### IN THE TENTH COURT OF APPEALS
No. 10 -21- 00323 -CV
DOROTHY GANTENBEIN & CHARLES FRICKE , Appellant s v. TONYA LACY, BOB BURNETT, ROXANNE BURNETT, WILL FAIR, CAROLYN FAIR, KURT HARWELL, & JENNIFER HARWELL , Appellee s

From the 1 70 th District Court McLennan County, Texas Trial Court No. 2021
- 1130 -4

MEMORANDUM OPINION

In six issues, A ppellants 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 20 2 1, t he 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 covenant s allow s them

to re nt 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

. A UTHORITY Ripeness is a threshold inquir y 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) . T he 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 , 35 3 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 Judgment s Act provides , “A person interested under a
deed .

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

. . an d obtain a decla ration of rights, status, or other legal relations
thereunder. ” T EX

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. & R EM

. C ODE A NN . § 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). Act ions under the Uniform Declaratory Judgment s 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, e ven if a litigant ’ s claims arise fr om 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).
D ISCUSSION The record reflects that t he Homeowners purchased the ir 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 nea rly 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 reflect s that s hortly after the re sidence was purchased , Fricke
told a neighbor that he planned to rent four bedrooms to SpaceX executives and that theGantenbein et al. v. Lacy et al. Page 4 rental income would be about $9,000 per month

. Further testimony reflect s 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 wa s 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 rent ing 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 i n 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 a wait 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 rent s to as many as thirteen
individuals

. Fricke acknowledged that the rentals together amount to a n enterprise
worth between ten and thirteen thousand dollar s per month and that the four properties are essentially boarding houses. Based on the record before us, this is not an instance in whi ch 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 violationGantenbein et al. v. Lacy et al. Page 5 of the restrictive covenants and ultimately confirmed th at they had engaged in similar conduct in other neighborhoods in the past. They had ignored multiple inquiries and objections from the Neighbors. Thus, b ecause a genuine controversy existed between the Neighbors and the Homeowners and because declaratory

- judgment proceedings may be used preventatively to determin e the r ights 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 k ind 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.
A UTHORITY In reviewing declaratory judgments , “W e 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 , 19 6 S.W.3d 218, 221 (Tex. App.

— Houston [1st Dist.] 2006, pet. denied) ; s ee also T EX

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. P RAC

. & R EM

. C ODE A NN

. § 37.010

. With respect toGantenbein et al. v. Lacy et al. Page 6 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 r estrictive covenants is subject to the general rules of contract
construction. Pilarcik v. Emmons , 966 S.W.2d 474, 478 (Tex. 1998). Thus, w hen 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

. “C ourts 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. ” Tar r , 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 restricti ve covenant may not be enlarged, extended, stretched, or changed by judicial interpretation

. Wilmoth , 734 S.W.2d at 657

. A dditionally, “ 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 T EX

. P ROP

. C ODE A NN

. § 202.003(a)

. D ISCUSSION We begin our analysis by determining the objective intent of the framers of the
restrictive covenant s 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 restrict ive

covenant s is ambiguous, and we agree. The first sentence of paragraph one states , “ A ll lots shall be used for residential purposes only.” Nowhere in the restric tions 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) , s ee also Tarr , 556 S.W.3d at 2 90

. The second sentence of p aragraph one stipulates , “ N o 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 oneGantenbein 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.” P aragraph two provides in part that “ [l] iving quarters on a residential
lot for other than th e 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 a ppear 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 a ttached 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. T urning to the common understanding of these terms at the
time the restrictive covenants were framed , we find that t he definition s for “ bona fide”
included “ made in good faith without fraud or deceit ,” “ made with earnest intent ,” and

“ neither specious no r counterfeit: [genuine]

. ” M ERRIAM
– W EBSTER ’ S C OLLEGIATE
D ICTIONARY 130 (1 0 th ed. 199 3)

. “ S ervant” 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 the se definition s 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 notGantenbein et al. v. Lacy et al. Page 9 rendered amb iguous solely because the application of ‘ its unquestionable meaning ’ to a
certain factual situation is ‘ uncertain ’ or ‘ vague. ’ ” Tarr , 556 S.W.3d at 2 9 0 (quoting
A NTONIN S CALIA & B RYAN A. G ARNER , R EADING L AW : T HE I NTERPRETATION OF L EGAL T EXTS
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 S CALIA 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
house hold employee ; and that “assistant” means one who assists

. Applying these definitions, w e 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 non

mem bers 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.” Th is argument is based on language from Southampton Civic Club v. C ouch , 322 S.W.2d 516 (Tex. 1958), which used the definition of

“ family ” from a 1935 dictionary

— “ a household, including parents, children , andGantenbein et al. v. Lacy et al. Page 10 servants, and, as the case may be, lodgers or boarders ”

— to interpret the phrase “single

family residence

. ” Yet s etting aside any historical meaning described in the common law,

t he definition s 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 uni t in society traditionally consisting of two parents rearing their own or adopted children.” M ERRIAM
– W EBSTER ’ S C OLLEGIATE
D ICTIONARY 419

– 420 (1 0 th ed. 199 3)

. We conclude the common understanding of “family” at the time the restrictions were drafted d id n ot include l odgers or boarders.
Because the se individuals are not included in that word as it was intended to be
understood , and because the restrictive covenants limit the use of l iving 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
issue s two and six.
Issue T hree The Homeowners contend that the trial court erred in granting injunctive relief in
favor of the N eighbors 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

.Gantenbein et al. v. Lacy et al. Page 11 A UTHORITY The Declaratory Judgment Act provides , “ F urther relief ,” including injunctive relief, “ based on a declaratory judgment or decree may be granted whenever necessary or proper.” See T EX

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. § 37.011. Under section 37.011 , “ A permanent injunction may be obtained when the ev idence 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 covenant s is required only to show that the opposing party intends to
commit an act that would breach the restrictive covenant s
. See Wies e , 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 per manent injunction for abuse of discretion. See Tanglewood Homes , 436 S.W.3d at 76.
D ISCUSSION 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

. W hen there is probative evidence to support
the trial court’s findings, they are binding on the reviewing court even if there isGantenbein et al. v. Lacy et al. Page 12 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 Re strictions.

• 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 Propert y 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, w e conclude that

t he trial court acted within its discretion in issuing the permanent injunction

. N early 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.Gantenbein et al. v. Lacy et al. Page 13 restrictive covenants. An d while Ficke at one point testified that he would await the outcome of the litigation before moving forward with the challen ged 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.
A UTHORITY

“ 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 qu otation 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.

— A ustin 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 prev ented

. Hitt v. Mabry , 687 S.W.2dGantenbein et al. v. Lacy et al. Page 14 791, 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

. D ISCUSSION The Homeowners raise two arguments contending that the relief afforded exceeds that sought. First, they complain that t he injunction appli es to “ successors and assignees ”
when that was language not requested by the Neighbors. But t he Neighbors ’ live petition requested an order that would enjoin and restrain the Homeowners “and as applicable, their agents, s ervants, 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. ” T EX

. R. C IV

. P . 683, s ee 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
pa rticipation with any of such persons or entities, and the successors and assign ees 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 ent ities might have been properly implied by law pursuant to the Rule

. See San Antonio Bar , 291Gantenbein et al. v. Lacy et al. Page 15 S.W.2d at 701

. Th us, the trial court did not abuse its discretion when it included “successor and assignees” in the permanent injunction

. Second, the Homeowners complain that t he Neighbors requested six points of injunctive relief and that the “ five granted by the court are comp letely 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 post ings 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 short

term 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 familyGantenbein 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 occupa ncy 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 fid e 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 Homeowner s 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 th at 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 non

family members” is a variance that grants relief beyond th at sought ; (3) that the court did not grant relief reques ted 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 reli ef beyond that sought ; and (6) that the court’s use of the phrase “using . . . as” in paragraphGantenbein et al. v. Lacy et al. Page 17 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
argumen ts 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. The y correctly acknowledge that the Declaratory Judgments Act authorizes s uch an award to the prevailing party, see T EX

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. § 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 eac h of the Homeowners’ preceding issues on appeal, we need not reach this conditional challenge. We therefore affirm the trial court’s judgment.

MATT JOHNSON JusticeGantenbein et al. v. Lacy et al. Page 18 Before Chief Justice Gray, Justice Johnson, and Justice Smith Affirmed Opinion delivered and filed J uly 26, 2023 [CV06}