Opinion On Appellees’ Motion For Rehearing En Banc
RICKHOFF, Justice.
The motion for rehearing en banc filed by appellees Stone Oak, Inc., Hill Country Waterworks Co., and Hill Country S.A., Ltd. on March 31, 1997 is granted. Our opinion and judgment of February 28, 1997 are withdrawn, and this opinion and judgment are substituted.
Factual and Procedural History
Appellant, Donald E. Ghidoni (“Ghidoni”), appeals from a judgment entered in a suit involving a dispute over the rights to a portion of real property (lots 183, 184B, and 185B) located at or near 107 Bitters Road and U.S. Highway 281 in San Antonio, Bexar County, Texas (the “Property”). The dispute giving rise to the litigation underlying this appeal was the second dispute between the parties regarding the Property.
The crux of the first dispute was Ghidoni’s right of first refusal to purchase the Property. Our record does not contain the documentation evidencing this right, but from other documentation in our record, we discern that the right of first refusal was granted in a lease (the “Ghidoni Lease”) dated August 26, 1982, between the Tomerlin Estate, Clare Joy Campbell and Lori Jane Campbell, as lessors (collectively referred to herein as the “Campbells”), and Ghidoni, as lessee. On February 11, 1983, the Camp-bells entered into a second lease with Stone Oak (the “Campbell Lease”). The Campbell Lease appears to be for the same property; however, the Campbell Lease states that the lease is for “Lots 183 and those portions of 184B and 185B, not covered by” the Ghidoni Lease. In any event, the dispute regarding Ghidoni’s right of first refusal resulted in a suit filed by Ghidoni against the Campbells and Stone Oak. This suit was settled on September 17, 1984, with the execution of a Compromise Settlement Agreement by Ghi-doni, Stone Oak and the Campbells (the “CSA”).
Under the terms of the CSA, Stone Oak continued to lease the Property from the Campbells; however, Stone Oak subleased all the Property to Ghidoni with the exception of three water well sites and certain easements. In addition, Stone Oak assigned its option to purchase the Property under the Campbell Lease to Ghidoni. In the event Ghidoni exercised the option, the CSA provided that he would become the Lessor under the terms of the Campbell Lease, and the property leased to Stone Oak would be limited to three water well sites and easements. The CSA also required Stone Oak to arrange for the company operating the water wells (which at the time of the CSA was Hill Country Water Works, Inc. (“HCWW’)) to provide Ghidoni with 2,500,000 gallons of water each year at no charge. Finally, the CSA provided that Stone Oak could place no more than three water wells on the Property and required that the water wells comply with all Texas statutes, rules and regulations and not generate noise in excess of 50 decibels measured at the well site perimeter.
On December 17, 1986, Ghidoni exercised his option to purchase the Property. On February 15, 1991, Ghidoni and his wife, Nancy J. Ghidoni-Meehan (“Meehan”), were divorced. The divorce decree provided that they would be tenants in common in the [577]*577Property. In addition, the divorce decree separately provided that “all assignments of water leases are to be divided evenly between the parties. Such water leases are with Stone Oak.” Ghidoni was named manager of the Property, and Meehan was to provide Ghidoni with a right of first refusal on the Property. On February 19, 1991, Mee-han conveyed her interest in the Property to Ghidoni by special warranty deed.
On March 9, 1992, Ghidoni notified Stone Oak in writing that the noise from the well motor was in excess of the agreed noise level. Thereafter, Ghidoni hired an attorney who sent a second letter on June 9,1992 notifying Stone Oak of the noise violation. The letter states:
This [noise] covenant in the settlement agreement was incorporated into the lease and in my opinion a violation of this covenant is grounds for termination of the lease_ My client is currently contemplating whether he will exercise his right to terminate the lease based upon the breach of this covenant and will be in contact with you shortly regarding his decision. However, he is asserting his right to place you on notice that you are in breach of the covenant contained within the lease and is not hereby intending to waive his rights to terminate the lease based upon this breach.
On July 10, 1992, Stone Oak responded to Ghidoni’s second letter stating that it was in the process of investigating the allegations and would respond upon completion of the investigation. The letter further states that landscaping had been undertaken in an effort to muffle the sound of the pump motor. In addition, the letter states that arrangements had been made to have the pump motor reworked to reduce the noise level and estimated that the work would be completed within 10 days to two weeks. Finally, the letter asserts that “[f]or purposes of this letter, the ‘contract’ means that certain Compromise Settlement Agreement dated September 17, 1984 between [the Campbells, Stone Oak and Ghidoni].”
On September 9, 1992, Ghidoni’s attorney sent Stone Oak written notice of termination of the Campbell Lease. The notice states that the June 9,1992 letter had placed Stone Oak on notice of its default under the lease which gave Stone Oak fourteen days in which to cure the default. The notice further states that additional noise level tests were conducted on August 17, 1992, and it was determined that the wells were operating in the range of 88-85 decibels. Therefore, since the default was not cured within fourteen days from June 9, 1992, Ghidoni was terminating the lease effective September 18, 1992.
On September 16,1992, Stone Oak’s attorney responded to Ghidoni’s letter referencing an earlier conversation. The letter states that Stone Oak was unable to have the pump reworked in the time frame given in its July 10, 1992 letter because of scheduling problems and the high use of water in the months of July, August and September making maintenance difficult without impeding the pumping of water for the customers of HCWW. The letter further states that the pump motor would be reworked by September 18, 1992 after which noise level tests would be taken to determine whether additional steps were necessary to reduce the noise level. The letter concludes with a request that Ghi-doni forbear from terminating the lease in order to reach an acceptable resolution.
On November 12,1992, Ghidoni sent Stone Oak a letter reiterating that the lease had been terminated effective September 18, 1992, invoicing Stone Oak for equipment storage charges, and demanding payment for water withdrawn since September 19, 1992. Stone Oak replied by letter dated November 19, 1992, wherein Stone Oak states: “our position in this entire matter has been and continues to be that Stone Oak, Inc. is not in default under the Lease and as a result your attempts to terminate the same are of no force or effect from our standpoint.” Stone Oak’s letter further states that Stone Oak had contracted for the construction of a building around the well site to be completed within 60 days. This building was completed in December of 1992.
On December 12, 1992, HCWW employees discovered that a new lock had been installed on the gate to the Property, thereby preventing their access to the water wells. The [578]*578lawsuit underlying this appeal was then filed on December 22, 1992. On the same day, a temporary restraining order was issued by the trial court enjoining Ghidoni from taking any action to restrict or prevent Stone Oak’s access to the Property or the wells pending further order of the court. On March 1, 1993, Ghidoni filed his original answer and counterclaims for breach of contract arising from the noise level default and for damages based on the value of the water removed after the lease was allegedly terminated.
On June 18, 1993, Meehan (Ghidoni’s ex-wife) filed a plea in intervention in the suit filed by Stone Oak claiming an interest in the Property and the Campbell Lease based on the divorce decree. On July 30, 1993, Hill Country, S.A. Ltd. (“HCSA”) also intervened in the lawsuit stating that it had purchased the assets of Stone Oak and HCWW, including Stone Oak’s rights under the Campbell Lease.
On August 23, 1993, Ghidoni sent written notice to Stone Oak and HCSA that they were in default under the lease for failure to comply with all laws, rules and ordinances of federal, state, and municipal governments. Specifically, Ghidoni asserted that Stone Oak and HCSA were in violation of a Texas regulation requiring them to have a sanitary control easement around the water well locations. On October 4, 1993, Ghidoni notified Stone Oak and HCSA that the lease had been canceled for failure to cure the default referenced in the August 23, 1993 letter.
On October 15,1993, HCSA sent Ghidoni a letter stating that it was renewing its request that Ghidoni agree to grant HCSA a sanitary control easement. This letter was apparently in response to Ghidoni’s termination letter and a notice from the Texas Natural Resource Conservation Commission (“TNRCC”) that Stone Oak needed to take remedial measures to correct certain deficiencies in the operation of the water wells, including obtaining a sanitary control easement. On November 22, 1993, HCSA sent Ghidoni a second request enclosing the documentation necessary to grant the sanitary control easement. On January 1,1994, HCSA’s attorney sent Ghidoni a letter demanding that Ghidoni provide “a written response by Thursday, January 27, 1994, stating specifically as to whether Mr. Ghidoni will grant to HCSA a sanitary control easement and under what conditions.” On January 25, 1994, Ghidoni responded to HCSA’s demand by offering to grant the easement for the sum of $5,000,000. On January 27, 1994, HCSA sent Ghidoni a letter rejecting his offer as unreasonable but stating that HCSA would be willing to consider a reasonable offer.
By letter dated February 3, 1994, HCSA notified the TNRCC of the foregoing negotiations. In response, the TNRCC notified HCSA that it would allow the continued use of the wells in the absence of the sanitary control easement provided that HCSA collect certain water samples for analysis and take further measures if the test results so dictated. Ghidoni then amended his answer and counterclaims to assert claims relating to the failure to obtain the sanitary control easements.
The parties went to trial on August 15, 1994. Ghidoni appeals from the judgment rendered therein and raises eighteen points of error. We will address the points in the order raised.
Motion To Disqualify
In his first point of error, Ghidoni contends the trial court abused its discretion in denying his motion to disqualify the law firm of Wheatley & Sharpe from representing HCSA. Ghidoni’s contention rests on his allegations that he disclosed confidences regarding the . suit underlying the instant appeal when he consulted with Wheatley & Sharpe to request representation in another matter. Therefore, Ghidoni concludes that Wheatley & Sharpe should have been disqualified from representing HCSA based on information allegedly disclosed in the preliminary consultation regarding the possible retention of the firm to represent Ghidoni in the other matter.
The first issue generally addressed by the Texas Supreme Court in reviewing questions relating to attorney disqualification based on prior access to confidences is whether the action in which disqualification is sought is substantially related to the matter [579]*579in which the confidences were allegedly disclosed. See, e.g., National Medical Enterprises, Inc. v. Godbey, 924 S.W.2d 123, 129 (Tex.1996)(addressing substantial relationship issue before analyzing attorney’s duty to preserve confidences based on nature of prior relationship with movant); NCNB Texas National Bank v. Coker, 765 S.W.2d 398, 399-400 (Tex.1989). In order to prove a substantial relationship between two matters, the movant must produce “evidence of specific similarities capable of being recited in the disqualification order.” Coker, 765 S.W.2d at 400. “Mere allegations of unethical conduct or evidence showing a remote possibility of a violation of the disciplinary rules will not suffice under this standard.” Spears v. Fourth Court of Appeals, 797 S.W.2d 654, 656 (Tex.1990). Furthermore, the movant may not rely upon conclusory statements but must “provide the trial court with sufficient information so that it can engage in a painstaking analysis of the facts.” J.K. & Susie L. Wadley Research Inst. & Blood Bank v. Morris, 776 S.W.2d 271, 278 (Tex.App.—Dallas 1989, orig. proceeding). “While a movant need not divulge any confidences, he must delineate with specificity the subject matter, issues and causes of action presented in [the] former representation.” Id.
“Disqualification is a severe remedy.” Spears, 797 S.W.2d at 656. In view of this severity and to discourage the use of motions to disqualify as a dilatory trial tactic, trial courts are required to “strictly adhere to an exacting standard when considering such motions.” Coker, 765 S.W.2d at 400; see also Spears, 797 S.W.2d at 656. A trial court will only be reversed for refusing to order disqualification if it abuses its discretion. Spears, 797 S.W.2d at 656. Therefore, in reviewing the trial court’s ruling, we must determine “whether the trial court acted without reference to any guiding rules or principles, or acted in an arbitrary or unreasonable manner.” Metropolitan Life Ins. Co. v. Syntek Finance Corp., 881 S.W.2d 319, 321 (Tex.1994). We may not substitute our judgment for that of the trial court, and in resolving factual issues, we will reverse the trial court only if we determine the trial court could have made but one decision. Id.; Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992); Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex.1985); J.K. & Susie L. Wadley Research Inst. & Blood Bank v. Morris, 776 S.W.2d at 280.
At the disqualification hearing, Ghidoni testified that he met with Mike Duffey, a member of the Wheatley & Sharpe law firm, in May of 1993. Ghidoni stated that he contacted the Wheatley & Sharpe firm because he was interested both in pursuing an inverse condemnation suit against Hill Country Village relating to a zoning dispute involving the Property and in changing attorneys in the Stone Oak suit. Ghidoni further testified that he discussed the specifies of the Stone Oak matter with Duffey and the strategy Ghidoni intended to pursue in that suit.
Duffey also testified at the hearing. Duf-fey denied that he discussed any strategies relating to the Stone Oak case with Ghidoni.
Within a few weeks after the meeting between Duffey and Ghidoni, Duffey notified Ghidoni by letter dated June 3,1993 that the Wheatley & Sharpe firm was declining the representation. All the documents retained by Duffey were returned to Ghidoni in that letter. Although Duffey admitted that Ghi-doni brought a folder of documents to the meeting, Duffey stated that he only reviewed and copied documents relating to the zoning/inverse condemnation case.3 Ghidoni, on [580]*580the other hand, asserted that other documents were discussed relating to the Stone Oak litigation. Wheatley & Sharpe was subsequently retained to represent HCSA in the Stone Oak litigation.
In view of the conflicting evidence presented at the disqualification hearing, we are unable to hold that the trial court abused its discretion in denying the motion to disqualify. The attorneys argued the proper standards, including the requisite substantial relationship requirement, at the hearing. Before making its ruling, the trial court posed the following questions:
THE COURT: What — could you recall for me what evidence there was of a confidential nature specifically?
MR. WALLIS: I believe Mr. Ghidoni testified that he told them specifically how he intended to handle the case with Stone Oak, what he wanted out of the ease, or what he wanted to accomplish, the strategy that he hoped to use to accomplish that.
THE COURT: And what was that?
MR. WALLIS: I don’t think that was stated specifically.
Therefore, it appears from the record that the trial court was acting in reference to the applicable guiding rules and principles. See Metropolitan Life Ins. Co. v. Syntek Finance Corp., 881 S.W.2d at 321. In view of the conflicting testimony presented, we are unable to conclude that the trial court could have reached only one decision in resolving the substantial relationship issue. Ghidoni’s first point of error is overruled.
Modification of Campbell Lease
In his second through sixth points of error, Ghidoni raises various complaints regarding the manner in which the trial court submitted the issue of whether the CSA modified the Campbell Lease.
Ghidoni initially contends that the issue regarding modification was a question of law to be resolved by the trial court. However, Ghidoni’s contention is contrary to existing Texas Supreme Court precedent which states that “[wjhether a contract has been modified depends on the parties’ intentions and is a question of fact.” Hathaway v. General Mills, Inc., 711 S.W.2d 227, 228-29 (Tex.1986); see also Adams v. Valley Federal Credit Union, 848 S.W.2d 182, 189 (Tex. App.—Corpus Christi 1992, writ denied); Greenbelt Electric Cooperative, Inc. v. Johnson, 608 S.W.2d 320, 324 n. 7 (Tex.Civ.App.— Amarillo 1980, no writ). Ghidoni does not refer to Hathaway in his brief to provide any reason for this court’s rejection of the holding therein, and we can discern no rational basis for refusing to follow the Hathaway holding.4
[581]*581In the alternative, Ghidoni contends that the jury question relating to the modification issue misstated the law, or if the question was properly submitted, Ghidoni complains that the jury’s answer was against the great weight and preponderance of the evidence.
The burden of proving that a contract has been modified is on the party asserting modification. Adams, 848 S.W.2d at 189. The party asserting contractual modification must prove that the other party had notice of the change and that the change was accepted. Hathaway, 711 S.W.2d at 229; Adams, 848 S.W.2d at 189; Greenbelt Electric Cooperative, Inc. v. Johnson, 608 S.W.2d at 324 n. 7. In order to prove that the other party had notice of the change, it must be shown that the other party had knowledge of the nature of the change. Hathaway, 711 S.W.2d at 229; Greenbelt Electric Cooperative, Inc. v. Johnson, 608 S.W.2d at 324 n. 7.
The trial court submitted the following question regarding modification:
QUESTION NO. 1
Did the Compromise and Settlement Agreement modify the Lease?
You are instructed that in order to find that the CSA changed or modified the Lease that Ghidoni must prove from the evidence that:
1. The Stone Oak Plaintiffs knew that the 50 decibel level limitation was to be subject to the default clause of the Lease, and
2. The Stone Oak Plaintiffs accepted the modification based on such knowledge.
You are further instructed that merely because one party to the alleged change or modification agreed to it is not sufficient evidence, standing alone for you to answer that such change or modification occurred.
A comparison of the question as submitted and the aforecited precedent reveals that the question properly sets forth the elements Ghidoni was required to prove. Therefore, the jury question did not misstate the law.
With regard to the jury’s failure to find in favor of Ghidoni regarding modification, the letters introduced into evidence relating to the noise level dispute present the parties’ conflicting views regarding the modification issue. Although Ghidoni’s letters assert that the noise level requirement was incorporated into the Campbell Lease, thereby making it subject to the default provisions therein, Stone Oak’s letters reflect its understanding that the noise level requirement had not become a part of the Campbell Lease. Where conflicting evidence is presented regarding an issue, we are not called upon to reweigh the evidence; thus, the jury’s verdict on such matters is generally considered to be conclusive. Sanchez v. Guerrero, 885 S.W.2d 487, 491 (Tex.App.—El Paso 1994, no writ); Carney v. Roberts Inv. Co., 837 S.W.2d 206, 210 (Tex.App.—Tyler 1992, writ denied); see generally William Powers, Jr. & Jack Rat-cliff, Another Look at “No Evidence ” and “Insufficient Evidence,” 69 Tex. L. Rev. 515, 525-26 (1991). In view of the conflicting evidence presented at trial, we will not disturb the jury’s finding.
Ghidoni’s second through sixth points of error are overruled.
Breach of Contract Absent Modification
In his seventh point of error, Ghido-ni contends that the trial court erred in denying his motion for new trial because Ghidoni was entitled to have the jury consider his claims for breach of the CSA by excessive noise levels and breach of the Campbell Lease by failure to comply with state law regardless of whether the CSA modified the Campbell Lease. With regard to Ghidoni’s contention that he was entitled to an issue regarding a breach of the CSA regardless of whether the CSA modified the Campbell Lease, we note that Ghidoni did not request an issue regarding breach of the CSA independent of an asserted breach of the “original or modified lease.” We further note that Ghidoni only pled that the “Ghidoni Lease” was breached by Stone Oak’s operation of the water wells in excess of the noise level requirement. Therefore, we hold Ghi-doni waived his right to assert this contention.
With respect to Ghidoni’s assertion that he was entitled to an issue regarding the [582]*582breach of the Campbell Lease based on the failure of Stone Oak and HCSA to comply ■with state law, we initially note that Ghido-ni’s pleadings do not support this assertion. Ghidoni pled that the “Ghidoni Lease” was breached by the failure to comply with state law. Ghidoni’s pleading defines the “Ghidoni Lease” as the Campbell Lease, as modified by the CSA. Furthermore, even if we assume that the issue was properly pled and the trial court erred in refusing to submit the issue regarding breach of the Campbell Lease, we find such error would be harmless.
Jury charge error is only reversible if, in light of the entire record, the error was' reasonably calculated to cause and probably did cause the rendition of an improper judgment. Tex.R.App. P. 81(b)(1); Reinhart v. Young, 906 S.W.2d 471, 473 (Tex.1995); Island Recreational Development Corp. v. Republic of Texas Savings Ass’n, 710 S.W.2d 551, 555 (Tex.1986). Although the trial court did not submit an issue regarding whether the Campbell Lease was breached by the failure to comply with state law, the following question was submitted which the jury answered in the affirmative:
Do you find from a preponderance of the evidence that under the Lease, HCSA complied with all the laws, statutes, rules and regulations of the State of Texas and its agencies regarding a sanitary control easement on the Property?
By finding that HCSA complied with the laws regarding the sanitary control easement, the jury necessarily concluded that HCSA complied with the provisions of the Campbell Lease requiring such compliance. Therefore, any error in failing to submit an issue regarding HCSA’s failure to comply with the original lease was rendered immaterial and harmless by the jury’s response to the defensive issue. Cf. City of Brownsville v. Alvarado, 897 S.W.2d 750, 752 (Tex.1995).
Ghidoni’s seventh point of error is overruled.
Compliance with State Law
In his eighth point of error, Ghidoni contends the trial court erred in denying his motion for new trial because the evidence is factually insufficient to support the jury’s finding to question number 10. Question number 10 inquired whether HCSA complied with the applicable laws relating to the sanitary control easement.
In addressing a factual sufficiency challenge, we are required to review all of the evidence; however, we may not pass on the credibility of the witnesses or the weight given their testimony, and we may not interfere with the jury’s resolution of conflicts in the evidence. Lawson-Avila Constr., Inc. v. Stoutamire, 791 S.W.2d 584, 594 (Tex.App.— San Antonio 1990, writ denied). The evidence in this case primarily consists of the letters relating to the negotiation of the sanitary control easement between Ghidoni and HCSA At the conclusion of these negotiations, the TNRCC notified HCSA that it would allow the continued use of the wells in the absence of the sanitary control easement provided that HCSA collected certain water samples for analysis and take further measures if the test results so dictated. HCSA’s expert testified that the effect of the TNRCC was to grant HCSA an exception to the sanitary control easement requirement and that the granting of such an exception was permissible under the regulations. Ghidoni did not present any evidence to contradict the expert’s opinion. Based on the foregoing, we find the evidence was sufficient to support the jury’s finding and overrule Ghi-doni’s eighth point of error.
Injunction
Ghidoni’s ninth and tenth points of error relate to the permanent injunction entered against Ghidoni. Under these points of error, Ghidoni raises various arguments relating to the contractual modification issue and HCSA’s compliance with state law. In addition, Ghidoni also complains that the evidence supporting the jury’s finding regarding his continued threat to the operation of the wells was factually insufficient based on his argument that the record conclusively establishes that he had the right to terminate HCSA’s access to the Property for breach of the lease covenants. For the reasons previously given in addressing the modification and state law compliance issues, we reject these arguments.
[583]*583Ghidoni also contends that the permanent injunction is overly broad and enjoins him from activities which are a lawful and proper exercise of his rights. Specifically, Ghidoni asserts:
A permanent injunction has been entered in favor of HCSA, who holds possession of the land only by way of a lease. The owner of the land and lessor Ghidoni is forbidden to interfere with HCSA’s possession of the property even though there are numerous covenants in the lease, which could be breached at any time and would entitle him to terminate the lease.
Ghidoni is correct that an injunction cannot be so broad as to prevent a defendant from exercising his legal rights. See Kulkarni v. Braeburn Valley West Civic Ass ’n, Inc., 880 S.W.2d 277, 278 (Tex.App.— Houston [14th Dist.] 1994, no writ); Hitt v. Mabry, 687 S.W.2d 791, 796 (Tex.App.—San Antonio 1985, no writ). The injunction contained in the judgment provides as follows:
IT IS FURTHER ORDERED that the oral issuance of a permanent injunction on August 22,1994, is ratified and reaffirmed, and a permanent injunction is hereby issued such that Donald E. Ghidoni, or any person or entity acting in concert with him, including but not limited to his attorneys, agents, servants, employees, successors, heirs and assigns, be and hereby are commanded forthwith to permanently and perpetually desist and refrain and are permanently and perpetually restrained from 1) directly or indirectly restricting or preventing access to HCSA, its agents, employees, servants, successors and assigns to the property (as defined as encompassing the area of 30 feet by 30 feet around each of the three water well areas on Lots 183 and 184r-B, County Block 5833E, Hill Country Estates, Unit 4, Bexar County, Texas and all easements for HCSA’s ingress and egress and for all legal purposes pertaining to these well areas) or 2) in any way interfering with the use of the aforesaid property, pursuant to the Lease, by HCSA, its agents, employees, servants, successors and assigns.
Although the second prohibition limits HCSA’s continued use of the property to use “pursuant to the Lease,” the first prohibition is not similarly restricted. Since Ghidoni has a legal right to restrict HCSA’s access to that provided under the “Lease,” the first prohibition is overly broad. Accordingly, we modify the first prohibition of the injunction and limit the restraint to prohibit Ghidoni from directly or indirectly restricting or preventing access “pursuant to the Lease” to HCSA.
DECLARATORY JUDGMENT
In his eleventh point of error, Ghido-ni contends the trial court erred in granting HCSA declaratory relief because the request for relief was rendered moot by Ghidoni’s counterclaim. We reject Ghidoni’s contention.
Stone Oak filed an original petition seeking a declaratory judgment regarding its rights under the Campbell Lease which were subsequently assigned to HCSA. Ghidoni in essence asserts that he could and did render the request for declaratory relief “moot” by filing a counterclaim involving the same issues. While the counterclaim may shift the burden of proof and affect the manner in which a case is submitted to the jury in accordance with the authority cited by Ghidoni, we do not believe that the filing of such a counterclaim deprives the original plaintiff from pursuing the relief originally requested. See Thomas v. Thomas, 902 S.W.2d 621, 622 (Tex.App.—Austin 1995, writ denied) (addressing awarding of attorney’s fees where declaratory judgment initially sought in original petition). Ghidoni’s eleventh point of error is overruled.
Attorney’s Fees
Since the trial court has the discretion to grant or deny attorney’s fees in a declaratory judgment actions, we will only reverse the trial court’s award of attorney’s fees if it abused its discretion. Oake v. Collin County, 692 S.W.2d 454, 455 (Tex.1985); Thomas v. Thomas, 902 S.W.2d at 626; Peacock v. Schroeder, 846 S.W.2d 905, 912 (Tex. App.—San Antonio 1993, no writ). In his twelfth point of error, Ghidoni asserts that the trial court erred in awarding attorney’s fees to Stone Oak and HCSA in three ways: [584]*584(1) the action for declaratory judgment was rendered moot by Ghidoni’s counterclaim; (2) the CSA modified the lease as a matter of law; and (3) each party was required to bear his or its own attorney’s fees.
For the reasons previously given, we reject Ghidoni’s first and second contentions and only further address his argument that each party was required to bear his or its own fees. As to this third contention, Ghidoni has misconstrued the law.
Ghidoni cites two cases to support his assertion that where both parties have legitimate rights to pursue in a declaratory judgment action, each party should bear its own attorney’s fees. While Ghidoni is correct in stating that the trial court refused to award attorney’s fees under the facts in those cases, the court of appeals in each case noted that the award of attorney’s fees was discretionary. Knighton v. International Business Machines Corp., 856 S.W.2d 206, 210-11 (Tex.App.—Houston [1st Dist.] 1993, writ denied); United Interests, Inc. v. Brewington, 729 S.W.2d 897, 906 (Tex.App.— Houston [14th Dist.] 1987, writ refd n.r.e.). The trial court may award attorney’s fees “as are equitable and just.” Tex. Civ. PRAc. & Rem.Code Ann. § 37.009 (Vernon 1997). In reviewing such awards, we cannot substitute our judgment for that of the trial court. Peacock v. Schroeder, 846 S.W.2d at 912. Whether to award attorney’s fees to the prevailing party in a declaratory judgment action where both parties have “legitimate rights to pursue” remains a discretionary decision of the trial court. See Peacock v. Schroeder, 846 S.W.2d at 911-12 (awarding prevailing party attorney’s fees where both parties pursued right to declaratory relief). Based on the record before us, we do not find that the trial court’s award was an abuse of discretion.
Ghidoni’s twelfth point of error is overruled.
CONVERSION AND CONSPIRACY
In points of error thirteen and fourteen, Ghidoni asserts the trial court erred in granting a directed verdict on his conversion and conspiracy causes of action because there was some evidence to support the submission of theses claims to the jury.
Standard of Review for Directed Verdict
In reviewing whether a trial court erred in granting a directed verdict, we review the evidence in the light most favorable to the party against whom the directed verdict was rendered, and disregard all contrary evidence and inferences. Qantel Business Systems, Inc. v. Custom Controls Co., 761 S.W.2d 302, 303 (Tex.1988); Connell v. Connell, 889 S.W.2d 534, 538 (Tex.App.—San Antonio 1994, writ denied). If no evidence is presented to support the plaintiffs cause of action, an instructed verdict is proper. Qan-tel Business Systems, Inc., 761 S.W.2d at 302. If there is any conflicting evidence of probative value on each element of the plaintiffs claim, the issue is for the jury. Connell v. Connell, 889 S.W.2d at 538; University Nat ’l Bank v. Ernst & Whinney, 773 S.W.2d 707, 709-10 (Tex.App.—San Antonio 1989, no writ).
Conversion
Conversion is the wrongful exercise of dominion and control over the property of another. Bandy v. First State Bank, 835 S.W.2d 609, 622 (Tex.1992); Campos v. Investment Management Properties, Inc., 917 S.W.2d 351, 354 (Tex.App.—San Antonio 1996, writ denied). Generally, damages for conversion are the value of the property at the time of conversion together with legal interest thereon. Imperial Sugar Co. v. Torrans, 604 S.W.2d 73, 74 (Tex.1980). Ghidoni contends that the directed verdict was improper because the record reflects some evidence that significant amounts of water were removed from the Property after Ghidoni terminated the Campbell Lease. Stone Oak and HCSA counter that the evidence supporting Ghidoni’s conversion claim had no probative force because they were in rightful possession of the water in light of the fact that there was no breach of the Campbell Lease.
The position taken by Stone Oak and HCSA ignores our standard of review with regard to a directed verdict. Applying the applicable standard, we must view the evi-[585]*585denee in the light most favorable to Ghidoni, disregard all contrary evidence and inferences, and determine whether there was evidence of probative force to support Ghidoni’s claim that Stone Oak and HCSA wrongfully exercised dominion and control over the water. Viewing the evidence in this light, we must respond in the affirmative and conclude that the trial court erred in directing the verdict.
Whether the lease was properly terminated as to Stone Oak, thereby terminating any rights Stone Oak could have assigned to HCSA, initially turned on the issue of whether the Campbell Lease was modified by the CSA. As previously discussed, this issue was properly submitted to the jury. If the jury had answered this issue in the affirmative, it would then have been required to consider whether the Campbell Lease was terminated. This issue was conditionally submitted to the jury. The submission of these issues recognizes that a question of fact was raised regarding whether Ghidoni had the right to terminate the Campbell Lease for breach of the noise level requirement and whether Ghi-doni rightfully terminated the lease.
This same question of fact underlies Ghido-ni’s conversion claim. If the lease was properly terminated, the jury should have been required to determine whether the subsequent removal of water by HCSA and Stone Oak was the wrongful assumption of dominion and control over the water, or conversion. Therefore, the conflicting evidence regarding the continuing rights of Stone Oak and HCSA under the Campbell Lease entitled Ghidoni to at least a conditional submission of the conversion issue, and the trial court erred in rendering a directed verdict.
Although we have determined that the trial court erred in directing the verdict, we do not believe that the error requires a reversal in view of the jury’s answers to the questions that were submitted.5 Tex.R.App. P. 81(b)(1) provides that a new trial shall not be ordered in an appeal based on a determination of error “unless the appellate court shall be of the opinion that the error complained of amounted to such a denial of the rights of the appellant as was reasonably calculated to cause and probably did cause rendition of an improper judgment in the ease.” In the instant case, the jury failed to find that the CSA modified the terms of the Campbell Lease; therefore, the jury was not required to reach the issue regarding termination in connection with the noise level requirement. Furthermore, the jury found that HCSA complied with state laws regarding the sanitary control easement. Based on these answers, we find that the trial court’s error in directing a verdict against Ghidoni on his conversion claim was harmless. See Group Hospital Services, Inc. v. One & Two Brookriver Center, 704 S.W.2d 886, 889 (Tex. App.—Dallas 1986, no writ); Padgett v. Bert Ogden Motor’s, Inc., 869 S.W.2d 632, 536-37 (Tex.App.—Corpus Christi 1993, writ denied). In the absence of an affirmative finding in Ghidoni’s favor regarding termination of the lease, there could be no conversion of the water.
Conspiracy
The essential elements of civil conspiracy are: (1) two or more persons; (2) with an object to be accomplished; (3) and with a meeting of the minds on the object or course of action; (4) commit one or more unlawful or overt acts; and (5) there are damages as a proximate result. Massey v. Armco Steel Co., 652 S.W.2d 932, 934 (Tex. 1983); Connell v. Connell, 889 S.W.2d at 541. Merely proving a joint intent to engage in the conduct that results in injury is not sufficient to establish a claim for civil conspiracy. Juki v. Airington, 936 S.W.2d 640, 644 (Tex. 1996). Instead, civil conspiracy requires a specific intent to agree to accomplish an unlawful purpose or to accomplish a lawful purpose by unlawful means. Id.
[586]*586Ghidoni contends that the trial court erred in granting the motion for directed verdict as to the conspiracy claim because the agreement between Stone Oak and HCSA to assign the Campbell Lease was promulgated in an attempt to continue pumping water from the leasehold after the lease was terminated. We find Ghidoni’s assertion to be an unreasonable inference in view of the evidence presented and hold that the directed verdict was proper. See Connell v. Connell, 889 S.W.2d at 541 (fact may not be proved by unreasonable inference from other facts and circumstances). There is no evidence in the record that the sale of assets between Stone Oak and HCSA was unlawful. Therefore, there was no specific intent to agree to accomplish an unlawful act, and no evidence to support Ghidoni’s conspiracy claim. See White v. Babcock, No. 14-94-00468-CV, 1995 WL 502942, at *3, - 5.W.2d-,-(Tex.App.—Houston [14th Dist.], August 24, 1995, n.w.h.)(summary judgment on conspiracy claim proper where no evidence sale of assets illegal); Connell v. Connell, 889 S.W.2d at 534 (no conspiracy based on conveyance of property absent showing that transfer was unlawful). Furthermore, the evidence supports the conclusion that Stone Oak only intended to convey, and HCSA only intended to acquire, those assets Stone Oak rightfully possessed, and any reference in the documentation to any asset not owned by Stone Oak, including Lot 185B, was erroneous. Therefore, we conclude the trial court did not err in granting the motion for directed verdict with respect to Ghidoni’s conspiracy claim.
Intervention
Meehan (Ghidoni’s ex-wife) intervened in the Stone Oak lawsuit in June of 1993, citing her one-half interest in the disputed lease awarded to her in a divorce decree and complaining of Stone Oak’s failure to pay her portion of the lease payments. Ghidoni did not move to strike the plea in intervention.
In November 1993, Meehan moved to consolidate with the instant suit two previously filed lawsuits seeking to set aside a deed which Meehan executed transferring her interest in the real property and leasehold estate to Ghidoni and seeking declaratory relief. The consolidation was granted,6 and Meehan then amended her plea in intervention to assert the claims previously made in the other causes in one single pleading.
In April 1994, ten months after Meehan first intervened and five months after consolidation, Ghidoni filed a motion for severance, separate trials and abatement as to Meehan’s claims. Following a hearing, the motion was overruled on April 18,1994. When the cause was called for trial on August 15, 1994, no further relief on the motion was sought.
Motion to Sever
In his fifteenth point of error, Ghido-ni complains of the trial court’s denial of his motion to sever Meehan’s claims based on the contention that Meehan’s intervention was improper. In his brief, Ghidoni asserts various reasons why a justiciable interest was not shown by Meehan.
Rule 60 of the Texas Rules of Civil Procedure permits any party to intervene in an action “subject to being stricken out by the court for sufficient cause on the motion of any party.” Tex.R. Civ. P. 60. An intervenor is not required to secure the trial court’s permission to intervene; the party opposing intervention has the burden to challenge it by a motion to strike. Guaranty Federal Savings Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 657 (Tex.1990); Flores v. Melo-Palacios, 921 S.W.2d 399, 404 (Tex.App.—Corpus Christi 1996,. writ denied). However, a trial court abuses its discretion in striking a plea in intervention in the absence of a motion to strike. Guaranty Federal Savings Bank v. Horseshoe Operating Co., 793 S.W.2d at 657; Flores v. Melo-Palacios, 921 S.W.2d at 404.
Ghidoni admits that he did not file a motion to strike the intervention of Meehan, but urges that his motion for severance, separate trials and abatement essentially asked for [587]*587the same relief. We disagree. An order dismissing or striking an intervention “totally dispose[s] of the issues relating to the inter-venors’ interest in the suit and dismissefs] the intervenors totally from the suit” Barrows v. Ezer, 624 S.W.2d 613, 618 (Tex.Civ. App.—Houston [14th Dist.] 1981, no writ). A severance, on the other hand, “splits a single suit into two or more independent actions, each action resulting in an appealable final judgment.” Van Dyke v. Boswell, O’Toole, Davis & Pickering, 697 S.W.2d 381, 383 (Tex. 1986); see also Tex.R. Civ. P. 41. Therefore, the relief sought by a motion to strike intervention and a motion for severance, separate trial and abatement are clearly different and distinguishable. Ghidoni’s motion clearly sought the relief available by severance.
The arguments raised by Ghidoni in briefing his fifteenth point of error relate to the propriety of Meehan’s intervention not the propriety of the trial court’s action in denying the severance. Because Ghidoni failed to file a motion to strike the intervention, Ghi-doni has waived his right to complain that the intervention was improper on appeal under the guise of alleged error in denying his motion for severance. Ghidoni’s fifteenth point of error is overruled.
Rescission of Deed
Ghidoni’s final three points of error are directed at the trial court’s judgment rescinding the special warranty deed from Meehan to Ghidoni. In his sixteenth point of error, Ghidoni complains that the trial court should not have rescinded the deed because Meehan retained the benefits of the transaction giving rise to the execution of the deed. Ghidoni also complains in his eighteenth point of error that because the rescission of the deed was erroneous, the trial court erred in entering an order determining the method of lease payments. Alternatively, Ghidoni contends in his seventeenth point of error that the trial court should have conducted a post-trial evidentiary hearing to establish the amount necessary to restore Ghidoni after rescission of the deed.
A plaintiff in a suit for rescission of a deed to which he is a party generally must return, or offer to return, any consideration he has received. Johnson v. Cherry, 726 S.W.2d 4, 8 (Tex.1987); Guerrero v. Hagco Bldg. Systems, Inc., 733 S.W.2d 635, 637 (Tex.App.—San Antonio 1987, no writ). When rescission is granted in such a suit, the original status of the parties must generally be restored. See Johnson v. Cherry, 726 S.W.2d at 8; Shenandoah Associates v. J & K Properties, Inc., 741 S.W.2d 470, 476 (Tex. App.—Dallas 1987, writ denied). However, rescission may be allowed without complete restoration where the particular circumstances indicate that to be the more equitable result. Shenandoah Associates v. J & K Properties, Inc., 741 S.W.2d at 474-76; Turner v. Houston Agricultural Credit Corp., 601 S.W.2d 61, 65 (Tex.Civ.App.—Houston [1st Dist.] 1980, writ ref'd n.r.e.).
Where the trial court renders a judgment rescinding a contract or deed but fails to resolve the equities relating to restoration, the proper remedy is to remand the cause to the trial court for resolution of the issue. See Johnson v. Cherry, 726 S.W.2d at 8 (remanding cause to trial court for determination of reimbursement amount). The record reflects that Ghidoni appeared before the trial court asking that the judgment include restoration of monies due him following the cancellation of the deed. The trial court recognized Ghidoni’s entitlement and stated:
‘Well, I think you are right to this extent, that he would be entitled to — since the deed was cancelled, he would be entitled to recoup the amount of money that was given. There is no question about that. But it is not part of this deal ...”
The following exchange then took place:
THE COURT: I might suggest this that in order to avoid any future litigation over this thing, that you make arrangements about the reimbursement.
(ATTORNEY FOR MEEHAN) MR. ROSS: We intend to talk to his counsel and see if we can agree what the reimbursement is and make arrangements.
THE COURT: Yeah, that would save attorneys fees.
MR. ROSS: Absolutely.
THE COURT: And, Mr. Ghidoni, and for you too.
[588]*588MR. ROSS: Absolutely, and we don’t deny that there is going to be some reimbursement. And we will—
(ATTORNEY FOR GHIDONI) MS. "WILLIAMSON: That’s what we’re afraid of, Your Honor, that it will, you know, if we don’t get it resolved now, it would—
THE COURT: Well, see, dear, I can’t resolve it here because it has no part in here. I can urge Mr. Ross to take care of that matter. Otherwise, unless he wants to get in a lawsuit, and he doesn’t need another lawsuit, so I would suggest — -just a suggestion.
MR. ROSS: I understand, Judge, and we intend on doing that if we can work out what we think, you know, agree on what is due. Just briefly, for Nancy Ghidoni, in-tervenor, we have reviewed this final judgment. We have no objections to it. We would urge the Court to sign the judgment as—
THE COURT: You have given counsel a copy of this?
MR. CAMPAGNOLO: Yes, Your Hon- or, to all counsel.
THE COURT: Thank you very much.
Therefore, the record reflects that the trial court improperly refused to address the restoration issue. Contrary to Ghidoni’s assertion, however, the trial court’s failure to address this issue does not require the reversal of the portion of the judgment granting the rescission but only requires that the cause be remanded to the trial court for consideration of the restoration issue. Accordingly, we reverse that portion of the trial court’s judgment relating to the rescission of the special warranty deed, render judgment declaring the special warranty deed null and void and setting aside the conveyance reflected therein, and remand the cause to the trial court to consider the equities relating to Ghidoni’s claim for restoration. See Johnson v. Cherry, 726 S.W.2d at 8.
Conclusion
The permanent injunction granted in the trial court’s final judgment is modified to limit the restraint to directly or indirectly restricting or preventing access “pursuant to the Lease” to HCSA In addition, the portion of the judgment rescinding the special warranty deed from Meehan to Ghidoni is reversed, judgment is rendered declaring the special warranty deed null and void, and the cause is remanded to the trial court for determination of the restoration issue. The remainder of the judgment is affirmed.
DUNCAN, J., dissents with opinion in which ANGELINI, J., joins.
ANTONIO G. CANTU, J., dissents with opinion.