v. = Ripson, 163 Tex. 312, 314, 354 S.W.2d 575, 576=20 (1962); Hudson Buick, Pontiac, GMC = Truck Co. v.=20 Gooch, 7 S.W.3d 191, 195 (Tex. App.=97Tyler 1999, pet. = denied);=20 Markert v. = Williams, 874=20 S.W.2d 353, 356 (Tex. App.=97Houston [1st Dist.] 1994, writ = denied) (=93A jury=20 may not be called upon to construe the legal effect of an=20 instrument.=94). = Absent=20 a showing of extraneous prejudice, however, such error is = harmless. Med. Towers, Ltd. v. = St. Luke=92s=20 Episcopal Hosp., 750=20 S.W.2d 820, 826 (Tex. App.=97Houston [14th Dist.] 1988, writ = denied). Error in the jury charge = is=20 reversible if, viewed in light of all of the circumstances, it = amounts to=20 such a denial of the rights of the complaining party as was = probably=20 calculated to cause and probably did cause the rendition of an improper = judgment. Tex. R. App. P.=20 44.1(a)(1); = Quantum=20 Chem. Corp. v. Toennies,=20 47 S.W.3d 473, 480 (Tex.=20 2001). Absent a = showing of=20 extraneous prejudice, submission of a question of law to the jury = is=20 generally harmless since no harm results if it is answered as the = trial=20 court should have answered it, or it can be deemed immaterial and=20 disregarded by the trial court if answered incorrectly. Tex. R. App. P. = 44.1(a)(1);=20 Spencer v. Eagle Star Ins. Co. of Am., 876 S.W.2d 154, 157 = (Tex.=20 1994) (=93A question which calls for a finding = beyond the=20 province of the jury, such as a question of law, may be deemed=20 immaterial.=94);=20 Med. Towers, 750=20 S.W.2d at 826.

The=20 construction of an unambiguous deed is a question of law for = the=20 court. = J.=20 Hiram Moore, Ltd. v. Greer, 172 = S.W.3d 609,=20 613 (Tex. 2005); = Luckel=20 v. White,=20 819 S.W.2d 459, 461 (Tex.=20 1991). An = unambiguous deed is=20 one that can be given a definite or certain legal meaning. Stewart Title Guar. = Co. v.=20 Aiello, 941 = S.W.2d=20 68, 74 (Tex.=20 1997). = Where=20 neither party asserts that a deed is = ambiguous, its=20 construction is purely a question of law and not of fact. = Templeton v. = Dreiss, 961=20 S.W.2d 645, 657 n.14 (Tex. App.=97San Antonio 1998, pet. denied). = =93The inquiry becomes a = mixed question of law and=20 fact=20 only where the words contained in the instrument are = ambiguous.=94 Id. When a deed is = unambiguous, whether=20 a party has breached a deed restriction is a question of law for = the court=20 and not a question of fact for the jury. See Aguiar v. Segal, = 167 S.W.3d=20 443, 450 (Tex. App.=97Houston=20 [14th Dist.] 2005, pet. denied); Bank One, Tex., N.A. v. Stewart, 967 = S.W.2d=20 419, 432 (Tex. App.=97Houston=20 [14th Dist.] 1998, pet. denied); Meek=20 v. Bishop Peterson & Sharp, P.C.,=20 919 S.W.2d 805, 808 (Tex. App.=97Houston [14th Dist.] 1996, writ=20 denied).

Question=20 number five presents a question of law because the deed = restrictions in=20 this case are unambiguous. = See Aiello, 941 S.W.2d at=20 74. The=20 trial court therefore erred in submitting this question to the = jury. See Aguiar, 167 S.W.3d = at 450;=20 Stewart, 967 = S.W.2d at 432;=20 Meek,=20 919 S.W.2d at 808. = In its=20 appellate brief, however, Indian does not address the requirement = that=20 extraneous prejudice must be shown to demonstrate that an error in = submitting a question of law to the jury is harmful, and, = consequently,=20 makes no effort to demonstrate extraneous prejudice. Absent a showing of = extraneous=20 prejudice, submission of a question of law to the jury is = generally=20 harmless because no harm results if it is answered as the trial = court=20 should have answered it, or it can be deemed immaterial and = disregarded by=20 the trial court if answered incorrectly. Med. = Towers, 750 S.W.2d at = 826. Because Indian has = failed to=20 demonstrate extraneous prejudice stemming from the erroneous = submission of=20 question five to the jury, we hold that the trial court=92s error = was=20 harmless. See Tex. R. App. P. = 44.1(a)(1). The jury answered = question five in=20 the same manner as the trial court should have answered it. We overrule Indian=92s = twentieth=20 issue.

Attorney=92s=20 Fees

=20 In its thirty-first, thirty-second, thirty-third, = thirty-fourth,=20 and thirty-fifth issues, Indian contends there is no legal basis = to=20 support the trial court=92s award of attorney=92s fees to Linden = and B.J., and=20 that the award of attorney=92s fees is not equitable and=20 just.

Generally, = attorney=92s fees are=20 not recoverable in Texas unless=20 allowed by contract or by statute. =20 Dallas=20 Cent. Appraisal Dist. v. Seven Inv. Co.,=20 835 S.W.2d 75, 77 (Tex. 1992);=20 London v. = London, 94 S.W.3d 139, 151=9652 (Tex. App.=97Houston [14th Dist.] 2002, no pet.) = (Fowler,=20 J., concurring). = Whether=20 attorney=92s fees are available under a particular statute is a = question of=20 law, which we review de novo. =20 See Holland = v.=20 Wal-Mart Stores, Inc., 1 S.W.3d 91, 94=20 (Tex. 1999); BASF Fina Petrochems., L.P. = v. H.B.=20 Zachry Co., 168 S.W.3d 867, 871 (Tex. App.=97Houston [1st Dist.] 2004, pet.=20 denied). =20 Consequently, the jury=92s finding on the amount of reasonable = attorney=92s=20 fees is immaterial to the ultimate legal issue of whether such = fees are=20 recoverable. = Holland, 1 S.W.3d=20 at 94.

The=20 Declaratory Judgments Act allows a trial court to award reasonable = and=20 necessary attorney=92s fees as are equitable and just. See Tex. Civ. Prac. & Rem. = Code Ann.=20 =A7 37.009 (Vernon=20 1997). The Act = =93entrusts=20 attorney fee awards to the trial court=92s sound discretion, = subject to the=20 requirements that any fees awarded be reasonable and necessary, = which are=20 matters of fact, and to the additional requirements that fees be = equitable=20 and just, which are matters of law.=94 =20 Bocquet v. Herring, 972 S.W.2d 19, 21=20 (Tex. 1998). =93Unreasonable fees = cannot be=20 awarded [under the Act], even if the court believed them just, but = the=20 court may conclude that it is not equitable or just to award even=20 reasonable and necessary fees.=94 =20 Id.=20 A=20 party need not prevail to be awarded attorney=92s fees under the = Declaratory=20 Judgments Act. =20 Gennedy, 125 = S.W.3d at 701;=20 Hunt=20 v. Baldwin,=20 68 S.W.3d 117, 135 (Tex.=20 App.=97Houston [14th = Dist.] 2001,=20 no pet.). =

An=20 award of attorney=92s fees under the Declaratory Judgments Act is = reviewed=20 for abuse of discretion. Bocquet, 972 S.W.2d at = 21. A trial court does not = abuse its=20 discretion if some evidence reasonably supports its decision. Butnaru v. Ford Motor = Co., 84 = S.W.3d 198,=20 211 (Tex.=20 2002). To=20 find an abuse of discretion, the trial court must have acted = without=20 reference to any guiding rules or principles, such that the act = was=20 arbitrary or unreasonable. = Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, = 241=9642=20 (Tex.=20 1985).

At = trial,=20 Linden and B.J. = sought and=20 obtained a valid declaratory judgment = stating:

See Tex. Civ. Prac. & Rem. = Code=20 Ann. =A7 37.003(a). = We have=20 found no valid grounds in this appeal upon which to reverse this=20 declaratory judgment. = The=20 Declaratory Judgments Act therefore provides a valid basis to = support the=20 trial court=92s award of attorney=92s fees to Linden and B.J. See=20 id. =A7 37.009. We also hold that the = trial=20 court=92s award of attorney=92s fees in this case was equitable = and=20 just. = The trial=20 court therefore did not abuse its discretion in awarding = attorney=92s fees=20 to Linden and B.J.[1] Robinson v. Budget Rent-A-Car = Sys.,=20 Inc., 51 S.W.3d 425, 433 (Tex. App.=97Houston [1st Dist.] 2001, pet. = denied)=20 (affirming denial of attorney=92s fees under Declaratory Judgments = Act); Tanglewood Homes Ass=92n, = Inc. v.=20 Henke, 728 S.W.2d 39, 45 (Tex. App.=97Houston [1st Dist.] 1987, writ = ref=92d n.r.e.)=20 (affirming award of attorney=92s fees under Declaratory Judgments = Act); Intertex, Inc. v. = Cowden,=20 728 S.W.2d 813, 819=9620 (Tex. App.=97Houston [1st Dist.] 1986, no = writ)=20 (affirming award of attorney=92s fees under Declaratory Judgments = Act). We overrule Indian=92s = thirty-first, = thirty-second,=20 thirty-third, thirty-fourth, and thirty-fifth=20 issues.

Conclusion

We hold that the = trial court=20 did not abuse its discretion in refusing to grant a permanent = injunction=20 in favor of Indian, the=20 evidence is legally and factually sufficient to support the = jury=92s finding=20 that Linden and B.J.=92s construction of the fence was not a = wrongful=20 act,=20 the evidence is = legally=20 and factually sufficient to support the jury=92s finding that = Linden and=20 B.J.=92s construction of the fence did not violate any applicable = deed=20 restrictions on Linden=92s property, there is no conflict in the = jury=92s=20 answers to the charge questions, the = trial=20 court properly denied Indian=92s request for attorney=92s = fees, the trial court had jurisdiction to enter = the=20 declaratory judgment, the = trial court=92s=20 declaratory judgment that Linden and B.J.=92s construction of the = fence was=20 in compliance with the deed restrictions applicable to = Linden=92s=20 property=20 was proper, charge questions=20 four, five, and six do not constitute comments on the weight of the evidence, nor are they = confusing or=20 misleading, and the = trial court=20 did not abuse its discretion in awarding attorney=92s fees to = Linden and=20 B.J.

The trial court erred = in=20 entering a declaratory judgment stating that the deed restrictions = applicable to Linden=92s property=20 do not prohibit the use of chain-link fence as a fencing material, = and=20 stating that the use of chain-link fencing on Linden=92s property is in harmony = with the=20 existing structures in the Indian Beach = subdivision.

We therefore modify = the trial=20 court=92s judgment and delete paragraphs one and two. We affirm the remainder = of the=20 trial court=92s judgment.

&nbs= p; = ; = &= nbsp; =20 Jane=20 Bland

&nbs= p; = ; = &= nbsp; =20 Justice

Panel consists of = Chief Justice=20 Radack and Justices Jennings and Bland.