Court of Appeals of Texas, Ninth District, Beaumont
Submitted on May 14, 2019
Appeal from the 1A District Court Jasper County, Texas Trial
Cause No. 33266
McKeithen, C.J., Kreger and Horton, JJ.
CHARLES KREGER JUSTICE
Hills Improvement Association, Inc. (the Association) filed a
declaratory judgment action against Richard Flaim and his
wife (the Flaims) to enforce a setback provision included in
the recorded deed restrictions for the subdivision. The
Association appeals the trial court's denial of its
attorney's fees in this declaratory judgment action. We
affirm the trial court's judgment.
matter is before us for a second time. See Forest Hills
Improvement Association, Inc. v. Flaim, No.
09-15-00478-CV, 2017 WL 5179968, at *1 (Tex.App.-Beaumont
Nov. 9, 2017, no pet.) (mem. op.). In 2001, the Flaims
obtained permission from the Association to pour a concrete
slab that extended within approximately two feet of their
rear property line, on which to park a boat. See id.
at *1. Some years later, the Association denied the
Flaims' request to construct a carport over the slab.
See id. The Flaims ultimately constructed the
carport without the written or express approval of the
Association. See id at *2. The Association filed a
declaratory judgment action against the Flaims seeking to
enforce a setback provision in the deed restrictions for the
Flaims' property. See id. at *1–2. The
Association also sought its attorney's fees pursuant to
section 37.009 of the Texas Civil Practices and Remedies
Code. See id. at *5; see also Tex. Civ.
Prac. & Rem. Code Ann. § 37.009 (West 2015).
initial appeal, the Association challenged the legal and
factual sufficiency of the evidence to support the trial
court's findings of fact and conclusions of law
underlying the theory that it waived its right to enforce the
deed restrictions against the Flaims. See Forest
Hills, 2017 WL 5179968, at *2. We reversed and remanded
with instructions that the trial court: (1) render an
appropriate declaratory judgment consistent with our opinion
that the Flaims' carport, as constructed, violated the
setback provisions of the deed restrictions; (2) grant any
relief, injunctive or otherwise, appropriate to the ordered
declaration; and (3) consider the Association's claim for
attorney's fees. See id. at *5.
Association's president testified in the hearing on
remand about the attorney fees the Association paid for
counsel. The trial court admitted the bills for the
Association's legal fees into evidence. The
Association's counsel testified the firm's fees were
reasonable and necessary, and the Flaims stipulated that the
Association's attorney fees were reasonable. The Flaims
presented no evidence at the hearing. However, the homeowners
argued that requiring them to pay the Association's
attorney's fees would be very burdensome because they are
elderly, on a fixed income and suffer from various medical
problems. Notably, the testimony reports that Mr. Flaim
suffers from early onset of dementia.
final declaratory judgment, the trial court denied the
Association's claim for attorney's fees, determining
that "each party shall bear their respective
attorney['s] fees[,]" but ordered the Flaims to pay
all court costs. Subsequently, the trial court issued
separate findings of fact and conclusions of law. The trial
court's findings of fact state that the Association filed
a declaratory judgment action pursuant to section 37.001 of
the Texas Civil Practices and Remedies Code, and the
Association's recovery of attorney's fees is not
mandatory. See Tex. Civ. Prac. & Rem. Code Ann.
§§ 37.001, 37.009 (West 2015). The trial
court's conclusions of law stated that attorney's
fees "on a Petition for Declaratory Judgment are
discretionary[,]" and the parties "should bear
their respective attorney's fees." The Association
complains on appeal that there is no evidence, or
alternatively, that the great weight and preponderance of the
evidence does not support the "finding" that each
party shall bear its respective attorney's fees, and the
"finding is an abuse of discretion[.]"
review an award or denial of attorney's fees under the
Declaratory Judgments Act for an abuse of discretion. See
Preston State Bank v. Willis, 443 S.W.3d 428, 434
(Tex.App.-Dallas 2014, pet. denied) (citation omitted). The
trial court has broad discretion in determining whether to
award fees in a declaratory judgment action, and we will not
reverse a trial court's decision absent a clear showing
of an abuse of discretion. See Oake v. Collin Cty.,
692 S.W.2d 454, 455 (Tex. 1985) (citations omitted).
declaratory judgment action, "the court may award costs
and reasonable and necessary attorney's fees as are
equitable and just." Tex. Civ. Prac. & Rem. Code
Ann. § 37.009; see also Bocquet v. Herring, 972
S.W.2d 19, 20 (Tex. 1998). The Declaratory Judgments Act
employs the word "may" in the statute, which
"affords the trial court a measure of discretion in
deciding whether to award attorney fees or not."
Bocquet, 972 S.W.2d at 20 (citations omitted).
Attorney's fee awards in declaratory judgment actions are
entrusted to the trial court's discretion, "subject
to the requirements that any fees awarded be reasonable and
necessary, which are matters of fact, and to the additional
requirements that fees be equitable and just, which are
matters of law." Id. at 21. A trial court may
not rule arbitrarily or without reference to guiding legal
principles, and it may not rule without supporting evidence.
Id. (citations omitted).
may determine that even fees shown to be reasonable and
necessary should not be awarded if such an award would not be
equitable and just. Id.; Kings River Trail
Ass'n, Inc. v. Pinehurst Trail Holdings, L.L.C., 447
S.W.3d 439, 451–52 (Tex.App.-Houston [14th Dist.] 2014,
pet. denied) (citations omitted). Whether it is
"equitable and just" to award less in
attorney's fees than a jury found was reasonable and
necessary is not a fact question, as such a determination is
not susceptible to direct proof; instead, it is a question of
"fairness in light of all the circumstances."
Ridge Oil Co. v. Guinn Investments, Inc., 148 S.W.3d
143, 162 (Tex. 2004); 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); see
also In re Estate of Kuykendall, 206 S.W.3d 766, 772
(Tex.App.-Texarkana 2006, no pet.) ("The trial
court's decision whether to award attorney's fees in
a declaratory judgment case depends on the court's
conclusion whether it is just and equitable to do so under
all the circumstances of the case, not on the quantum of
proof as to the amount incurred or the reasonableness and
necessity of such fees."). Even if stipulated or the
evidence is uncontroverted that the attorney's fees
incurred are reasonable and necessary, a court may decide it