IN THE

TENTH COURT OF APPEALS

No. 10-21-00323-CV 

DOROTHY GANTENBEIN &

CHARLES FRICKE, 

Appellants 

v.

TONYA LACY, BOB BURNETT, ROXANNE BURNETT, WILL FAIR, 

CAROLYN FAIR, KURT HARWELL, & JENNIFER HARWELL, 

 Appellees 

From the 170th District Court

McLennan County, Texas

Trial Court No. 2021-1130-4 

MEMORANDUM OPINION

In six issues, Appellants Dorothy Gantenbein and Charles Fricke (“the 

Homeowners”) appeal the trial court’s judgment granting declaratory and injunctive 

relief in favor of Appellees Tonya Lacy, Bob Burnett, Roxanne Burnett, Will Fair, Carolyn 

Fair, Kurt Harwell, and Jennifer Harwell (“the Neighbors”). We will affirm. 
Gantenbein et al. v. Lacy et al. Page 2

Factual Background

In 2021, the Neighbors sued the Homeowners seeking a declaration that the 

Homeowners’ alleged plan to rent rooms in their newly purchased residence would 

violate restrictive covenants applicable to the Stone Creek Ranch subdivision and sought 

to permanently enjoin the Homeowners’ plans. The Homeowners filed a counterclaim 

seeking declaratory judgment that the language of the restrictive covenants allows them 

to rent rooms if they wish to do so. After a bench trial, the trial court granted the relief 

requested by the Neighbors, including an award of attorneys’ fees. The Homeowners 

requested findings of fact and conclusions of law, which the court issued, and then timely 

perfected this appeal.

Issue One

In their first issue, the Homeowners contend that this dispute was not ripe for 

adjudication by the trial court.

AUTHORITY

Ripeness is a threshold inquiry regarding the justiciability of a dispute and turns 

on whether the aggrieved party has identified a concrete injury. Robinson v. Parker, 353 

S.W.3d 753, 756 (Tex. 2011). The Supreme Court of Texas has defined concrete injury as 

“an injury [that] has occurred or is likely to occur, rather than being contingent or 

remote.” Gibson, 22 S.W. at 851–52. In other words, a suit is not ripe when the concrete 

injury is solely dependent “on contingent or hypothetical facts, or upon events that have 

not yet come to pass.” Robinson, 353 S.W.3d at 756; see also Gibson, 22 S.W.3d at 852. 
Gantenbein et al. v. Lacy et al. Page 3

The Uniform Declaratory Judgments Act provides, “A person interested under a 

deed . . . may have determined any question of construction or validity arising under the 

instrument . . . and obtain a declaration of rights, status, or other legal relations 

thereunder.” TEX. CIV. PRAC. & REM. CODE ANN. § 37.004(a). A suit for declaratory 

judgment is proper where “it will serve a useful purpose or will terminate the 

controversy between the parties.” Bonham State Bank v. Beadle, 907 S.W.2d 465, 468 (Tex. 

1995). Actions under the Uniform Declaratory Judgments Act can be “a means of 

determining the parties’ rights when a controversy has arisen but before a wrong has 

been committed, and is preventative in nature.” Etan Indus., Inc. v. Lehmann, 359 S.W.3d 

620, 624 (Tex. 2011) (citation and internal quotation marks omitted). Thus, even if a 

litigant’s claims arise from possible uses of property, these claims are ripe once they “are 

inextricably tethered to a present disagreement between the parties” over the scope of 

any restrictions and alleged infringement thereof. Sw. Elec. Power Co. v. Lynch, 595 S.W.3d 

678, 684 (Tex. 2020). 

DISCUSSION

The record reflects that the Homeowners purchased their residence in the Stone 

Creek Ranch subdivision purportedly for the purpose of Gantenbein and Fricke residing 

there with Gantenbein’s elderly mother. The residence is nearly 7,000 square feet in size

and has seven bedrooms. One area is separate from the rest of the reisdence and contains

a suite of four bedrooms, each with its own bath, as well as a shared living area.

Testimony at trial reflects that shortly after the residence was purchased, Fricke 

told a neighbor that he planned to rent four bedrooms to SpaceX executives and that the 
Gantenbein et al. v. Lacy et al. Page 4

rental income would be about $9,000 per month. Further testimony reflects that Fricke 

told the neighbor that because of his contacts at SpaceX, he could advertise the rooms on 

a bulletin board there. A real estate agent who lives in the subdivision and represented 

the sellers of the residence testified that she learned of the Homeowners’ plan and wanted 

to stop the sale but was advised not to do so by her superiors. 

The Neighbors’ attorney dispatched a certified letter and a copy of the restrictive 

covenants to the Homeowners seeking assurances from the Homeowners that they had 

no intention of renting rooms in the residence. Fricke testified that he received the letter 

from the Neighbors’ attorney but, after consulting an attorney himself, did not respond. 

The Neighbors’ attorney dispatched a second certified letter, again raising concerns 

regarding any plans to rent rooms in the residence and informing the Homeowners that 

the Neighbors would “protect their interests utilizing all lawful remedies available.” 

Fricke conceded that he chose to ignore the second letter, too. 

While testifying, Fricke denied any specific intent or plan to rent his rooms, adding 

that he would await the outcome of the lawsuit, but Fricke also testified that he owns or 

co-owns four other properties in the Waco area and that he rents to as many as thirteen

individuals. Fricke acknowledged that the rentals together amount to an enterprise 

worth between ten and thirteen thousand dollars per month and that the four properties

are essentially boarding houses. 

Based on the record before us, this is not an instance in which the alleged grievance 

is “contingent” or “hypothetical”—to the contrary, by the time the Neighbors filed suit, 

the Homeowners had indicated their intent to move forward with the possible violation 
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of the restrictive covenants and ultimately confirmed that they had engaged in similar 

conduct in other neighborhoods in the past. They had ignored multiple inquiries and 

objections from the Neighbors. Thus, because a genuine controversy existed between the 

Neighbors and the Homeowners and because declaratory-judgment proceedings may be

used preventatively to determine the rights of litigants when a controversy has arisen but 

before a wrong has been committed, this case was ripe when filed in the trial court. See

Etan Indus., 359 S.W.3d at 624. We overrule the first issue.

Issues Two and Six

The Homeowners’ complaints in these two issues relate to the trial court’s 

interpretation of the restrictive covenants and the grant of declaratory relief. The 

pertinent portions of the restrictive covenants state:

1. All lots shall be used for residential purposes only. No 

building shall be erected, altered, placed, or permitted to 

remain on any lot other than one detached single-family 

dwelling and a private garage, and no existing structure of 

any kind will be permitted to be moved on any lot.

2. Living quarters on a residential lot for other than the family 

occupying the principal residence shall be used only for bona 

fide servants or assistants, and such living quarters shall be 

within the main residence or attached to rear of same.

AUTHORITY

In reviewing declaratory judgments, “We look to the procedure used to resolve 

the issue before the trial court to determine the standard of review on appeal.” City of 

Galveston v. Tex. Gen. Land Office, 196 S.W.3d 218, 221 (Tex. App.—Houston [1st Dist.] 

2006, pet. denied); see also TEX. CIV. PRAC. & REM. CODE ANN. § 37.010. With respect to 
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judgment rendered after a bench trial, we review the trial court’s factual findings for 

sufficiency of the evidence and review its conclusions of law, including any conclusions 

regarding the interpretation of a restrictive covenant, de novo. See Lynch, 595 S.W.3d at

683; Tarr v. Timberwood Park Owners Ass’n, Inc., 556 S.W.3d 274, 279 (Tex. 2018). 

“Unchallenged findings of fact are binding on a reviewing court unless the contrary is 

established as a matter of law or there is no evidence to support the findings.” City of 

Forth Worth v. Johnson, 105 S.W.3d 154, 172 (Tex. App.—Waco 2003, no pet.). “We will 

uphold the trial court’s determination in a declaratory[-]judgment action if it is 

sustainable upon any legal theory supported by the evidence.” Tanglewood Homes Ass'n, 

Inc. v. Feldman, 436 S.W.3d 48, 66 (Tex. App.—Houston [14th Dist.] 2014, pet. denied).

The interpretation of restrictive covenants is subject to the general rules of contract 

construction. Pilarcik v. Emmons, 966 S.W.2d 474, 478 (Tex. 1998). Thus, when construing 

a restrictive covenant, our primary task is to determine the objective intent of the framers 

of the restrictive covenant. Tarr, 556 S.W.3d at 280; Wilmoth v. Wilcox, 734 S.W.2d 656, 658 

(Tex. 1987). As with contracts, if the disputed language can be given a definite or certain 

meaning, it is unambiguous as a matter of law. Pilarcik, 966 S.W.2d at 478. On the other 

hand, if that language is susceptible to more than one reasonable interpretation, it is

ambiguous. Id. “Courts must examine the covenants as a whole in light of the 

circumstances present when the parties entered the agreement, giving the words used in 

the restrictive covenant . . . the meaning which they commonly held as of the date the 

covenant was written, and not as of some subsequent date.” Tarr, 556 S.W.3d at 280

(internal quotes and citations omitted); see also Wilmoth, 734 S.W.2d at 657–58. 
Gantenbein et al. v. Lacy et al. Page 7

Furthermore, words used in a restrictive covenant may not be enlarged, extended, 

stretched, or changed by judicial interpretation. Wilmoth, 734 S.W.2d at 657.

Additionally, “courts should avoid any construction that nullifies a restrictive covenant

provision.” Tarr, 556 S.W.3d at 280 (citations and internal quotation marks omitted). “If 

a restrictive covenant can be given definite legal meaning,” it “should be construed 

liberally to effectuate its intent.” Garrett v. Sympson, 523 S.W.3d 862, 866 (Tex. App.—Fort 

Worth 2017, pet. denied), see also TEX. PROP. CODE ANN. § 202.003(a).

DISCUSSION

We begin our analysis by determining the objective intent of the framers of the 

restrictive covenants as reflected by the language chosen. Tarr, 556 S.W.3d at 280. Neither 

the Homeowners nor the Neighbors contend that paragraph one of the restrictive 

covenants is ambiguous, and we agree. The first sentence of paragraph one states, “All 

lots shall be used for residential purposes only.” Nowhere in the restrictions is 

“residential purposes” defined. However, the Supreme Court of Texas has held that 

restrictions limiting property use to “residential purposes” merely require that the 

property be used for “living purposes” as distinguished from business or commercial 

purposes. See Stephenson v. Perlitz, 532 S.W.2d 954, 955 (Tex. 1976) (citations omitted), see

also Tarr, 556 S.W.3d at 290. The second sentence of paragraph one stipulates, “No 

building shall be erected, altered, placed or permitted to remain on any lot other than one 

detached single-family dwelling and a private garage, and no existing structure of any 

kind will be permitted to be moved on any lot.” As the parties recognize, paragraph one 
Gantenbein et al. v. Lacy et al. Page 8

unambiguously limits the development of any lot to one detached, single-family 

dwelling.

Appellants contend that paragraph two is ambiguous “and is therefore 

unenforceable.” Paragraph two provides in part that “[l]iving quarters on a residential 

lot for other than the family occupying the principal residence shall be used only for bona 

fide servants or assistants . . . .” This language governs the use of living quarters “for 

other than the family occupying the principal residence” and does not appear to restrict 

use of the living quarters for the family occupying the principal residence. The next 

phrase of the paragraph requires that living quarters for those other than the family 

occupying the principal residence “shall be within the main residence or attached to rear 

of same.”

The Homeowners argue that the language “bona fide servants or assistants” is 

ambiguous in that it is subject to more than one interpretation. These terms are not 

defined in the restrictions. Turning to the common understanding of these terms at the 

time the restrictive covenants were framed, we find that the definitions for “bona fide” 

included “made in good faith without fraud or deceit,” “made with earnest intent,” and 

“neither specious nor counterfeit: [genuine].” MERRIAM–WEBSTER’S COLLEGIATE 

DICTIONARY 130 (10th ed. 1993). “Servant” was defined as “one that serves others” and 

“one that performs duties about the person or home of a master or personal employer,” 

while “assistant” was defined as “a person who assists: [helper].” Id. at 70, 1070. And 

although these definitions may be broad and somewhat vague, that fact alone does not 

render the phrase ambiguous. As the Supreme Court of Texas explained, a term “is not 
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rendered ambiguous solely because the application of ‘its unquestionable meaning’ to a 

certain factual situation is ‘uncertain’ or ‘vague.’” Tarr, 556 S.W.3d at 290 (quoting 

ANTONIN SCALIA &BRYAN A.GARNER,READING LAW: THE INTERPRETATION OF LEGAL TEXTS

31–32 (2012)). “A word or phrase is ambiguous when the question is which of two or 

more meanings applies; it is vague when its unquestionable meaning has uncertain

application to various factual situations.” Id. (citing SCALIA at 31–32).

Employing these principles here, first with respect to the provision addressing

“bona fide servants or assistants,” the definitions generally contemplate that “bona fide” 

means something that is genuine, actual, and legitimate; that “servant” means a 

household employee; and that “assistant” means one who assists. Applying these 

definitions, we conclude that the provision is not ambiguous and applies to genuine, 

actual, and legitimate household employees and others who assist with duties within or 

about the residence. Accordingly, in light of the common understanding of the disputed 

phrases found by utilizing definitions from dictionaries in use at the time, the framers’ 

intent can be discerned from the plain language of paragraph two as prohibiting nonmembers of the family that occupies the primary residence from residing in that 

residence. 

The Homeowners argue that even if the second paragraph is not ambiguous and 

thus enforceable against them, “family” should be construed so as not to prohibit the 

“incidental lodging or boarding of occupants.” This argument is based on language from 

Southampton Civic Club v. Couch, 322 S.W.2d 516 (Tex. 1958), which used the definition of 

“family” from a 1935 dictionary—“a household, including parents, children, and 
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servants, and, as the case may be, lodgers or boarders”— to interpret the phrase “singlefamily residence.” Yet setting aside any historical meaning described in the common law, 

the definitions of “family” commonly used when the covenant at issue here was written

included “a group of individuals living under one roof and [usually] under one head,” 

“a group of persons of common ancestry,” “a people or group of peoples regarded as 

deriving from common stock,” and “the basic unit in society traditionally consisting of 

two parents rearing their own or adopted children.” MERRIAM–WEBSTER’S COLLEGIATE 

DICTIONARY 419–420 (10th ed. 1993). We conclude the common understanding of 

“family” at the time the restrictions were drafted did not include lodgers or boarders. 

Because these individuals are not included in that word as it was intended to be 

understood, and because the restrictive covenants limit the use of living quarters to only 

the family occupying the principal residence or its bona fide servants or assistants, the 

Homeowners’ proposed “incidental lodging or boarding” is not permitted. We overrule 

issues two and six.

Issue Three

The Homeowners contend that the trial court erred in granting injunctive relief in 

favor of the Neighbors because the law presumes that the Homeowners will recognize, 

respect, and comply with the declaratory judgment. See, e.g., Wilchester W. Concerned 

Homeowners LDEF, Inc. v. Wilchester W. Fund, Inc., 177 S.W.3d 552, 558 (Tex. App.—

Houston [1st Dist.] 2005, pet. denied); Howell v. Tex. Workers’ Comp. Comm’n, 143 S.W.3d 

416, 433 (Tex. App.—Austin 2004, pet. denied). They therefore reason that an injunction 

is available only upon a showing that the Homeowners will not do so.
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AUTHORITY

The Declaratory Judgment Act provides, “Further relief,” including injunctive 

relief, “based on a declaratory judgment or decree may be granted whenever necessary 

or proper.” See TEX. CIV. PRAC. & REM. CODE ANN. § 37.011. Under section 37.011, “A

permanent injunction may be obtained when the evidence establishes that a defendant 

will not comply with a declaratory judgment.” Shelton v. Kalbow, 489 S.W.3d 32, 48 (Tex. 

App.—Houston [14th Dist.] 2016, pet. denied); see State v. Anderson Courier Serv., 222 

S.W.3d 62, 66 (Tex. App.—Austin 2005, pet. denied) see also Tex. Educ. Agency v. Leeper, 

893 S.W.2d 432, 446 (Tex. 1994). A petitioner seeking permanent injunctive relief to 

enforce restrictive covenants is required only to show that the opposing party intends to 

commit an act that would breach the restrictive covenants. See Wiese, 384 S.W.3d at 399;

see also Letkeman v. Reyes, 299 S.W.3d 482, 486 (Tex. App.—Amarillo 2009, no pet.). We 

review the grant or denial of a permanent injunction for abuse of discretion.

See Tanglewood Homes, 436 S.W.3d at 76. 

DISCUSSION

In a bench trial, “the trial court, as fact finder, is the sole judge of the credibility of 

the witnesses.” Bell Helicopter Textron, Inc. v. Burnett, 552 S.W.3d 901, 913 (Tex. App.—

Fort Worth 2018, pet. denied). “The trial court may take into account all the surrounding 

facts and circumstances in connection with the testimony of each witness and accept or 

reject all or any part of that testimony.’” Id. When there is probative evidence to support 

the trial court’s findings, they are binding on the reviewing court even if there is 
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conflicting evidence suggesting different conclusions. Vannerson v. Vannerson, 857 

S.W.2d 659, 665 (Tex. App.—Houston [1st Dist.] 1993, writ denied).

In this case, the trial court issued the following relevant findings, which the 

Homeowners have not expressly challenged on appeal:

• Defendants intend to violate the Restrictions.1

• The actions and intentions of Defendants create a risk of 

imminent harm which will result in irreparable injury for 

which Plaintiffs have no adequate remedy at law.

• If injunction [is] not granted, Defendants will, and intend 

to, use the Subject Property in a manner that violates the 

Restrictions.

• Defendants[‘] intended actions include renting the Subject 

Property for purposes other than use by a family and bona 

fide servants and assistants.

• Defendants[‘] intended actions include allowing use of the 

living quarters on the Subject Property by other than 

family and bona fide servants and assistants.

• Defendants[‘] intended action constitute primarily use for 

a commercial purpose and financial gain which is not 

incidental to Defendants[‘] ownership of the subject 

Property.

Returning to the evidence set forth in our discussion of issue one, we conclude that 

the trial court acted within its discretion in issuing the permanent injunction. Nearly all 

the evidence admitted at trial supports the trial court’s findings that the Homeowners 

intended to use their residence in a manner that we have now held would violate the 

1 The trial court used “Defendants” to refer to the Homeowners and “Subject Property” to refer to what we have 

referred to as their residence.
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restrictive covenants. And while Ficke at one point testified that he would await the 

outcome of the litigation before moving forward with the challenged plans, the court, as 

the sole arbiter of the demeanor and credibility of witnesses, see Antolik v. Antolik, No. 06-

18-00096-CV, 2019 WL 2119646, at *3 (Tex. App.—Texarkana May 15, 2019, pet. denied)

(citing City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005)), was free to discount that 

testimony. We overrule issue three.

Issue Four

The Homeowners next argue that the trial court erred in granting injunctive relief 

beyond that requested by the Neighbors.

AUTHORITY

“In general, a permanent injunction must not grant relief which is not prayed for[,]

nor be more comprehensive or restrictive than justified by the pleadings, the evidence, 

and the usages of equity.” Holubec v. Brandenberger, 111 S.W.3d 32, 39 (Tex. 2003) (citation 

and internal quotation marks omitted). Litigants seeking a permanent injunction must 

be specific in pleading the relief sought, and courts are without authority to grant relief 

beyond that so specified in the pleadings. Shields v. State, 27 S.W.3d 267, 271 (Tex. App.—

Austin 2000, no pet.). Nevertheless, “a trial court has some latitude in fashioning the 

details of appropriate relief,” and some deference must be afforded to the trial court 

because of its “familiarity with the facts and the background of the dispute between the 

parties . . . .” Operation Rescue-Nat’l v. Planned Parenthood of Hous. & Se. Tex., Inc., 975 

S.W.2d 546, 560 (Tex. 1998). Moreover, an injunction should be broad enough to prevent 

a repetition of the harm sought to be corrected or prevented. Hitt v. Mabry, 687 S.W.2d 
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791, 795 (Tex. App.—San Antonio 1985, no writ) (citing San Antonio Bar Ass’n v. Guardian 

Abstract & Title Co., 291 S.W.2d 697, 702 (1956)). However, “[a] trial court’s discretion in 

fashioning the details of an injunctive provision does not extend to determining whether 

particular kinds of relief are justified.” Operation Rescue, 975 S.W.2d at 560. 

DISCUSSION

The Homeowners raise two arguments contending that the relief afforded exceeds 

that sought. First, they complain that the injunction applies to “successors and assignees”

when that was language not requested by the Neighbors. But the Neighbors’ live petition

requested an order that would enjoin and restrain the Homeowners “and as applicable, 

their agents, servants, employees, attorneys and any and all persons in active concert or 

participation with any of them . . . .“ Rule 683, which governs the “form and scope of 

[an] injunction or restraining order,” provides that an injunction is “binding only upon 

the parties to the action, their officers, agents, servants, employees, and attorneys, and 

upon those persons in active concert or participation with them who receive actual notice 

of the order by personal service or otherwise.” TEX. R. CIV. P. 683, see also San Antonio Bar,

291 S.W.2d at 701. The injunction’s language restrains and enjoins the Homeowners “and 

as applicable their respective, agents, servants, and all of those acting in active concert or 

participation with any of such persons or entities, and the successors and assignees of 

any of them.” Although the Neighbors may not have expressly requested that the trial 

court enjoin each of these groups of persons or entities, any of those groups or entities 

might have been properly implied by law pursuant to the Rule. See San Antonio Bar, 291 
Gantenbein et al. v. Lacy et al. Page 15

S.W.2d at 701. Thus, the trial court did not abuse its discretion when it included 

“successor and assignees” in the permanent injunction. 

Second, the Homeowners complain that the Neighbors requested six points of 

injunctive relief and that the “five granted by the court are completely different.” The 

Neighbors asked the court to enjoin the Homeowners from the following:

a) Using the Shady Trail Home for any purpose other than a 

single-family residence.

b) Renting one or more rooms in the Shady Trail Home other 

than as a single-family residence to any non-family persons, 

other than bona fide servants or assistants of the family 

occupying the residence.

c) Violating the restrictions imposed on the Shady Trial Home 

as to any use other than as single-family residence.

d) Except for the limited purpose of a long-term lease to a family 

unit and their bona fide assistants and servants, advertising 

the Shady Trail Home for lease in any manner, including but 

not limited to postings on the internet and/or social media, 

physical signage or postings in newspapers.

e) Renting the Shady Trail Home to a commercial enterprise or 

entity with the intent to use the Shady Trial Home as a shortterm rental or boarding house.

f) Participating in a timeshare or rent pool.

The final judgment ultimately granted injunctive relief from:

1. Using the Subject Property in any manner other than for 

residential purposes as allowed under the Restrictions, as 

determined herein[.]

2. Allowing occupancy of the Subject Property other than as a 

single-family residence to persons other than one set of family 
Gantenbein et al. v. Lacy et al. Page 16

members and the bona fide servants or assistants of that 

family occupying the residence.

3. Advertising the Subject Property for occupancy in any 

manner, including but not limited to postings on the internet 

and/or social media, physical signage, or postings in 

newspapers, for purposes other than as a single-family 

residence to persons other than one set of family members 

and the bona fide servants or assistants of that family 

occupying the residence.

4. Renting the Subject Property as a commercial or financial 

enterprise or entity with the intent to use the Subject Property 

as a short-term rental or boarding house.

5. Using the Subject Property as a timeshare or in a rental pool.

The Homeowners delineate the following arguments regarding this relief: (1) that 

the court’s use of the term “residential purposes” in paragraph 1 when the petition used 

the phrase “single-family residence” is a variance that grants relief beyond that sought; 

(2) that the court’s use of the terms “allowing occupancy” and “one set of family 

members” in paragraph 2 when the petition used the terms “renting” and “any nonfamily members” is a variance that grants relief beyond that sought; (3) that the court did 

not grant relief requested by the Neighbors in paragraph “c”; (4) that the court’s use of 

the terms “for purposes other than as a single-family residence to persons other than one 

set of family members” in paragraph 3 when the petition used the phrase “limited 

purposes of a long-term lease” in paragraph “d” is a variance that grants relief beyond 

that sought; (5) that the court’s use of the phrase “renting . . . to” in paragraph 4 when the 

petition used the phrase “renting . . . as” in paragraph “e” is a variance that grants relief 

beyond that sought; and (6) that the court’s use of the phrase “using . . . as” in paragraph 
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5 when the petition used the phrase “participating in” in paragraph “f” is a variance that 

grants relief beyond that sought. 

As already set forth, a trial court has latitude in crafting an injunction sufficient to 

alleviate the harm alleged. Operation Rescue, 975 S.W.2d at 560. We conclude that 

Homeowners’ arguments amount to little more than semantic complaints: those 

arguments do not identify excessive relief that amounts to an abuse of discretion, see 

Shields, 27 S.W.3d at 271, nor do they identify a “particular kind[ ] of relief” beyond the 

purview of what the trial court could grant, see Operation Rescue, 975 S.W.2d at 560. We 

overrule issue four.

Issue Five

In their final issue on appeal, Homeowners conditionally challenge the trial court’s 

award of attorneys’ fees, court costs, and interest. They correctly acknowledge that the 

Declaratory Judgments Act authorizes such an award to the prevailing party, see TEX. CIV.

PRAC. & REM. CODE ANN. § 37.009, and clarify that the only “issue presented for the 

Court’s consideration is who is the prevailing party that is entitled to attorney fees and 

costs.” Having overruled each of the Homeowners’ preceding issues on appeal, we need 

not reach this conditional challenge. We therefore affirm the trial court’s judgment.

MATT JOHNSON

Justice
Gantenbein et al. v. Lacy et al. Page 18

Before Chief Justice Gray,

Justice Johnson, and

Justice Smith

Affirmed

Opinion delivered and filed July 26, 2023

[CV06}