Affirmed as Modified and Opinion filed November 8, 2016.

In The

Fourteenth Court of Appeals

NO. 14-15-00491-CV

HOUSTON LAUREATE ASSOCIATES, LTD., Appellant

V.

MAROLYN RUSSELL, JOEL GOFFMAN, M.D., AND PARK LAUREATE 

PLACE HOMEOWNERS’ ASSOCIATION, Appellees

On Appeal from the 11th District Court

Harris County, Texas

Trial Court Cause No. 2013-34999

O P I N I O N

In this suit for breach of an easement agreement, defendant landowner 

Houston Laureate Associates, Ltd. (“Houston Laureate”) appeals from the 

judgment and permanent injunction rendered in favor of neighboring homeowners 

Marolyn Russell and Joel Goffman and Park Laureate Place Homeowners’ 

Association (“the Association”). Houston Laureate asserts that Russell and 

Goffman lack standing to pursue their claims; contends that the trial court erred in 
2

granting three motions for partial summary judgment and in denying a motion for 

new trial; and challenges each of the six categories of acts that the trial court 

permanently enjoined it from performing. Although we conclude that the trial 

court ruled correctly in most of the challenged instances, we hold that a partial 

summary judgment on the question of attorney’s fees was overly broad and that 

one category of injunctive relief is too vague to be enforceable. We accordingly 

reform the judgment and permanent injunction to remedy these errors, and affirm 

the judgment as modified. 

I. BACKGROUND

Houston Laureate owns an office building and some of the surrounding land. 

Houston Laureate’s neighbor is residential development Park Laureate Place (“the 

Residential Land”). When the Residential Land was being developed, its thenowner Laureate Associates, Ltd. (“the Residential Landowner”) entered into a 

Recreational Easement Agreement (“the Agreement”) with Houston Laureate. In 

the Agreement, Houston Laureate granted the Residential Landowner a permanent, 

nonexclusive easement to use part of Houston Laureate’s land for recreational 

purposes. The Agreement refers to this part of Houston Laureate’s property as 

“the Recreational Land,” and it includes an exercise facility and a green belt 

traversed by asphalt walking paths. 

The Agreement also mandated that, before any of the individual lots of the 

Residential Land were sold, the Residential Landowner had to establish a 

homeowners’ association and assign to it the Residential Landowner’s rights under 

the Agreement. The Residential Landowner did establish the Association and 

assign its rights in the Agreement to it, and homes built on the Residential Land 

were purchased by homeowners Marolyn Russell and Dr. Joel Goffman. We refer 

to Russell, Goffman, and the Association collectively as “the Residents.” 
3

Disputes arose between Houston Laureate and the Residents concerning the

use of the Recreational Land. Russell sued Houston Laureate and sought 

injunctive relief; Goffman and the Association intervened and asserted further 

claims against Houston Laureate.1 In particular, the Residents alleged that 

Houston Laureate violated the Agreement by (a) charging a licensing fee to 

independent fitness instructors hired by individual homeowners to supervise their 

personal exercise programs, and (b) enacting a rule requiring anyone using the 

Recreational Land to remain on the asphalt walking paths at all times. 

During the course of the litigation, Houston Laureate began charging its 

attorney’s fees to the Association and requiring the Association to collect the fees 

from the homeowners. When the Association refused to do so, Houston Laureate 

suspended the homeowners’ rights to use the Recreational Land and informed the 

Association that if any homeowner used the Recreational Land, Houston Laureate 

would contact the authorities and report the homeowner as a trespasser. The 

Residents responded by seeking injunctive relief regarding these matters as well. 

Houston Laureate requested a jury trial on all of these contested issues.

The trial court issued a temporary injunction to return the parties to the 

status quo; denied Houston Laureate’s motion for partial summary judgment 

challenging Russell’s and Goffman’s standing; and granted the Residents partial 

summary judgments on their claims challenging the licensing fees, the asphalt-path 

rule, and the imposition of attorney’s fees. After an evidentiary hearing, the trial 

court extended the temporary injunction, and the parties moved for entry of 

judgment and permanent injunction so they could proceed with this appeal of those 

rulings and of the underlying partial summary-judgment rulings. The trial court 

 

1 Under the terms of the parties’ Rule 11 agreement, any relief granted to a Resident by 

the trial court is treated as though the relief were requested by, and granted to, all of the 

Residents. We follow the same convention where it is possible to do so.
4

rendered a final judgment that incorporated its prior rulings and included a 

permanent injunction.

II. ISSUES PRESENTED

In six issues, Houston Laureate argues that the trial court erred in

 denying Houston Laureate’s motion for partial summary judgment on its 

asserted ground that Russell and Goffman lack standing to assert their 

claims;

 granting the Residents’ motion for partial summary judgment on their claim 

that Houston Laureate breached the Agreement by charging independent 

fitness instructors retained by the homeowners a licensing fee for the use of 

the Recreational Land’s exercise facility;

 granting the Residents partial summary judgment on their claim that 

Houston Laureate breached the Agreement by requiring anyone using the 

Recreational Land to remain on the asphalt paths at all times;

 granting the Residents partial summary judgment holding that the 

Agreement’s indemnification provision does not authorize Houston Laureate 

to charge the attorney’s fees it incurred in this litigation to the Association;

 granting the Residents partial summary judgment holding that the 

Agreement’s “operation expenses” provision does not authorize Houston 

Laureate to charge a portion of the attorney’s fees it incurred in this 

litigation to the Association; and

 granting the Residents final permanent injunctive relief that, according to 

Houston Laureate, (a) relied on erroneous summary-judgment rulings,
5

(b) deprived Houston Laureate of its right to a jury trial, and (c) granted 

nonspecific relief that the Residents neither requested nor proved.

III. PARTIAL SUMMARY JUDGMENTS

A movant for traditional summary judgment has the burden of showing that 

there is no genuine issue of material fact and that it is entitled to judgment as a 

matter of law. TEX. R. CIV. P. 166a(c); Mann Frankfort Stein & Lipp Advisors, 

Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). If the movant establishes each 

element of the claim or defense for which it seeks traditional summary judgment, 

then the burden shifts to the nonmovant to disprove or raise a genuine issue of 

material fact regarding at least one of those elements. See Katy Venture, Ltd. v. 

Cremona Bistro Corp., 469 S.W.3d 160, 163 (Tex. 2015) (per curiam). In 

analyzing an appeal from a traditional summary judgment, we review the evidence 

presented by the motion and response in the light most favorable to the nonmovant, crediting evidence favorable to the non-movant if reasonable jurors could, 

and disregarding contrary evidence unless reasonable jurors could not. See

Gonzalez v. Ramirez, 463 S.W.3d 499, 504 (Tex. 2015) (per curiam); Mack Trucks, 

Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006). 

The summary-judgment motions before us turn on questions of contract 

interpretation. When reviewing a contract, our goal is to determine the parties’ 

true intentions as expressed in the instrument. See Coker v. Coker, 650 S.W.2d 

391, 393 (Tex. 1983). We do not read any provision in isolation, but consider each 

provision with reference to the whole. See id. If the contract’s language can be

given a definite legal meaning or interpretation, then it is not ambiguous and we 

will construe the contract as a matter of law. See El Paso Field Servs., L.P. v. 

MasTec N. Am., Inc., 389 S.W.3d 802, 806 (Tex. 2012) (citing Italian Cowboy 

Partners, Ltd. v. Prudential Ins. Co. of Am., 341 S.W.3d 323, 333 (Tex. 2011)). A 
6

contract is ambiguous if, after applying the principles of contract construction, it is 

subject to more than one reasonable interpretation. See Plains Expl. & Prod. Co. v. 

Torch Energy Advisors Inc., 473 S.W.3d 296, 305 (Tex. 2015). An ambiguous 

contract will not support summary judgment because it creates a question of fact 

about the parties’ intent. See id.

A. Houston Laureate Challenges Russell’s and Goffman’s Standing and 

Capacity.

In a threshold issue, Houston Laureate contends that Russell and Goffman 

lacked standing to assert their claims. Although the terms often are used 

imprecisely, the question of whether a party has “standing” to assert a claim is 

distinct from whether the party has the “capacity” to do so. See Vernco Constr., 

Inc. v. Nelson, 460 S.W.3d 145, 149 n.1 (Tex. 2015) (per curiam). “A plaintiff has 

standing when it is personally aggrieved, regardless of whether it is acting with 

legal authority; a party has capacity when it has the legal authority to act, 

regardless of whether it has a justiciable interest in the controversy.” Nootsie, Ltd. 

v. Williamson Cty. Appraisal Dist., 925 S.W.2d 659, 661 (Tex. 1996). Because 

standing is a component of subject-matter jurisdiction, it cannot be waived or 

conferred by agreement. See Bierwirth v. AH4R I TX, LLC, No. 01-13-00459-CV, 

2014 WL 5500487, at *2 (Tex. App.—Houston [1st Dist.] Oct. 30, 2014, no pet.)

(mem. op.). 

Because one of Houston Laureate’s standing arguments is instead a 

challenge to capacity, we discuss the two arguments separately. First, however, we 

must address the Residents’ assertion that this issue is moot.

1. Houston Laureate’s challenges to Russell’s and Goffman’s standing 

and capacity are not moot.

According to the Residents, Houston Laureate’s challenge to Russell’s and 

Goffman’s standing has been rendered moot by the parties’ Rule 11 agreement. 
7

See TEX. R. CIV. P. 11. In that document, the parties agreed that “any remedy 

granted in the orders signed by the trial court in the above-referenced matter will 

be considered to grant relief to each and every Plaintiff as if that Plaintiff 

independently had sought such relief.”2 This language does not moot Houston 

Laureate’s standing and capacity arguments, because Houston Laureate agreed 

only that it would proceed as though Russell, Goffman, and the Association each 

successfully sought the same relief. Houston Laureate did not agree that each of its 

three adversaries possessed the standing and capacity to do so. We therefore will 

address the merits of those complaints.

2. Russell and Goffman have standing to pursue their claims.

Houston Laureate argues that Russell and Goffman cannot be personally 

aggrieved by its actions because “the right to use the Recreational Easement is now 

held by the Association—not the individual lot owners.” See Nootsie, Ltd., 925 

S.W.2d at 659. After reviewing the question of standing de novo,

3 we disagree. 

Section 1.1 of the Agreement states that the easement is being conveyed “for 

Recreational Purposes for the benefit of the Residential Land and for the use and 

benefit of the Residential Landowner.” Thus, the easement exists not only to 

benefit the Residential Landowner, but also to benefit the Residential Land. As the 

name indicates, the “Residential Land” includes each individual lot on which a 

home was built.

Section 14.1 fulfills this stated purpose by providing that individual 

homeowners acquire “all rights under this Agreement” as part of the transfer of 

title to an individual lot: 

 

2 Although Russell was the only “plaintiff,” the parties frequently applied the term not 

only to Russell but also to each intervenor.

3

See State v. Naylor, 466 S.W.3d 783, 787 (Tex. 2015).
8

Any transferee of any part of the Office Building Land or the 

Residential Land shall automatically be deemed, by acceptance of the 

title to any portion of the Office Building Land or the Residential 

Land, to have succeeded to all rights under this Agreement and 

assumed all obligations under this Agreement relating thereto to the 

extent of such transferee’s interest in the Office Building Land or the 

Residential Land, as the case may be . . . .

This is confirmed by section 5.1 of the Agreement, which provides that if the 

owner of a residential lot fails to pay amounts due under the Agreement, then 

Houston Laureate may suspend “the lot owner’s (and its tenants and invitees) 

rights hereunder.” If the Agreement conveyed no rights to the homeowners, then 

there would be no “rights hereunder” to suspend, and sections 5.1 and 14.1 would 

be meaningless. See City of Keller v. Wilson, 168 S.W.3d 802, 811 (Tex. 2005) 

(“[R]eviewing courts must construe contracts as a whole; we do not consider only 

the parts favoring one party and disregard the remainder, as that would render the 

latter meaningless.”). 

In arguing that Russell and Goffman lack standing, Houston Laureate does 

not address any of these provisions, but instead relies on two other provisions

concerning the assignment of the Residential Landowner’s contractual rights and 

benefits. Section 8.1 required the Residential Landowner to assign its contractual 

rights to the Association, and section 12.1 permitted the Residential Landowner to 

assign its rights and benefits only to the Association or to a purchaser of the 

entirety of the Residential Land. But as we have just seen, the individual 

homeowners “succeeded” to the rights of the Residential Landowner and the 

Association without the need for an “assignment.” See id. 

We conclude that the Agreement confers upon the homeowners the 

contractual right to use the easement for recreational purposes. Because Russell 

and Goffman each possessed such a contractual right, each was personally 
9

aggrieved by its actual or threatened violation, and thus, each had standing to sue 

for redress.

3. Russell and Goffman have the capacity to pursue their claims.

Houston Laureate also argues that only the Association, through its president 

as the Association’s “Designated Representative,” has standing to bring an action 

under the Agreement. This argument really is about capacity. See, e.g., Highland 

Credit Opportunities CDO, L.P. v. UBS AG, 451 S.W.3d 508, 515–16 (Tex. 

App.—Dallas 2014, no pet.) (stating that whether an individual is entitled to sue on 

a contract is a question of capacity, not of standing); Rutledge v. Leonard, No. 10-

07-00376-CV, 2009 WL 1412859, at *2 (Tex. App.—Waco May 20, 2009, no pet.) 

(mem. op.) (stating that an attorney’s ability to sue a client for breach of the

contract between the client and the attorney’s professional limited liability 

company was a question of capacity). We may address the issue despite the 

misnomer. See Coastal Liquids Transp., L.P. v. Harris Cty. Appraisal Dist., 46 

S.W.3d 880, 884 (Tex. 2001).

Section 14.8 expressly authorizes individual homeowners to enforce the 

Agreement through injunctive relief:

14.8 Cumulative Remedies. Except as otherwise provided herein, all 

rights and remedies of the parties’ hereto set forth in this Agreement 

are cumulative and shall be deemed to be in addition to any and all 

other rights and remedies to which such party may be entitled at law 

or in equity . . . . In the event of any violation or attempted or 

threatened violation of the provisions of this Agreement or any 

interference or attempted or threatened interference with the rights 

herein granted, the provisions of this Agreement may be enforced by 

any owner or Mortgagee of any portion of the Office Building Land or 

the Residential Land by restraining orders or injunctions (temporary 

or permanent) commanding compliance with the terms hereof . . . .

4

 

4

Emphasis added.
10

Because this provision authorizes individual lot owners to enforce their contractual 

rights, Russell and Goffman have the capacity to do so. 

As support for its position that only the Association’s Designated 

Representative is permitted to sue on the contract, Houston Laureate relies on 

section 13.2 of the Agreement:

13.2 Multiple Owners. In no event shall the owners of all or a portion 

of the Residential Land be entitled to act or enforce their rights in any 

way other than through the Designated Representative appointed for 

the Residential Land; the Office Building Owner shall be obligated to 

deal only with such Designated Representative as to any matters 

pertaining to this Agreement. . . . 

Section 13.2, however, must be read in light of Section 13.1, which 

addresses the purpose of a Designated Representative and what it means to “deal 

with” that person. See Fort Worth Indep. Sch. Dist. v. City of Fort Worth, 22 

S.W.3d 831, 842 (Tex. 2000) (“To determine the parties’ intent, we must look at 

the arrangement as a whole.”); Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132, 134 

(Tex. 1994) (sub. op.) (discussing the “long-established rule that ‘[n]o one phrase, 

sentence, or section [of a contract] should be isolated from its setting and 

considered apart from the other provisions’” (quoting Guardian Trust Co. v. 

Bauereisen, 132 Tex. 396, 121 S.W.2d 579, 583 (1938))) (alterations in original). 

Section 13.1 provides as follows:

13.1 Designated Representatives. [Houston Laureate] and the

Residential Landowner shall each designate one representative for 

purposes of receiving notices and communications in connection with 

this Agreement. . . . The parties hereto shall be obligated to deal only 

with the Designated Representative to facilitate the purposes of this 

Agreement. Each party hereto shall be entitled to rely upon any 

decision, notice or communication provided from or given to such 

Designated Representative. . . . [Houston Laureate] and the

Residential Landowner hereby appoint their respective Designated 

Representatives as their true and lawful attorney in fact with the full 
11

power and authority to do and take all such actions as are required or 

authorized to be taken under the terms of this Agreement by such 

party appointing such Designated Representative.5

To “facilitate” means to “make (an action or process) easy or easier.” NEW 

OXFORD AMERICAN DICTIONARY 619 (Angus Stevenson & Christine Lindberg eds., 

3d ed. 2010). And in this context, to “deal with” means to “take measures 

concerning (someone or something), esp. with the intention of putting something 

right.” See id. at 445. But when that process breaks down and a homeowner sues

Houston Laureate for breach of contract, the parties are no longer “deal[ing] with” 

one another “to facilitate the purposes” of the Agreement. The homeowner instead 

is asking a court to prevent further violations or to impose a remedy for Houston 

Laureate’s past breach of contract. Section 13.1 grants the Association’s

Designated Representative the legal authority to sue on the homeowners’ behalf, 

but it does not deprive the homeowners of the authority to personally assert their 

claims. See also Ayres Welding Co. v. Conoco, Inc., 243 S.W.3d 177, 181 (Tex. 

App.—Houston [14th Dist.] 2007, pet. denied) (explaining that more specific 

provisions trump general provisions). 

In addition to challenging the trial court’s summary-judgment ruling on the 

issue of Russell’s and Goffman’s standing and capacity to pursue their claims, 

Houston Laureate challenges the trial court’s denial of its motion for new trial on 

this issue. We review the denial of a motion for new trial for abuse of discretion. 

See In re R.R., 209 S.W.3d 112, 114 (Tex. 2006) (per curiam). Houston Laureate 

did not brief this part of the issue, and in any event, its motion for new trial repeats 

the same argument made in its summary-judgment response. Because that 

argument is incorrect for the reasons discussed, the trial court did not abuse its 

discretion in denying the motion for new trial on the question of Russell’s and 

 

5

Emphasis added.
12

Goffman’s standing and capacity. Thus, we overrule Houston Laureate’s first 

issue. 

B. The Agreement Bars Houston Laureate from Charging a Licensing Fee

for the Use of the Recreational Land by an Independent Fitness Trainer 

who is a Resident’s Visitor or Invitee.

Houston Laureate next challenges the trial court’s partial summary-judgment 

ruling that the Agreement prohibits Houston Laureate from charging licensing fees 

to an independent fitness trainer who is authorized by a homeowner to use the 

Recreational Land. In seeking summary judgment on this issue, the Residents 

relied on section 1.6 of the Agreement:

1.6 Mutual Use. . . . The Office Building Owner hereby reserves for 

itself . . . the full, free, and uninterrupted use, liberty, right, privilege 

and easement, in common with the Residential Landowner and its 

assigns, and all others having like right, at all times hereafter, to use 

the easement granted together with such additional rights granted or 

reserved as provided herein. Such mutual use shall be free of any 

charge or payment therefor (except as to expenses which are to be 

divided as herein provided), and shall be subject to the terms of this

Agreement. . . .

6

Section 1.6 unambiguously prohibits Houston Laureate from charging the 

Residential Landowner “and all others having like right” for use of the easement. 

We already have seen that the homeowners succeeded to the Residential 

Landowner’s rights under the Agreement, and section 1.5 further provides that 

“[t]enants, invitees and visitors of the Residential Landowner and its assigns are 

hereby authorized to exercise any one or more of the rights granted to the 

Residential Landowner . . . , subject, however to the terms of this Agreement.” 

Thus, the Agreement unambiguously bars Houston Laureate from charging the 

homeowners, their visitors, or their invitees to use the Recreational Land. This 

 

6

Emphasis added.
13

prohibition contains no exception for charges imposed by rule.7 See DeWitt Cty. 

Elec. Co-op., Inc. v. Parks, 1 S.W.3d 96, 102 (Tex. 1999) (“[G]eneral provisions of 

the easement . . . cannot override other, more specific provisions of the easement 

that spell out in detail the parties’ respective rights.”).

Houston Laureate argues that the Agreement permits the Recreational Land 

to be used only for “recreational purposes,” and that “recreational purposes” do not 

include “for-profit” activities. We do not consider whether that might be true in a 

more general sense, because in the Agreement, “recreational purposes” is a defined 

term. Cf. Marcus Cable Assocs., L.P. v. Krohn, 90 S.W.3d 697, 701 (Tex. 2002) 

(“When the grant’s terms are not specifically defined, they should be given their 

plain, ordinary, and generally accepted meaning. ((emphasis added)). 

“Recreational Purposes” is defined as “picnicking, swimming, exercising, hiking, 

walking, jogging, ballplaying and other uses generally associated with parks and 

playgrounds.” Thus, the Agreement identifies “recreational purposes” by the 

objective nature of the activity, not the participants’ reasons for engaging in it. 

Such “recreational purposes” naturally include supervising or assisting 

others in recreational use. When an adult supervises a child on a playground, they 

both are using the playground for a “recreational purpose,” regardless of whether 

the adult is a parent or a paid babysitter. When one person pushes another in a 

wheelchair along a jogging trail, they both are using the trail for a recreational 

 

7 Moreover, section 1.6 gives Houston Laureate “the right to impose reasonable rules and 

regulations applicable to the Recreational Land and the improvements located thereon, so long as 

said rules and regulations do not unreasonably impair or restrict use of the Recreational Land and 

are consistently and uniformly applied to all users of the Recreational Land.” Thus, Houston 

Laureate not only is flatly prohibited from imposing additional charges on one of the 

Recreational Land’s users, but also is prohibited from enacting a rule that applies solely to those 

users who are, or who use the services of, independent fitness trainers.
14

purpose, regardless of whether the person providing assistance is a volunteer or a 

professional aide. 

The same reasoning applies to the activity of exercising: when a homeowner 

is exercising under a person’s guidance, they both are using the property for a 

recreational purpose; regardless of whether the person is a friend or a business 

invitee, the activity they are engaging in is the same. The Agreement specifically 

authorizes a homeowner’s visitors and invitees to use the Recreational Land, and 

draws no distinction between the visitor’s use and the same use by a homeowner’s 

invitee.

Because the unambiguous language of the contract established the 

Residents’ right to judgment on this issue as a matter of law, the trial court did not 

err in granting their motion for partial summary judgment on the issue of licensing 

fees. See Lopez v. Muñoz, Hockema & Reed, L.L.P., 22 S.W.3d 857, 862 (Tex. 

2000) (“When a contract is unambiguous we will enforce it as written.”).

Houston Laureate additionally contends that the trial court abused its 

discretion in overruling Houston Laureate’s motion for new trial, which included 

an affidavit containing an expert opinion that “rules restricting third-party 

commercial activity at fitness facilities or on recreational land are reasonable and 

common” because that “is the only way to economically operate.” We conclude 

that, for at least two reasons, the trial court did not abuse its discretion in denying 

the motion for new trial on this issue. 

First, the affidavit was signed three weeks after the trial court rendered its 

final judgment. To obtain a retrial based on newly discovered evidence, a party 

must show that (a) the new evidence came to its knowledge since the trial, (b) its 

failure to discover the evidence sooner was not due to a lack of diligence, (c) the

new evidence is not cumulative, and (d) the evidence is so material that it probably 
15

would produce a different result if a new trial were granted. See Waffle House, 

Inc. v. Williams, 313 S.W.3d 796, 813 (Tex. 2010). Houston Laureate addressed 

none of these factors in the trial court or on appeal. 

Second, the evidence is directed to the wrong question: the Residents did 

not seek, and the trial court did not grant, summary judgment on the ground that 

Houston Laureate’s rule charging independent fitness instructors was 

unreasonable. The question addressed was whether the Agreement mandates that 

the use of the Recreational Land by the Association, by a homeowner, or by a 

homeowner’s employee, invitee, or visitor “shall be free of any charge or 

payment,” without regard to whether such a charge otherwise would be reasonable. 

The answer to that question is yes, because the specific prohibition against 

charging for the use of the Recreational Land prevails over the more general 

provision permitting Houston Laureate to enact reasonable rules. See DeWitt Cty. 

Elec. Co-op., Inc., 1 S.W.3d at 102. The trial court therefore did not abuse its 

discretion in denying the motion for new trial on the question of licensing fees.

We overrule Houston Laureate’s second issue. 

C. The Agreement Bars Houston Laureate from Requiring the Residents 

to “Remain on Asphalt Paths at All Times.”

The Residents also successfully sought partial summary judgment on the 

ground that Houston Laureate’s rule, “Remain on asphalt paths at all times,” 

eliminated the right to use the Recreational Land for, among other things, playing 

ball. In its summary-judgment response, Houston Laureate argued only that it has 

exclusive authority to regulate the use of the Recreational Land. Specifically, 

section 1.6 of the Agreement gives Houston Laureate “the right to impose 

reasonable rules and regulations applicable to the Recreational Land . . . , so long 

as said rules and regulations do not unreasonably impair or restrict use of the 
16

Recreational Land . . . .” In addition, section 2.1 gives Houston Laureate “the 

exclusive authority . . . to operate the Recreational Land . . . and to make all 

decisions concerning the manner in which the Recreational Land . . . [is] 

maintained, repaired, improved, . . . configured, and operated.” Houston Laureate 

analogized its position to that of the Houston Arboretum and Nature Center, which

requires users to “stay on designated trails.” Houston Laureate pointed out that the

arboretum is a park, and concluded, “What the City can do, Houston Laureate can 

do.”

But the Agreement did not convey a right to use the Recreational Land as an 

arboretum; it expressly conveyed to the Residential Landowner the right to use the 

Recreational Land for “picnicking . . . , ballplaying and other uses generally 

associated with parks and playgrounds.” (emphasis added). Compare NEW 

OXFORD AMERICAN DICTIONARY 81 (defining “arboretum” as “a botanical garden 

devoted to trees”) with id. at 1341 (defining “playground” as “an outdoor area 

provided for children to play on, esp. at a school or public park”). Consistent with 

those purposes, section 1.1 of the Agreement conveyed an easement “on, over, and 

across the Recreational Land . . . together with the right to walk on and over the 

roadway, ramps and pedestrian access ways within the Recreational Land.”

(emphasis added). Similarly, “Recreational Land” is defined in the agreement to 

include not only “esplanades, pathways, trails, [and] bike paths,” but also “green 

belts.” Houston Laureate’s summary-judgment argument ignores all of this 

language in contravention of the canons of contract construction. See Plains Expl. 

& Prod. Co., 473 S.W.3d at 305 (explaining that in contract construction, courts 

must harmonize and give effect to all of the contract’s provisions, so that none is 

rendered meaningless or given controlling effect). Because the terms of the 

Agreement do not permit Houston Laureate to restrict all use of all areas of the 
17

green belt at all times, the trial court did not err in granting partial summary 

judgment on this issue. 

Houston Laureate also contends that the trial court abused its discretion in 

denying its motion for new trial on this issue. In that motion, Houston Laureate 

argued that the rule prohibiting any user from stepping off of the asphalt paths is 

reasonable because it was enacted for safety reasons. Although Houston Laureate 

did not raise that argument in its summary-judgment response, it did file a motion 

to reconsider the partial summary judgment, and it argued in that motion that the 

grassy areas of the Residential Land are unsuitable for picnicking because “[t]hey 

are uneven, mostly sloping ground.” The evidence offered in support of the 

motion for reconsideration consisted solely of copies of the orders granting partial 

summary judgment; however, the motion for reconsideration was heard after the 

evidentiary hearing on the temporary injunction, where the court heard evidence 

from Houston Laureate’s Designated Representative Janice Levering King.

We do not agree with Houston Laureate’s contention that King’s testimony 

created a fact issue on the reasonableness of the rule regarding asphalt paths. At 

the hearing, King was asked about “conditions on the recreational land that can 

cause safety issues,” and she testified that “[t]he terrain is uneven” and “[t]here is a 

lot of change in elevation on the property.” She testified about erosion on the 

bayou adjacent to the property, but not on the property itself. Significantly, King

did not link any of her statements about uneven terrain to the rule prohibiting users 

from stepping off of the asphalt paths, nor did she testify that the rule was passed 

for safety reasons. 

The rule does not merely limit the use of the green belt; the rule eliminates 

it. That some terrain is uneven or unsafe cannot justify a complete ban. The 

Agreement authorizes Houston Laureate to issue rules limiting or regulating the 
18

use of the Recreational Land, but the Agreement does not authorize Houston 

Laureate to issue a rule revoking a specific right of use that the Agreement has 

expressly conveyed.

We conclude that the trial court did not abuse its discretion in denying 

Houston Laureate’s motion for new trial on this question, and we overrule this 

issue.

D. The Trial Court’s Partial Summary Judgment Regarding Attorney’s 

Fees is Overly Broad.

The trial court granted partial summary judgment that Houston Laureate 

cannot charge its attorney’s fees from this case to the Residents. This ruling was 

incorporated into the permanent injunction, and Houston Laureate challenges both 

the injunction and the underlying summary judgment. 

1. Houston Laureate’s challenge to the partial summary judgment and 

the injunction regarding attorney’s fees is not moot.

The Residents assert that this issue is moot because after the trial court 

granted their motion for summary judgment on the matter of attorney’s fees, all of 

the parties stipulated that they waived their respective rights to recover attorney’s 

fees claimed or incurred at any stage of this litigation. Houston Laureate responds 

that the issue of attorney’s fees is not moot because the partial summary judgment 

will continue to have a res judicata effect. Houston Laureate is correct. The 

waiver of attorney’s fees from this litigation did not set aside the prior partial 

summary judgment, and the permanent injunction incorporated that ruling. The 

issue is not moot. See Hyundai Motor Co. v. Alvarado, 892 S.W.2d 853, 855 (Tex. 

1995) (per curiam) (“A partial summary judgment is a decision on the merits 

unless set aside by the trial court.”). The waiver still affects the appeal, however, 

because Houston Laureate has waived the right to relitigate its ability to shift 

responsibility for the attorney’s fees it incurred in this case. Thus, if we conclude 
19

that the trial court erred in any of its rulings concerning attorney’s fees, we may 

reverse the ruling so that it will not bar Houston Laureate from litigating its right to 

recover attorney’s fees arising from a different case, but we cannot remand any

claim for fees arising from this litigation because Houston Laureate has waived 

any right it may have had to recover those fees. 

2. The Agreement’s indemnification provision does not apply to 

Houston Laureate’s attorney’s fees incurred in defending against 

the Residents’ pursuit of injunctive relief, but the Residents did not 

argue that the provision applies to Houston Laureate’s attorney’s 

fees incurred in defending against their claims for damages. 

We begin our analysis with the language of the relevant provision. Section 

3.2 of the Agreement contains the following waiver-and-indemnification provision:

To the extent not expressly prohibited by law or caused by [Houston 

Laureate’s] gross negligence or willful misconduct, Residential 

Landowner hereby releases [Houston Laureate] . . . from and waives 

all claims for damages, losses and liability to persons or property 

sustained by the Residential Landowner . . . arising or resulting from 

or in connection with the use of the Recreational Land and the 

Residential Landowner hereby agrees to indemnify, save, protect and 

hold harmless [Houston Laureate] . . . from and against all such 

liability, losses, damages, costs and claims, including without 

limitation court costs and reasonable attorneys’ fees and expenses. . . . 

Notwithstanding the foregoing, nothing contained herein is intended 

to release either the Residential Landowner or [Houston Laureate] 

from any other obligations contained in this Agreement.

Under this provision, the Residential Landowner has a duty to indemnify 

Houston Laureate for attorney’s fees only if the fees were incurred in connection 

with a claim that the Residential Landowner has waived or released. As previously 

discussed, however, section 14.8 reserves the right of homeowners and of the 

Association to sue for injunctive relief. Thus, claims seeking injunctive relief for 

Houston Laureate’s actual or threatened breach of the Agreement were neither 

waived nor released. 
20

In their motion for partial summary judgment on the issue of attorney’s fees, 

the Residents argued that section 3.2 does not obligate them to indemnify Houston 

Laureate for its attorney’s fees because they “are making no claim for ‘damages, 

losses (or) liability,” and the Residents are not “obligated to indemnify [Houston 

Laureate] for the cost of defending its violations of the easement against suits for 

injunctive relief.” Houston Laureate responded that the Residents also asserted

claims for damages, losses, and liability, and it repeated that argument in its 

motion for new trial. Both sides are partially correct. 

Because the Agreement preserves the Residents’ rights to pursue injunctive 

relief, we agree with the Residents that they are not obligated to indemnify 

Houston Laureate for the attorney’s fees it incurred in litigating the Residents’ 

entitlement to such a remedy. We accordingly affirm the portion of the permanent 

injunction that is based on the trial court’s partial summary judgment on that 

question, and we hold that the trial court did not abuse its discretion in denying 

Houston Laureate’s motion for new trial on that point. 

On the other hand, the Residents are mistaken in asserting that they made no 

claims for damages, losses, or liability. Goffman sued for breach of contract, and 

in his first two pleadings, he also alleged constructive eviction. He dropped his 

constructive-eviction claim after Houston Laureate moved for summary judgment 

on that cause of action, but he continued to pursue his claim for breach of contract. 

In his live pleading, Goffman specifically prayed to recover damages caused by 

Houston Laureate’s breach of the Agreement. 

Because the Residents raised no grounds for summary judgment regarding 

their duty to indemnify Houston Laureate for the attorney’s fees it incurred in 

connection with claims for damages, the trial court erred in granting partial 

summary judgment that section 3.2 prohibits Houston Laureate from charging such 
21

fees to the Residents. We reverse the trial court’s partial summary judgment 

concerning Houston Laureate’s right to indemnification for fees it incurred in 

connection with claims against it for damages in this litigation, and we modify the 

permanent injunction to clarify that Houston Laureate is barred from charging the 

Residents for those attorney’s fees, not because of the trial court’s ruling, but 

because it has waived its contractual right, if any, to do so. 

3. The Residents failed to establish that Houston Laureate is not 

authorized to charge a portion of its attorney’s fees to the 

Association under the Agreement’s operation-expenses provision.

The Agreement requires the Residential Landowner to pay for 25% of 

Houston Laureate’s “maintenance and operation expenses.” Section 2.3 defines 

that expression as follows:

2.3 Maintenance and Operation Expenses. The term “Maintenance 

and Operation Expenses”, as used herein, shall include, without 

limitation, the following: 

(a) the aggregate of all reasonable, necessary and proper 

costs[,] expenses and liabilities of every kind and nature 

paid or incurred in operating, maintaining, repairing, 

insuring and supervising or policing the use [of] the

Recreational Land, any improvements located thereon 

and any public easements or rights-of-way appurtenant 

thereto, including without limitation, signs, an equitable 

allocation of the costs of providing guards or other 

security personnel or devices, if any, that [Houston 

Laureate] deems reasonably necessary and which is 

commercially practicable for proper supervision and 

security pertaining to the use of the Recreational Land, 

cleaning, sweeping, striping, paving, painting, snow and 

debris removal, landscaping, lighting, sprinklering, 

sidewalk and surface repair, equipment rental and 

purchase, utilities, reasonable reserves, an equitable 

allocation of management fees, an equitable allocation of 

labor costs, direct labor, supplies, utilities, casualty, 

liability and any other insurance, maintenance, 
22

demolition, repairs (structural or otherwise), 

replacement. . . .

The term “Maintenance and Operation Expenses”, shall exclude the 

following:

. . . .

(e) Any expenses incurred solely for the benefit of, or

attributable to the requirements of, the Office Building

Land (or [Houston Laureate]), or the Residential Land (or 

the Residential Landowner), which expenses shall be 

borne exclusively by the party required to incur them, or 

solely benefiting from them.

The Residents maintain that Houston Laureate’s attorney’s fees were not 

recoverable as “operation expenses” under section 2.3, and sought partial summary 

judgment on this issue on three grounds. We conclude, however, that the trial 

court’s ruling cannot be sustained on any of them.

First, the Residents reasoned that Houston Laureate’s attorney’s fees are not 

“necessary and proper” operation expenses because the fees were incurred in 

defense of rules that violated the Agreement. Stated differently, the Residents 

argued that Houston Laureate could not recover attorney’s fees because the trial 

court agreed with the Residents that Houston Laureate breached the contract. The 

flaw in that position is that section 2.3 contains no “prevailing party” language; 

thus, the Residents did not establish that, as a matter of law, Houston Laureate’s 

attorney’s fees were not “necessary and proper” simply because Houston 

Laureate’s defense of its rules was unsuccessful. 

Second, the Residents argued that Houston Laureate’s attorney’s fees were 

“incurred in litigating, a term not mentioned in 2.3 and an activity not suggested by 

any of 2.3’s laundry list of examples.” Although section 2.3 does not use the word 

“litigating,” it provides that operation expenses “include, without limitation, . . . the 

aggregate of all reasonable, necessary and proper costs[,] expenses and liabilities 
23

of every kind and nature paid or incurred in operating, . . . [or] policing the use 

[of] the Recreational Land.” (emphasis added). The subsequent list of included 

expenses is not a limitation of this expansive language. See, e.g., Anderson & Kerr 

Drilling Co. v. Bruhlmeyer, 134 Tex. 574, 582, 136 S.W.2d 800, 804 (1940); Jones 

v. St. Paul Ins. Co., 725 S.W.2d 291, 292 (Tex. App.—Corpus Christi 1986, no 

writ).

As a third ground for summary judgment, the Residents made the bare

assertion that “[t]he attorneys’ fees in question were unquestionably ‘solely for the 

benefit of,’ and ‘attributable to the requirements of’ Defendant [Houston 

Laureate].” This statement is no more than an unsupported allegation. The 

Residents made no attempt to explain why, as a matter of law, this allegation is 

true. 

On the question of whether Houston Laureate can charge a portion of its 

attorney’s fees to the Residents as operation expenses, the partial summary 

judgment cannot be affirmed on any of the grounds advanced in the Residents’ 

motion. We therefore reverse the portion of the partial summary judgment holding 

that section 2.3 prohibits Houston Laureate from charging a portion of its 

attorney’s fees as operation expenses, and we modify the permanent injunction to 

clarify that Houston Laureate is barred from charging those fees to the Residents,

not because of the trial court’s ruling, but because Houston Laureate has waived its 

contractual right, if any, to do so. 

IV. FINAL PERMANENT INJUNCTIVE RELIEF

In its remaining issue, Houston Laureate challenges each portion of the 

permanent injunction. We review the grant of injunctive relief for abuse of 

discretion. See Operation Rescue-Nat’l v. Planned Parenthood of Hous. & Se. 

Tex., Inc., 975 S.W.2d 546, 560 (Tex. 1998); Tanglewood Homes Ass’n, Inc. v. 
24

Feldman, 436 S.W.3d 48, 46 (Tex. App.—Houston [14th Dist.] 2014, pet. denied). 

A trial court abuses its discretion if it acts without reference to guiding rules or 

principles. Van Ness v. ETMC First Physicians, 461 S.W.3d 140, 142 (Tex. 2015)

(per curiam).

A. Houston Laureate Cannot Show That It Was Deprived of the Right to a 

Jury Trial.

Houston Laureate contends that it “was deprived of a jury trial on the issue 

of the availability of a permanent injunction” and cites the page of its first 

amended answer in which Houston Laureate demanded a jury trial and stated that it 

tendered the appropriate fee with the pleading. Nevertheless, the right to a jury 

trial can be waived even after the jury fee is paid. See In re K.M.H., 181 S.W.3d 1, 

8 (Tex. App.—Houston [14th Dist.] 2005, no pet.). The Residents maintain, and 

Houston Laureate denies, that under the terms of the parties’ joint stipulation, 

Houston Laureate has waived this complaint. To resolve this issue, we must 

construe the joint stipulation.

We review stipulations among parties in the same way as other contracts. 

See In re Ford Motor Co., 211 S.W.3d 295, 298 (Tex. 2006) (orig. proceeding) 

(per curiam). We construe the agreement in light of its stated purpose. See, e.g.,

Kilgore Expl., Inc. v. Apache Corp., No. 01-13-00347-CV, 2015 WL 505275, at 

*6–7 (Tex. App.—Houston [1st Dist.] Feb. 5, 2015, no pet.) (mem. op.) 

(construing a contract in light of the purpose stated in the opening recitals); Nat’l 

Union Fire Ins. Co. of Pittsburgh, Pa. v. Ins. Co. of N. Am., 955 S.W.2d 120, 129 

(Tex. App.—Houston [14th Dist.] 1997) (same), aff’d sub nom. Keck, Mahin & 

Cate v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., 20 S.W.3d 692 (Tex. 2000).

After the evidentiary hearing about extending the temporary injunction

through trial, the parties jointly stipulated as follows:
25

[All parties] appear through their respective counsel to enter 

into this Stipulation to conclude all matters presently pending in this 

Court and to allow the Court to enter a final appealable judgment.

The Parties agree and stipulate to the following:

1. [Houston Laureate] agrees that it will not argue on appeal 

that the Final Judgment and Permanent Injunction (“Judgment”) to 

be entered in this proceeding is not final or that the Judgment is 

procedurally defective because there has been no trial on the merits. 

Houston Laureate reserves the right to object and to challenge on 

appeal any factual and legal findings that the Court makes in support

of permanent injunctive relief including the right to a jury trial where 

applicable.8

By reserving the right to challenge the trial court’s factual findings and legal 

conclusions “including the right to a jury trial,” Houston Laureate preserved the 

ability to argue for a jury trial as part of its challenge to the trial court’s findings of 

fact and conclusions of law. See NEW OXFORD AMERICAN DICTIONARY 879 

(defining “including” as “containing as part of the whole being considered). This 

language ensured that, even though Houston Laureate agreed to forego a jury trial 

so that the trial court’s interlocutory rulings could be incorporated into an 

appealable final judgment and permanent injunction, Houston Laureate still could 

argue on appeal that if it successfully challenged one of the trial court’s findings of 

fact or conclusions of law, then it was entitled to a jury trial on remand. 

At oral argument, Houston Laureate characterized the stipulation as an 

agreement that Houston Laureate would not argue that the absence of a jury trial 

was a procedural defect, but maintained that their appellate complaint is not 

waived because failure to conduct a jury trial is a substantive defect. In effect, 

then, Houston Laureate contends that although it agreed to forego a jury trial so 

that it could appeal, it nevertheless reserved the right to argue on appeal that it was 

 

8

Emphasis added.
26

deprived of a jury trial. This is not a reasonable construction of the parties’ 

agreement. 

Moreover, even if we agreed that Houston Laureate’s construction of the 

stipulation were correct, the doctrine of invited error still would prevent Houston 

Laureate from arguing on appeal that it was deprived of a jury trial. Under the 

doctrine of invited error, a party that requests a specific action in the trial court 

cannot complain on appeal that the trial court committed error in granting the 

request. See Lamell v. OneWest Bank, FSB, 485 S.W.3d 53, 64 (Tex. App.—

Houston [14th Dist.] 2015, pet. denied). The parties entered into the stipulation 

after the evidentiary hearing on the temporary injunction, and they agreed that they 

did so to end the litigation in the trial court and proceed with an appeal. The trial 

court recited in the judgment that the attorneys for all parties appeared before the 

trial court and moved for entry of final judgment and permanent injunction. The 

trial court granted the motion, and in the requested final judgment and permanent 

injunction, the trial court expressly stated that its ruling was “based on the joint 

stipulation,”9among other things. Having successfully moved for the trial court 

“to conclude all matters presently pending” in the trial court rather than proceeding 

to a jury trial on the merits, Houston Laureate cannot be heard to complain that the 

trial court erroneously deprived Houston Laureate of the right to a jury trial. 

B. The Permanent Injunction Must Be Modified to Eliminate the 

Incorporation of Erroneous Partial Summary-Judgment Rulings. 

In the next part of this issue, Houston Laureate contends that the trial court 

abused its discretion in granting permanent injunctive relief that relied on 

erroneous summary-judgment rulings. Specifically, the trial court permanently 

enjoined Houston Laureate from

 

9 Capitalization eliminated.
27

 Limiting [the Residents’] use of the Park Laureate Grounds 

covered by the [Agreement] to asphalt paths;

 Imposing any charge, directly or indirectly, on [the Residents] for 

using a personal trainer at the Park Laureate exercise facility, or on 

such a trainer employed by [the Residents]; [and]

 Imposing any charge on or seeking any indemnity from [the 

Residents] for attorney’s fees and court [costs] [Houston Laureate] 

has incurred in this proceeding . . . .

10

As previously discussed, only the injunction concerning attorney’s fees is 

based on an erroneous summary-judgment ruling, and we modify the permanent 

injunction accordingly. 

C. The Permanent Injunction Must Be Further Modified Only to 

Eliminate Vague Language About Unspecified “Interference.”

The trial court also permanently enjoined Houston Laureate from

 Interfering with [a Resident’s] rights to use and enjoyment of the 

[Agreement] [sic][;]

 Suspending or purporting to suspend [a Resident’s] rights under 

the [Agreement] based on a purported failure or refusal to pay an 

amount due under the [Agreement] 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 trespass or 

otherwise, based on a purported suspension of rights under the 

[Agreement] . . . .

Of these three categories of enjoined conduct, Houston Laureate has briefed its 

challenges to the last two categories together, and we address them in the same 

way.

11

 

10 The judgment actually refers to “attorney’s fees and court courts [sic],” which is an 

obvious clerical error. The judgment states that it is rendered based on the parties’ prior 

stipulations, agreements, and the trial court’s previous rulings for summary judgment, and in the 

summary judgment regarding attorney’s fees, the trial court held that sections 2.3 and 3.2 of the 

Agreement do not allow Houston Laureate to charge any of the Residents “for attorneys’ fees 

and court costs incurred” in this case. 
28

1. The injunction against interfering with a Resident’s rights to the use 

and enjoyment of the Agreement or of the Recreational Land is 

overly broad and non-specific.

To quote from the judgment, the trial court enjoined Houston Laureate from 

“[i]nterfering with Plaintiff or Intervenors’ rights to use and enjoyment of the 

REA.” “REA” was defined in the judgment to mean the Recreational Easement 

Agreement, which we have called simply “the Agreement.” Thus, under the literal 

terms of the judgment, Houston Laureate is enjoined from interfering with a

Resident’s right to use and enjoyment of the Agreement. 

Houston Laureate contends that this part of the injunction “is not specific 

because it does not identify or define the rights at issue other than by generally 

referencing the Easement Agreement.”12 In support of this argument, Houston 

Laureate cites San Antonio Bar Ass’n v. Guardian Abstract & Title Co., 156 Tex. 

7, 15, 291 S.W.2d 697, 702 (1956) (quoting Villalobos v. Holguin, 146 Tex. 474, 

480, 208 S.W.2d 871, 875 (1948)). In that case, the Texas Supreme Court 

acknowledged its prior holding that an injunction “must be as definite, clear and 

precise as possible and when practicable it should inform the defendant of the acts 

he is restrained from doing, without calling on him for inferences or conclusions 

about which persons might well differ and without leaving anything for further 

hearing.” Id. The court added that “the injunction must be in broad enough terms 

to prevent repetition of the evil sought to be stopped, whether the repetition be in 

 

11 We have reordered the list so that the categories of enjoined conduct that Houston 

Laureate briefed together are addressed last.

12 Houston Laureate also relies on Texas Rule of Civil Procedure 683. See TEX. R. CIV.

P. 683 (“Every order granting an injunction . . . shall set forth the reasons for its issuance; shall 

be specific in terms; shall describe in reasonable detail and not by reference to the complaint or 

other document, the act or acts sought to be restrained . . . .”). However, this court has held that 

“Rule 683 applies to temporary injunctions, not permanent injunctions.” Malekzadeh v. 

Malekzadeh, No. 14-05-00113-CV, 2007 WL 1892233, at *2 (Tex. App.—Houston [14th Dist.] 

July 3, 2007, pet. denied) (mem. op.).
29

form identical to that employed prior to the injunction or (what is far more likely) 

in somewhat different form calculated to circumvent the injunction as written.” Id. 

It always has been the case, however, that a trial court abuses its discretion 

in rendering a decree of injunction “so broad as to enjoin a defendant from 

activities which are a lawful and proper exercise of his rights.” Coyote Lake 

Ranch, LLC v. City of Lubbock, No. 14-0572, 2016 WL 3176683, at *10 (Tex. 

May 27, 2016) (quoting Holubec v. Brandenberger, 111 S.W.3d 32, 39–40 (Tex 

2003)); Villalobos, 146 Tex. at 480, 208 S.W.2d at 875. Under the terms of the 

Agreement, Houston Laureate has “the right to impose reasonable rules and 

regulations applicable to the Recreational Land and the improvements located 

thereon, so long as said rules and regulations do not unreasonably impair or restrict 

use of the Recreational Land and are consistently and uniformly applied to all users 

of the Recreational Land.”

13

 But even reasonable rules and regulations interfere to 

some extent with the Residents’ rights to the use and enjoyment of the Recreational 

Land. We conclude that the trial court abused its discretion in enjoining Houston 

Laureate from “interfering with [a Resident’s] rights to use and enjoyment” of the 

Recreational Land because this far-reaching prohibition enjoins Houston Laureate 

even from the proper exercise of its rights.

14

 Because this portion of the judgment 

is too broad and generalized to stand, we sustain this part of Houston Laureate’s 

sixth issue and we modify the judgment to delete this part of the injunction.

 

13 Emphasis added.

14 Moreover, even if the language were modified to permit Houston Laureate to impose 

reasonable rules that interfere with the Residents’ rights, reasonableness usually is a question of 

fact about which reasonable minds may differ. Were Houston Laureate to misjudge the 

reasonableness of a proposed rule in the future, Houston Laureate’s breach of the contract would 

constitute contempt of a court order.
30

2. Houston Laureate failed to preserve its complaint that the 

Residents’ pleadings do not support the remaining injunctions.

Houston Laureate’s remaining complaint is directed to the injunctions 

prohibiting Houston Laureate from suspending the Residents’ contractual rights for 

failing or refusing to pay disputed fees and from threatening the Residents with 

criminal prosecution. According to Houston Laureate, these injunctions must fail

because the Residents “did not plead that Houston Laureate could not suspend 

rights or remove trespassers from the property.” The Residents alleged exactly that 

in their application for temporary and permanent injunction and requested the relief 

that the trial court granted, but Houston Laureate contends that the trial court erred 

in doing so because a judgment must be supported by the pleadings, and an 

“application” is not a “pleading.”

Here, too, the invited-error doctrine prevents us from considering this 

argument. The Residents complied with the procedure for obtaining a temporary 

injunction by petitioning the trial court for such relief. See TEX. R. CIV. P. 682 

(“No writ of injunction shall be granted unless the applicant therefor shall present 

his petition to the judge verified by his affidavit and containing a plain and 

intelligible statement of the grounds for such relief.”). The Residents filed such a 

verified petition, and although it is referred to as an “application,” the use of this 

word accurately reflects that it was filed by an “applicant” for injunctive relief as 

described in Rule 682. Cf. Cohen v. Landry’s, Inc., 442 S.W.3d 818, 823 (Tex. 

App.—Houston [14th Dist.] 2014, pet. denied) (“The nature of a motion is 

determined by its substance, not its title or caption.”). After the trial court 

announced that it was granting the temporary injunction, Houston Laureate asked 

that the trial court render an appealable permanent injunction. Houston Laureate 

therefore consented to the rendition of permanent injunctive relief based on the 

procedures governing a request for a temporary injunction, and the trial court’s 
31

error, if any, in acceding to this request was invited. See also TEX. R. CIV. P. 90 

(providing that in a non-jury case, a party who wishes to complain on appeal about 

defects or omissions of the pleadings must specifically point them out in writing 

and bring them to the trial court’s attention before the judgment is signed, or the 

complaint is waived); TEX. R. APP. P. 33.1(a) (requiring complaints to be made in 

the trial court as a prerequisite for appellate review); Sherman v. Provident Am. 

Ins. Co., 421 S.W.2d 652, 654 (Tex. 1967) (“Insufficiency of pleadings cannot be 

raised for the first time in the appellate courts.”); Malekzadeh v. Malekzadeh, No. 

14-05-00113-CV, 2007 WL 1892233, at *2 (Tex. App.—Houston [14th Dist.] July 

3, 2007, pet. denied) (mem. op.) (same). 

Houston Laureate additionally argues that the Residents “did not move for 

summary judgment on these issues, and Houston Laureate has not had a trial on the 

merits on these issues.” But, as previously discussed, the invited-error doctrine 

bars Houston Laureate from complaining on appeal that the case did not proceed to 

trial. We accordingly do not address these portions of Houston Laureate’s sixth 

issue.

V. CONCLUSION

Our rulings on the issues presented in this appeal are as follows:

A. We conclude that Houston Laureate’s challenges to the trial court’s partial 

summary-judgment rulings on Russell’s and Goffman’s standing and 

capacity and on Houston Laureate’s contractual right to charge the 

Association for some or all of the attorney’s fees that Houston Laureate 

incurred in this proceeding are not moot. 
32

B. Regarding the merits of Houston Laureate’s challenges to the trial court’s 

rulings on the summary-judgment motions and on the motion for new trial, 

we affirm the trial court’s rulings

1. denying Houston Laureate’s motion for partial summary judgment 

challenging and Russell’s and Goffman’s standing and capacity to 

pursue their claims;

2. granting the Residents partial summary judgment on their claim that 

Houston Laureate violated the Agreement by charging a licensing fee 

for the use of the Recreational Land by an independent fitness trainer 

who is a Resident’s visitor or invitee;

3. granting the Residents partial summary judgment on their claim that 

Houston Laureate violated the Agreement by requiring the Residents

to remain on the asphalt paths at all times;

4. granting the Residents partial summary judgment on their contention 

that the Agreement’s indemnification provision does not authorize 

Houston Laureate to charge the Association for the attorney’s fees 

Houston Laureate incurred in this case in defending against the 

Residents’ requests for injunctive relief; and 

5. denying Houston Laureate’s motion for new trial on these issues.

C. We reverse the trial court’s summary-judgment rulings only to the extent 

that the trial court 

1. ruled on the question, not presented in the summary-judgment motion, 

of whether the Agreement’s indemnification provision authorizes 

Houston Laureate to charge the Association for the attorney’s fees and 
33

court costs Houston Laureate incurred in this case in defending 

against claims for monetary damages; and

2. granted summary judgment on the question of whether the 

Agreement’s operation-expenses provision authorizes Houston 

Laureate to charge the Association for a portion of the attorney’s fees 

Houston Laureate incurred in this case.

D. Concerning Houston Laureate’s challenge to the trial court’s permanent 

injunction, we hold that

1. Houston Laureate is unable to show that the trial court deprived it of 

the right to a jury trial on the merits; and

2. Houston Laureate did not preserve its complaint that the pleadings fail 

to support the injunctive relief ordered; but

3. the general injunction against interfering with a Resident’s rights to 

the use and enjoyment of the Agreement or of the Recreational Land 

is too vague to be enforceable.

E. To the extent that we have reversed the trial court’s partial summaryjudgment rulings, 

1. we reverse the permanent injunction based on those rulings to the 

same extent; and

2. Houston Laureate’s challenge to the denial of its motion for new trial 

on those matters is moot.

Finally, we effectuate these rulings by modifying the portion of the amended 

final judgment which lists the permanent injunctive relief ordered. As modified, 

that portion of the judgment now reads as follows:
34

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 charge, 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 section 3.2 of the REA for attorney’s fees and court 

costs Houston Laureate 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 has 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 

trespass or otherwise, based on a purported suspension of rights 

under the REA.

/s/ Tracy Christopher

Justice

Panel consists of Justices Christopher, McCally, and Busby.