November 8, 2016



### JUDGMENT


## The Fourteenth Court of Appeals

HOUSTON LAUREATE ASS OCIATES, LTD. , Appellant

NO. 14

- 15

- 00491

- CV V.

MAROLYN RUSSELL, JOE L GOFFMAN, M.D., AND PARK LAUREATE

PLACE HOMEOWNERS ’ ASSOCIATION , Appellee s

________________________________ This cause, an appeal by defendant Houston Laureate Associates, Ltd. (“Houston Laureate”) from the amended final judgment and permanent injunction signed May 13, 2015 in favor of plaintiff Marolyn Russell and intervenors Joel Goffman and Park Laureate Plac e Homeowners ’ Association (“the Association”)

, was heard on the transcript of the record. We have inspected the record and find error in the judgment.

W e hold that the trial court erred in (a) rul ing on the question, not presented
in a summary

-

judgment motion, of whether the indemnification provision found in section 3.2 of the Recreational Easement Agreement authorizes Houston Laureate to charge the appellees for the attorney’s fees and court costs Houston Laureate incurred in this case in defending ag ainst claims for monetary damages; (b) granting summary judgment on the question of whether the operation

- expenses provision found in section 2.3 of the Recreational Easement Agreement authorizes Houston Laureate to charge the appellees for a portion of th e attorney’s fees Houston Laureate incurred in this case; and (c) permanently enjoining Houston Laureate from interfering with an appellee’s rights to use and enjoyment of the Recreational Easement Agreement or of the Recreational Land

.We therefore REFORM the judgment to replace the trial court’s list of the

permanent injuncti ve relief with the following:

Plaintiff Marolyn Russell and Intervenors Joel Goffman and Park Laureate Place Homeowners ’ Association (collectively, “the Residents”) are entitled to a permanent injunction against Defendant Houston Laureate Associates, Ltd

. (“Houston Laureate”) on their claims for breach of contract. It is, therefore, ORDERED that Defendant Houston Laureate Associates, along with its officers, agents, partners, employees, and all others with whom they are in privity, be and hereby are permanently enjoined from:

 Limiting the Residents’ use of the Park Laureate Grounds covered by the Recreational Easement Agreement (“REA”) to asphalt paths;

 Imposing any c harge, directly or indirectly, on the Residents for using a personal trainer at the Park Laureate exercise facility, or on such a trainer employed by a Resident ;

 Seeking indemnity under s ection 3.2 of the R EA for attorney’s fees and court costs Houston La ureate has incurred in this proceeding in defending against the Residents’ requests for injunctive relief;

 Otherwise imposing any charge on the Residents, or seeking indemnity from the Residents, for attorney’s fees and court costs
that Houston Laureate ha s incurred in this proceeding and that
Houston Laureate has waived its contractual right, if any, to

recover;

 Suspending or purporting to suspend a Resident’s rights under the REA based on a purported failure or refusal to pay an amount due under the REA when the amount is disputed and there has been no judicial determination that the amount is owed; and

 Threatening criminal prosecution of a Resident , for tres pass or otherwise, based on a purported suspension of rights under the
REA.

We order the judgment of the court below AFFIRMED except as modified in this judgment.We order appellant Houston Laureate Associates, L td . to pay all costs

incurred in this appeal.

We further order this decision certified below for observance.