1 In The 

### Court of Appeals Ninth District of Texas at Beaumont

__________________ NO
. 09
- 21
- 00090
- CV

__________________ JAMES A. ULLRICH AND JOAN ULLRICH , Appellant s V. CONRAD G. MEIJER AND LAURA B. MEIJER , Appellee s

__________________________________________________________________ On Appeal from the 457th District Court Montgomery County, Texas Trial Cause No. 19
- 12
- 16882
- CV

__________________________________________________________________ MEMORANDUM OPINION In two issues on appeal , A ppellants James A. Ullrich and Joan Ullrich (“the Ullriches”) c omplain the trial court a bused its discretion by not awarding them declaratory and injunctive relief regarding the fence A ppellees Conrad G. Meijer and Laura B. Meijer (“the Meijers”) constructed that allegedly violated restrictive2 covenants and by failing to award them attorney’s fees. 1 We affirm the trial court’s judgment.
BACKGROUND The Ullriches brought suit against the Meijers for making improvements to their property in the River Plantation Section One subdivision (“River Plantation”) by const ruct ing a fence and an outbuilding tha t allegedly violat ed River Plantation’s Declaration of R estrictions (“ deed restrictions ”) and A rchitectural C ontrol
G uidelines (“the g uidelines”) approved by the Architectural Control C ommittee (“ACC”)

. 2 In t he ir live pleading , the Ullriches alleged t hat the Meijers constr u cted a fence without prior written application and approval of the ACC in violation of the deed restrictions , which states that no improvements can be made without written application and prior approval, and the g uidelines, which limit s fences to a height of six feet and require s the support and bracing of the fence to face the interior of the fence owner’s lot. T he Ullriches all eged the M e ijers’ outbuilding violated the deed restrictions because they constr ucted it without a written application and prior approval and because it is nearer than ten feet from the side building lines, and also

1 The trial court granted the Ullriches relief with the respect to the Meijers’ outbuilding violations , and the Ullriches are not appealing that portion of the trial court’s judgment

. 2 The Ullriches also sued River Plantation Community Improvement Association and Crest Capital Management Co. , but the Ullriches dismissed all claims against both defendants with prejudice

.3 violated th e g uidelines, which state that an outbuilding must be placed a minimum of five feet from any property line

. T he Ullriches requested damage s due to the Meijers’ violation s of the deed restrictions and g uidelines in accordance with section 202.004 of the Texas Property Code , a temporary and perma n ent injunction , and a declaratory judgment that the parties’ properties are subject to the deed rest rictions and g uidelines and that the Meijers’ outbuilding and fence violated the deed restrictions and g uidelines

. The Meijers filed Defendants’ Original Answer, Affirmative Defenses and Request for Disclosure , which asserted a general denial and the affirmative defenses of equitable estoppel, unclean hands, and laches. The trial court conducted a bench trial. The trial exhibits include the deed restrictions and guidelines. The deed restrictions provide that no building or other improvements shall be erected until ACC approves the construction plans

. The de ed restrictions state that no building shall be lo cated “nearer than 10 feet to any side building site line .” The deed restrictions further state that the restrictions “ are for the benefit of River Plantation Development Co., Inc., its successors and assigns, and equally for the benefit of any subsequent owner of a lot or lots in River Plantation ,” and are “ enforc eable at law or in equity, by any one or more of said parties.” The guidelines state that they are intended to set forth the design guidelines used by the ACC, which has exclusive jurisdiction over all modifications, additions,4 and alterations made to pr operties , including fences and outbuildings. The guidelines also state that all property owners are subject to the deed restrictions and guideline s , and the primary goal of the ACC is to review applications and plans to determine if the proposed improvemen t or modification complies with ACC’s standards and policies. The g uidelines provid e that all fences must comply with the building line requirements in the deed restrict io ns, and any fence intended for the purpose of privacy and/or security should be no gr eater than six feet in height with the maximum height of decorative colum ns being seven feet

. The guideline also provides if wood fences are constructed so that reinfo rcing is visible on one side only, the side with visible reinforcing shall face the inter ior of the lot. Concerning outbuildings, the guidelines state that the roof of a storage shed shall be no higher than ten feet from the ground to the highest point and the shed must be placed at a minimum of five feet from any property line and must allow for drainage. Vincent Loverdi , a surveyor hired by the Ullriches , testified he surveyed the parties’ properties and made a drawing reflecting the measurements of the frame building and fence at issue. Loverdi explained that t he fence has a rot board on the bottom , a cap at the top, six

- foot pickets , and is clearly over six feet tall. Loverdi also explained that the survey shows the frame building ’s height at the pe a k of the roof is 10. 4 feet , and the building is locat ed less than ten feet from the Ullriches’ property and less than five fee t from the rear property line

. Loverdi also testified that5 the Ullriches’ garage is less than ten feet from the ir back property line , and their house is 9.9 feet from the lateral property line

. James Ullrich testified that the deed restrictions include a setback provision that prohibits building any structure less than ten feet from the lateral property lines.
James furt her testified that after he determined the Meijers’ frame building was “closer than 10 feet to the property line [,] ” he hired Loverdi’s company to perform a professional survey. James explained that the deed restrictions required all building s to be approv ed by the ACC. James also explained that the g uidelines , which applied t o both his and the Me i jers’ properties , provide that outbuildings must be placed at a minimum of five feet from any property line. James testified that the Meijers’ building is also too tall

. James further testified he filed a complaint with River Plantation Community Improvement Association (“ RPCIA ”) , the homeowners’ as sociation, because he believed the Meijers’ building violated the
ten

- foot setback

. James testified that every homeowner should be required to follow the deed restrictions and g uidelines, and while he agreed the survey shows that his home is less than ten feet from the Meijers’ property line and his garage is less than ten feet away from his back property line , he claimed his house complied with the deed restrictions when it was built

. James explained that his original survey showed his house and garage we re ten feet from the property line. James testified that h e6 complained that the Meijers’ fence was taller than six feet and t hat t he reinforc ement side does not face the interior of their lot, but he explained t hat his fence also faced the wrong direction but was built prior to the guidelines’ adoption

. James further testified that he did not know if RPCIA had approved the Meijers’ fence , which the survey indicates is 6.78 feet tall , and he did not directly speak to the Meijers about the violation s. James explained that he filed suit because he wanted the Meijers’ building and fence to comply with the deed restrictions and guidelines, and he asked the trial court to award him reasonable attorney’s fees. The Ullriches’ attorney testified that the Ul lriches incurred $ 30,489.59 in attorney’s fees. Jaime Goodman , President of RPCIA and a member of the ACC , testified that she is responsible for determining whether homeowners are compliant with the deed restrictions , and she reviews requests to det ermine their compliance

. Goodman testified t hat she received the Ullriches’ complaint and inspected t he Meijers’ home and determ ined that RPCIA was not responsible for the fence issue because it was a neighbor

- to

- neighbor issue. Goodman testified that t he M ei jers had not applied for the ou tbuilding as required by the deed restrictions , so RPCIA asked them to apply for it , and RPCIA determined the outbuilding was “a little bit more than 5 feet[]” from the fence. Goodman explained that the guidelines were approved in 2013 and applied to all the home s that are subject to the deed restrictions , and an outbuilding must be at least five feet away from a property line. Goodman testified that based on7 her review of the Ullriches’ survey, the Meijers’ outbuilding appears to be five feet from the property line. Goodman also testified that to her knowledge, the Meijers were not in violation of the deed restrictions or guidelines. Goodman explained the guideline s provide that a fence cannot exceed six feet unless it has a kickplate or “something decorative on it[,]” and the Meijers’ fence had both. Goodman further explained that sh e determined the Meijers’ fence was compliant even though it was a “little bit higher than 6 feet because it had a kick plate .” Goodman also testified that the older portion of the Ullriches’ fence does not have any reinforcements facing the interior of th eir property

. Goodman testified that both parties’ fences violated th e guidelines

. G oodman also testified that James did not contact the Meijers about the outbuilding violation because he did not want to talk to them. Conrad Meijer testified that he comp lied “with w hat the RPCIA was asking of me.” Conrad further testified that he has no violations with RPCIA or the ACC. Conrad explained that h e received ACC’s approval to build his fence , which is a six

foot fence with a kickplate and a top covering. Conrad testified that he moved his storage shed when he received notice from RPCIA that it was too close to the Ullriches ’ fence, and it is currently over six feet from the Ullriches’ propert y line and complies with the guidelines

. Conrad agreed that his shed was less than five feet from his back pr operty l ine. Conrad further testified that the shed ’s building frame8 height is 10.4 inches, and he explained that the design is “8 by 12 by 10 feet [,]” but it is a couple of inches taller because he placed it on skid s to allow for drainage as require d by the guidelines

. Conrad explained that he wished James had talked to him about his concerns in the beginning , but he also admitted he did not talk to the Ullriches about his plans beforehand

. Conrad testified that he complied with RPCIA , and Goodman had no issues with his shed. Conrad also testified that the construction side of the Ullriches’ fence faces his property

. In its Final Judgment, t he trial court declared the r estrictive c ovenants and
g

uidelines are in full force and effect and ordered that the Meijers shall not allow their outbuilding /shed to be closer than five feet to the Ullriches’ property lines, but the trial court denied the U llrich es’ requested relief concerning the fence and attorney’s fees

. The Ullriches filed a Motion for Reconsideration or Request for a Partial New Trial requesting the trial court reconsider the d eed restrictions regarding the fence and award of attorney’s fees because they prevailed on the issue concerning the Meijers’ out b uilding. The Ullriches’ motion was overruled by operation of law.
ANALYSIS In issue one, the Ullriches complain the trial court abuse d its discretion by not awarding them declaratory and injunctive relief regarding the Meijers’ fence , which the Ullriches allege was both too tall and faced the wrong direction in violation of the g uidelines

. The Ullrich e s further argue there are no genuine issues of material9 fact about the Meijers’ fence, as several witnesses testified the fence was tal l er than six feet and the support rails faced the Ullrich e s’ property

. The Meijers argue the trial court did not abuse its discretion by denying the Ullriche s’ relief concerning the fence because they submitted ample evidence showing the deed restrictions do not contain any provisions regulating fencing , and the fence was approve d by the A CC , which has exclusive jurisdiction to enforce the guidelines. The Meijers maintain that the Ullriches do not have any authority to e nforce the guidelines . The Meijers also claim they established their unclean hands defense as a matter of law because the Ullriches’ deman d concer ned a condition that the Ullriches’ own fence exhibited

. We review at trial court’s construction of a restrictive covenant de novo, using the same rules of construction applicable to contracts. Tarr v. Timberwood Park Owners Ass’n, Inc. , 556 S.W.3d 274, 2 7 9

- 8 0 (Tex. 2018). Our primary concern is to ascertain and give effect to the true intention of the parties as expressed in the instrument. Pilarcik v. Emmons , 966 S.W.2d 474, 478 (Tex. 1998). Injunctive relief is appropriate upon a showing of (1) the exi stence of a wrongful act; (2) the existence of imminent harm; (3) the existence of irreparable injury; and (4) the absence of an adequate remedy at law. Indian Beach Prop

. Owners’ Ass’n v. Linden , 222 S.W.3d 682, 690

– 91 (Tex. App.

— Houston [1st Dist.] 2007, no pet.) (citation omitted). Since

a n injunction is an equitable re medy, the trial court weigh s the respective conveniences and hardships of the parties and balances the equities. Co mputek10 Computer & Office Supplies, Inc. v. Walton , 156 S.W.3d 217, 220 (Tex. App.

— Dallas 2005, no pet.)

. We review a trial court’s denial of a request for injunctive relief for an abuse of discretion, meaning we ask whether the trial court acted in an unreasonable or arbitrary manner or misapplied the la w to the facts. Linden , 222 S.W.3d at 690

– 91

. A trial court does not abuse its discretion when its decision is based on conflicting evidence and some evidence reasonably supports the trial court’s decision. Id. at 691. The party seeking an injunction ha s the burden to show a clear equity demands the injunction. Id. The evidence shows the ACC approved the Meijers ’ fence and Goodman determined that the fence’s height complied with the guidelines. Accordingly, the Ullriches failed to show that the Meijer s ’ construction of the fence was a wrongful
act b ecause it includ ed a kickpla te and decorative top that made it taller than six feet

. See id. at 691

– 92; P inebrook Props., Ltd. v. Brookhaven Lake Prop. Owners Ass’n , 77 S.W.3d 487, 505

– 06 (Tex. App.

— Tex ar kana 2002 , pet. denied) ( holding trial court abused its discretion in entering injunction because there was no evidence of existence of wrongful act). T he evidence further shows that both parties’ fences violated the guidelines be cause the supporting sides did not face the interior of the properties. Thus, the balance of equities weighs against the imposition of an injunction concerning the fence in this case because the evidence shows that both11 parties’ fences failed to comply with the guidelines. See Lind en , 222 S.W.3d at 691 ; Park v. Escalera Ranch Owners’ Ass ’n , Inc. , 457 S.W. 3d 571, 597 (Tex . App.

— Austin 2015 , no pet. ) ( explain ing the doctrine of unclean hands allows a trial court to deny injunctive relief w he n the evidence show the plaintiff engaged in the same or similar conduct as that of the defendant). (citations omitted)

. Accordingly, the trial court did not abuse its discretion by concluding the balance of equities did not favor awarding an injunction. See Linden , 222 S.W.3d at 691 ; Beer e v. Duran , 985 S.W.2d 243 , 246

– 47 (Tex. App.

— Beaumont 199 9 , pet. denied ) (citation omitted)

. We overrule issue one. In issue two, the Ullriche s argue the trial court abused its discretion by not awarding them reasonable and necessary attorney’s fees when their trial counsel offered testimony that was clear, positive, direct , free of inaccuracies and suspicious circumstances, and uncontroverted. The Ullriches argued that section 37.009 of the
Tex as Civil Practice and Remedies Code specifies the trial court may award reasonable and necessary attorney’s fees as are just and equitable and that their attorney established their reasonable and necessary attorney’s fees as a matter of law

. See Tex. Civ. Prac. & Rem. Code Ann. § 37.009. We review an award or denial of attorney’s fee s under the Declaratory Judgments Act for an abuse of discretion. Forest Hills Improvement Ass’n , Inc. v. Flaim , No. 09

- 18

- 00199

- CV, 2019 WL 4493325 , at * 2 (Tex. App.

— Beaumont Sept.12 19, 2019 , no pet.) (mem. op.) Under the Declarator y Judgments Act, a trial court has broad discretion in deciding whether to award attorney’s fees. See Bocquet v. Herring , 972 S.W.2d 19, 20 (Tex. 1998) (citing Tex. Civ. Prac. & Rem. Code Ann. § 37.009) ; Anglo

- Dutch Petroleum Int’l, Inc. v. Greenberg Peden, P.C. , 522 S.W.3d 471, 494 (Tex. App.

— Houston [14th Dist.] 2016, pet. denied)

. A court may decide that fees should not be awarded if such an award would not be equitable and just in light of all the circumstances. See Flaim , 2019 WL 4493325 , at *2. The determination of whether an award of attorney’s fees would be equitable and just is not susceptible to direct proof but instead is a matter of fairness in the light of all the circumstances. Ang lo

- Dutch Petroleum Int’l, Inc. , 522 S.W.3d at 494

. Even if the evidence is uncontroverted that the attorney’s fees incurred are reasonable and necessary, a court may decide it is not equitable or just to a ward them. Flaim , 2019 WL 4493325, at *2 (citations omitted) . Additionally, s ince a n award of attorn ey’s fees is not dependent on a finding that a party has substantially prevailed , the trial
court is not required to award attorney’s fees to a prevailing party in a declaratory judgment. See i d. (citation omitted). The Ullriches had the burden of establishing the trial court abused its discretion in denying an award of attorney’s fees. See Sanchez v. AmeriCredit Fin. Servs., Inc. , 308 S.W.3d 521 , 526 (Tex. App.

— Dallas 2010, no pet.) (citations omitted). The trial cou rt heard Goodman testify that the Meijers were not in violation13 of the deed restrictions or guidelines. The trial court also considered Goodman’s testimony that both parties ’ fences violated the guidelines because the fences do not have any reinforcements facing the interior of the properties. The trial court also heard Conrad testify that he moved his storage shed as soon as he received notice from RPCIA that it is was too close to the Ullriches’ fence. On this record, we hold the trial court did not abuse its broad discretion by refusing to award attorney’s fees.
See id. ; Sunday Canyon Prop

. Owners Ass’n v. Annett , 978 S.W.2d 654 , 658

– 59 (Tex. App.

— Amarillo 1998, no pet. ) (concluding trial court did not err by not awarding either party attorney’s fees in a dispute over the enforceability of modified restrictive covenants). We overrule issue two. Having overruled both of the Ullrich es ’ issues, we affirm the trial court’s ju dgment.
AFFIRMED.

_________________________ W. SCOTT GOLEMON Chief Justice

Submitted on August 9, 2022 Opinion Delivered December 1, 2022 Before Golemon , C.J., Kreger and Horton, JJ.