COURT OF A PPEAL S EI GHTH D I STRI CT OF TEX AS ELPASO, TEXAS EMORY NASH, Appellant,

v. DENNI S PETERS , Appellee

. § § § § § § No. 08-07-00211- CV

Appea l from the County Court at L aw No. T hree of Tar rant County , Texas (TC#05-032431-3)

O P I N I O N This is an ap p ea l from a judgme nt rende red in favor of Appellee (De nnis Peters), the defe ndant below, on a suit broug ht by Appellant (Emory Nash) for enfor ceme nt of deed restric tions in a re sidential subdivisi on. We reve rse. BACK GR OUND Contending Pe t ers violated cer tain deed restric tions by maintaining junked car s on his proper ty and eng ag ing in improper trash burning , Nash filed suit in the J ustice Court. Peters denied the alleg ations, but a jury deter mined otherwise and found for Nash, aw arding him $3,500 in punitive damag es for

brea ch of the restric tive covena nt and $1,500 in attorney s’ fe es. Peters appea led the jury ’s verdic t to the County Court. Filing a second amende d petition, Nash also soug ht injunctive relief barr ing Peters’ further violation of the deed restric tions. Claiming that the County Cour t l acked jurisdiction to consider Nash’s contentions since Nash was seeking injunctive relief and could not prove any monetary damag es from Peters’ alleg ed brea ch of the deed restric t i o n s, Peters moved for summary judgme nt on traditional and no-evide nce g rounds. I n addition to responding to Peters’ summary -judg ment motion, Nash filed a motion to sever all cause sof ac tion that wer e not pled i n the J ustice C ourt. He also sought to seve r the injunctive a ctions as

the injunctive relief arose from the same core set of fac ts pled in the J ustice Court. The court g rante d a par tial summary

judgme nt to Peters and denie d Nash’s a ction for injunctive r elief. On J an u ary 24, 2007, Nash’s suit for brea ch of deed restric tions was tried to a jury in the County Court. The jury found that Peters violated the restric tive covena nt in question and awa

rded $20,262.50 in attorney s’ fee s. I n response , Peters moved for judgme nt in his favor

. The court ag ree d with Peters and rende red judgme nt that Nash take nothing, since he was not a preva iling party , and orde re d Na s h to pay the costs of the suit. After Nash’s motion for rehe aring was denied, he appea led. DISCUSSIO N Nash raises two issues on appea l. First, h e contends that the County Court abused its discretion by finding the J ustice Court lacke d jurisdiction to g rant him relief in the deed- enfor ceme nt suit, and second, that the County Court err ed in failing to g rant him attorney s’ fee s. The parties do not contest that Peters violated the deed restric tions, but rathe r whether Nash, having failed to plead monetary damag es or obtain injunctive r elief in the Justi ce Court, wa s a pre vailing pa rty

. The applicable statutes at issue are Section 27.034 of the Gover nment Code, which provides that a justice court h as co n current jurisdiction with district courts in suits to enfor ce residential subdivisions ’ dee d restric tions, and S ection 5.006 of t he Proper ty Code, which provide s that “[i] n

an action based on brea ch of a restric tive covena nt perta ining to rea l proper ty , the court shall allow to a preva iling party who asser ted the action rea sonable attorney ’s fee s in addition to the party ’s costs and claim.” T E X . P R O P . C O D E A N N . § 5.006(a) (Ve rnon 2004); T E X . G O V ’ T C O D E AN N . § 27.034(a) (Ve rnon 2004). Peters arg ues that only courts of rec ord can enter a decla ratory judgme nt and g rant injunctive relief

, and since justice courts a re not c ourts of rec ord, Peters conclude s that the J usticeCourt lacke d jurisdiction to enter a decla ratory judgme nt, and as such, could not have g rante d Nash the re quisite injunctive relief, thus fa iling to make N ash the pre vailing pa rty

. Peters is corr ect t h at a j u s t i ce court is not a court of rec ord. See W arren v. Barron Bros. Millinery Co. , 118 Tex. 659, 2 3 S

. W

. 2 d 6 8 6, 687 (1930); Healthelp Servs. Group, Inc. v. Iskc on Asset Managem ent , No. 14-97-01300- CV, 1999 WL 459770, at *2 (Tex. App.–Houston [14t h Dist.] J uly 8, 1999, rev. dism’d w.o.j.) (op., not desig nated for publication). Howeve r, we do not believe that a justice court lac k s t h e ab i lity to enter a decla ratory judgme nt when fac ed with a suit to deter mine whether restric tive covena nts have been violated. Although the g ener al rule is that only courts of a rec ord may rende r a decla ratory judgme nt, s ee T E X . C I V . P R A C . & R E M . C O D E A N N . § 37.003(a) (Ve rnon 2008), we believe that Section 27.034, a much more specific statute, inhere ntly g rants the justice court the ability to enter a decla ratory judgme nt in suits rela ting to the enfor ceme nt of a deed restriction. See Bala v. Maxwell, 909 S.W .2d 889, 892 (Tex. 1995); T E X . G O V ’ T C O D E AN N . § 311.026 (Ve rnon 2005) (spec ific statutes control over more g ener al statute). By specific ally g ranting the justice court jurisdiction in deed- enfor ceme nt suits, the justice court, in essenc e, must decla re the parties’ rig hts and status with respec t to the enforc ement of the deed r estrictions. We rec og nize that Section 27.034(j) states that a justice court may not g rant injunctive relief to a party ; howeve r, that does not mean that a justice court could not g rant a decla ratory judgme nt. T E X . G O V ’ T C O D E A N N . § 27.034(j). Fur

ther, ev en if we wer e to conclude that the J ustice Court lacke d the authority to enter a decla ratory judgme nt in this matter, that does not mean that the court lacke d jurisdiction to hear the case , much less that Nash, having failed to obtain injunctive relief , was not the prevailing party in his suit to enfor ce the deed v i o l at ions. Nor is there any require ment in such suits that the plaintiff must plead mo n et ar y d amage s to be labeled the preva iling party on a finding that a defe ndant violated a deed restric tion. Rather, the plaintiff simply must prove that thed ef

en d ant intended to do an act which would brea ch the deed restric tion or that the def en d an t violated the deed restric tion. Jim Rutherford I n vestme nts, Inc. v. Terramar Beac h Community Ass’n , 25 S.W .3d 845, 853 (T ex . Ap p . – Houston [14t h Dist.] 2000, pet. denied) ; Munson v. Milton , 948 S.W .2d 813, 815 (Tex. App.–San Antonio 1997, pet. denied)

. I f the court so finds, the plaintiff was the preva iling party

. See Briargrove Park Property Owners, Inc. v. Riner , 867 S.W .2d 58, 61 (Tex. App.–Texark an a 1 9 9 3 , writ denied) ; City of Houston v. Muse , 788 S.W .2d 419, 424 (Tex. App.–Houston [1st Dist.] 1990, no writ). And as the succe ssful prosec utor of the brea ch-of -dee d restric tion, the court must awa rd him attorney s’ fee s. T E X . P R O P . C O D E AN N . § 5.006 (a) ; Anderson

v. New Property Owners’ Ass’n of Newport, Inc ., 122 S.W .3d 378, 390 (Tex. App.–Texarkana 2003, pet. denied) ; Pebble Beac h Prop. Owners’ Ass’n v. Sherer , 2 S.W .3d 283, 291-92 (Tex. A pp.–San Antonio 1999, pet. denied) ; Inwood North Homeowne rs’ As s ’n , Inc. v. Meie r , 625 S.W .2d 742, 743-44 (Te x . Civ. App.–Houston [ 1st Dist.] 1981, no writ). Her e, the J ustice Court, by statute, had jurisdiction to hear Nash’s suit ag ains t Peters for violating the deed restric tions. See T E X . G O V ’ T C O D E AN N . § 27.034(a)

. Having rec eived a verdic t that Peters brea ched the restric tive covena nts in question, Nash was the preva iling party in his suit and entitled to rec over attorney ’s fee s. Jim Rutherford Inve stments, Inc. , 25 S.W .3d at 853; 1 Briargrove Park P roperty Owners, Inc. , 867 S.W .2d at 61; Muse , 788 S.W .2d at 424; Finkelstein

v. Southhampton Civic Club , 675 S.W .2d 271, 279 (Tex. App.–Houston [1st Dist.] 1984, writ ref ’d n.r.e.) . Acc ording ly , we sustain Na sh’s first and se cond issues. CONCLUSION We reve rse the County Court’s j u d gm en t and rende r judgme nt in favor of Nash as the preva iling party

. We further reinstate the jury ’s awa rd of attorney s’ fee s t o Na s h and rema nd the

P e t e r s d o e s n o t c o n t e n d t h a t t h e a t t o r n e y s ’ f e e s a w a r d e d b y t h e j u r y w e r e u n r e a s o n a b l e . 1cause to the County Court for proc eeding s consistent with this opi nion.

GUADA L UPE RI VERA, J ustice Dec ember

23, 2009 Be fore Chew, C.J ., McClure, a nd Rivera, JJ

.