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In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-21-00090-CV

__________________

JAMES A. ULLRICH AND JOAN ULLRICH, Appellants 

V.

CONRAD G. MEIJER AND LAURA B. MEIJER, Appellees 

__________________________________________________________________

On Appeal from the 457th District Court

Montgomery County, Texas

Trial Cause No. 19-12-16882-CV 

__________________________________________________________________

MEMORANDUM OPINION

In two issues on appeal, Appellants James A. Ullrich and Joan Ullrich (“the 

Ullriches”) complain the trial court abused its discretion by not awarding them 

declaratory and injunctive relief regarding the fence Appellees Conrad G. Meijer 

and Laura B. Meijer (“the Meijers”) constructed that allegedly violated restrictive 
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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 constructing a fence and an outbuilding that allegedly violated River Plantation’s 

Declaration of Restrictions (“deed restrictions”) and Architectural Control 

Guidelines (“the guidelines”) approved by the Architectural Control Committee

(“ACC”).2 In their live pleading, the Ullriches alleged that the Meijers constructed 

a fence without prior written application and approval of the ACC in violation of the 

deed restrictions, which statesthat no improvements can be made without written 

application and prior approval, and the guidelines, which limitsfences to a height of 

six feet and requires the support and bracing of the fence to face the interior of the 

fence owner’s lot. The Ullriches alleged the Meijers’ outbuilding violated the deed 

restrictions because they constructed it without a written application and prior 

approval and because it is nearer than ten feet from the side building lines, and also 

1The 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. 2The Ullriches also sued River Plantation Community Improvement 

Association and Crest Capital Management Co., but the Ullriches dismissed all 

claims against both defendants with prejudice. 
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violated the guidelines, which state that an outbuilding must be placed a minimum 

of five feet from any property line. 

The Ullriches requested damages due to the Meijers’ violations of the deed 

restrictions and guidelinesin accordance with section 202.004 of the Texas Property 

Code, a temporary and permanent injunction, and a declaratory judgment that the

parties’ properties are subject to the deed restrictions and guidelines and that the 

Meijers’ outbuilding and fence violated the deed restrictions and guidelines. 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 deed 

restrictions state that no building shall be located “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 “enforceable 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, 
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and alterations made to properties, including fences and outbuildings. The guidelines 

also state that all property owners are subject to the deed restrictions and guidelines, 

and the primary goal of the ACC is to review applications and plans to determine if 

the proposed improvement or modification complies with ACC’s standards and 

policies. The guidelines provide that all fences must comply with the building line 

requirements in the deed restrictions, and any fence intended for the purpose of 

privacy and/or security should be no greater than six feet in height with the 

maximum height of decorative columns being seven feet. The guideline also 

providesif wood fences are constructed so that reinforcing is visible on one side 

only, the side with visible reinforcing shall face the interior 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 the 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 peak of the 

roof is 10.4 feet, and the building is located less than ten feet from the Ullriches’ 

property and less than five feet from the rear property line. Loverdi also testified that 
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the Ullriches’ garage is less than ten feet from their 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 further 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 

buildings to be approved by the ACC. James also explained that the guidelines, 

which applied to both his and the Meijers’ 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’ association, 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 guidelines, 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 were ten feet from the property line. James testified that he 
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complained that theMeijers’ fence wastaller than six feet and that the reinforcement 

side does not face the interior of their lot, but he explained that 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 violations. 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 Ullriches 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 determine their compliance. Goodman 

testified that she received the Ullriches’ complaint and inspected the Meijers’ home 

and determined that RPCIA was not responsible for the fence issue because it was a 

neighbor-to-neighbor issue. Goodman testified that the Meijers had not applied for 

the outbuilding 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 homesthat are subject to the deed restrictions, and an outbuilding 

must be at least five feet away from a property line. Goodman testified that based on 
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her review of the Ullriches’ survey, the Meijers’ outbuilding appearsto be five feet 

from the property line. Goodman also testified that to her knowledge, the Meijers 

were not in violation ofthe deed restrictions or guidelines. 

Goodman explained the guidelines 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 she 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 their property. Goodman testified that 

both parties’ fences violated the guidelines. Goodman 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 complied “with what the RPCIA was asking 

of me.” Conrad further testified that he has no violations with RPCIA or the ACC. 

Conrad explained that he received ACC’s approval to build his fence, which is a sixfoot 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’ property line

and complies with the guidelines. Conrad agreed that his shed was less than five feet 

from his back property line. Conrad further testified that the shed’s building frame 
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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 skids to allow for drainage as 

required 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, the trial court declared the restrictive covenants and 

guidelines 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 Ullriches’ requested relief concerning the fence and 

attorney’s fees. The Ullriches filed a Motion for Reconsideration or Request for a 

Partial New Trialrequesting the trial court reconsider the deed restrictions regarding 

the fence and award of attorney’s fees because they prevailed on the issue concerning 

the Meijers’ outbuilding. The Ullriches’ motion was overruled by operation of law. 

ANALYSIS

In issue one, the Ullriches complain the trial court abused 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 guidelines. The Ullriches further argue there are no genuine issues of material 
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fact about the Meijers’ fence, as several witnesses testified the fence was taller than 

six feet and the support rails faced the Ullriches’ property. The Meijers argue the

trial court did not abuse its discretion by denying the Ullriches’ relief concerning the 

fence because they submitted ample evidence showing the deed restrictions do not 

contain any provisions regulating fencing, and the fence was approved by the ACC, 

which has exclusive jurisdiction to enforce the guidelines. The Meijers maintain that 

the Ullriches do not have any authority to enforce the guidelines. The Meijers also 

claim they established their unclean hands defense as a matter of law because the 

Ullriches’ demand concerned 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, 279-80 (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 existence 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 

an injunction is an equitable remedy, the trial court weighs the respective 

conveniences and hardships of the parties and balances the equities. Computek 
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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 law 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 has 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 Meijers’ construction of the fence was a wrongful 

act because it included a kickplate and decorative top that made it taller than six feet. 

See id.at 691–92; Pinebrook Props., Ltd. v. Brookhaven Lake Prop. Owners Ass’n, 

77 S.W.3d 487, 505–06 (Tex. App.—Texarkana 2002, pet. denied) (holding trial 

court abused its discretion in entering injunction because there was no evidence of 

existence of wrongful act). The evidence further shows that both parties’ fences 

violated the guidelines because 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 both 
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parties’ fences failed to comply with the guidelines. SeeLinden, 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.) (explaining the doctrine of unclean hands allows a trial court 

to deny injunctive relief when 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;Beere v. Duran, 985 

S.W.2d 243, 246–47 (Tex. App.—Beaumont 1999, pet. denied) (citation omitted). 

We overrule issue one. 

In issue two, the Ullriches 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 

Texas 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 fees 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. 
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19, 2019, no pet.) (mem. op.)Under the Declaratory 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. Anglo-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 award them. Flaim, 2019 

WL 4493325, at *2 (citations omitted). Additionally, since an award of attorney’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 id. (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 court heard Goodman testify that the Meijers were not in violation 
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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 

Ullriches’ issues, we affirm the trial court’s judgment. 

AFFIRMED.

_________________________

 W. SCOTT GOLEMON

 Chief Justice

Submitted on August 9, 2022

Opinion Delivered December 1, 2022

Before Golemon, C.J., Kreger and Horton, JJ.