Noell, David W., City of Carrollton, Carrollton Property Standards Board, Crow-Billingsley Air Park, LTD, Henry Billingsley v. Air Park Common Area Preservation Association, Chad Maisel, Amy Eklund, and Dale Burgdorf

• Court: Court of Appeals of Texas
• Decided: April 9, 2014
• Docket: 05-11-01377-CV
• Status: Published

Opinion

AFFIRM, MODIFY, REVERSE and REMAND; Opinion Filed April 9, 2014.

S In The Court of Appeals Fifth District of Texas at Dallas

No. 05-11-01377-CV

DAVID W. NOELL, Appellant/Intevenor

V.

CITY OF CARROLLTON AND CARROLLTON PROPERTY STANDARDS BOARD, Appellants/Appellees

CROW-BILLINGSLEY AIR PARK, LTD, HENRY BILLINGSLEY, AND AIR PARK – DALLAS ZONING COMMITTEE, Appellants V. AIR PARK COMMON AREA PRESERVATION ASSOCIATION, CHAD MAISEL, AMY EKLUND, AND DALE BURGDORF, Appellees

On Appeal from the 219th Judicial District Court Collin County, Texas Trial Court Cause No. 219-00926-2009

OPINION Before Justices Bridges, O’Neill, and Lewis Opinion by Justice O’Neill This dispute concerns claims by homeowners in a residential “airpark” community

against a real estate developer, the zoning committee of the airpark community, and the City of

Carrollton in connection with actions that resulted in the City ordering the airpark’s airport

closed. Appellees Air Park Common Area Preservation Association, Inc., Dale Burgdorf, Chad

Maisel, and Amy Eklund (Homeowners) represent homeowners or own homes in Air Park

Dallas, a residential community with a small, privately-owned, public-access airport. After the

City of Carrollton annexed a portion of the airport, it passed an ordinance to regulate the airport.

The City’s Property Standards Board (CPSB) subsequently ordered the airport closed unless

Crow-Billingsley Air Park, Ltd., (CBA), the record title owner of the land on which the airport

was located, cured numerous violations of the Ordinance it found to exist.

Homeowners sued CBA, CBA’s majority owner Henry Billingsley, and the Air Park

“Zoning Committee” raising various claims in connection with their failure to comply with the

Ordinance, their violation of contractual and fiduciary duties to Homeowners, and their

interference with Homeowners’ easements to use the airport’s landing strip. Homeowners also

sued the City and CPSB, challenging the City’s interpretation of the Ordinance and the

constitutional validity of both the Ordinance and the Order. Noell, who is also a homeowner in

Air Park as well as an original developer of Air Park and a minority owner of CBA, raised

similar challenges to the Order and Ordinance.

On summary judgment, the trial court determined the Ordinance was “facially valid” but

the Order was invalid. In its final judgment, the trial court granted Homeowners declaratory and

injunctive relief against the City and CPSB based on these summary judgment rulings.

Homeowners claims against the Billingsley appellants were tried to a jury. The trial court

rendered judgment in favor of Homeowners on the jury’s verdict awarding actual damages on

their claims for breach of contract, breach of fiduciary duty, and breach of the Air Park

restrictions. The trial court also awarded Homeowners declaratory relief and injunctive relief

against the Billingsley appellants, declaring CBA had a duty to maintain the airports’ landing

2 strip, which included the duty to operate the airport, requiring CBA to comply with the

Ordinance, and prohibiting the Billingsley appellants from interfering with Homeowners’

easements.

Noell appeals the partial summary judgment declaring the Ordinance was facially valid.

The City appeals the partial summary judgment reversing CPSB’s order and granting

Homeowners’ declaratory and injunctive relief. The Billingsley appellants appeal the trial

court’s judgment on the jury’s verdict awarding actual damages and declaratory and injunctive

relief.

For the reasons that follow, we affirm the trial court’s judgment invalidating the Order,

but reverse the trial court’s judgment declaring the Ordinance facially valid. We also reverse the

portions of the judgment granting Homeowners declaratory and injunctive relief regarding the

Order and the Ordinance, and remand those claims to the trial court for further proceedings

consistent with this opinion. We modify, in part, the injunctive relief awarded to Homeowners

against CBA. We affirm the judgment in all other respects.

FACTUAL AND PROCEDURAL BACKGROUND

Noell and his father Milton began the Air Park Dallas development in the 1960s. They

marketed Air Park to purchasers as a residential community with its own FAA-approved airport.

The community was designed with a landing strip and taxiways, allowing residents to store their

personal aircraft in hangers at their homes and giving them direct access to the landing strip.

“Business lots” providing aviation services were constructed on the eastside of the landing strip

(eastside business lots).

Lots in Air Park were sold pursuant to a “Note and Contract,” which provided:

An aircraft landing area being a minimum of 300 feet wide and 3,000 feet long will at all times be available to the homesites [sic] property owners

3 via taxiways arranged in accordance with said plot filed in Collin County, Map Records. Said landing area will be owned, controlled and maintained by Air Park Associates, 1 their heirs or assignees at no cost to the homeowners for a minimum period of ten years and will continue thereafter until such time as said landing strip might cease to be economically feasible and at which time said strip and taxiways will be donated to the homeowners in exchange for access and usage privileges without charge to the donors except for a proportionate part of the maintenance cost which will be determined by a board of three independent appraisers, if necessary. In the event of discontinuance of use of said landing strip as an aircraft landing area, title to same will revert to the donors, their heirs or assigns.

The document contained “Use and Building Restrictions,” which were expressly made

part of the agreement and were listed on the reverse side. The restrictions provided for a

“Zoning Committee” composed of Noell, his father Milton, and three additional members to be

elected by a majority of the lot owners. The restrictions imposed requirements on the property

owners and provided the Zoning Committee could enforce certain restrictions where necessary to

protect the homeowners. Air Park was in an unincorporated area of Collin County, and the

restrictions further provided the Zoning Committee “will act as a governing body with legal

authority to make those rulings necessary or call for an election to protect the best interests of the

community until an incorporated government can be established.”

In 1983, Milton sold an undivided one-half of his interest in Air Park to Henry

Billingsley, a sophisticated real-estate developer. It is undisputed that Billingsley purchased this

interest as an investment. Milton and Billingsley subsequently transferred all of their interest in

Air Park to CBA. The interest included the landing strip, the eastside business lots, as well as

some residential lots. After Milton passed away, his interest in CBA went to Noell and Noell’s

1 There was testimony at trial that Air Park Associates was a general partnership consisting of Noell and his father Milton. The trial court’s judgment is based on its conclusion that CBA is obligated to perform Air Park Associates’ duties. Other than the issue raised in their fifth issue, asserting CBA did not expressly assume the obligations in the Note and Contract, the Billingsley appellants fail to address the relevance of Air Park Associates being the party named in the Note and Contract.

4 brother. Billingsley purchased Noell’s brother’s interest in CBA, giving Billingsley seventy-five

percent ownership of CBA. Noell owns the remaining twenty-five percent. During these

transactions, the parties agreed the airport property would be leased to Noell for a period of one

year and thereafter on a month-to-month basis. Pursuant to that lease, Noell operated the airport,

and maintained the landing strip, for over twenty years.

Meanwhile, Billingsley and CBA purchased additional lots in Air Park until, in 2003,

they owned sufficient lots to take control of the Zoning Committee. Billingsley then elected

himself, his wife, and a long-time Billingsley employee to the committee; Noell remained on the

Zoning Committee as a permanent member pursuant to the Air Park Restrictions. After

Billingsley obtained control over the Zoning Committee, CBA terminated the Noell lease. Even

so, Noell has continued to manage and operate the airport.

In 2007, Billingsley took the first step that would be necessary for CBA to develop the

Air Park property and build “Willow Park Village,” a proposed residential, retail, and mixed use

planned development district. Specifically, Billingsley had the land he sought to develop de-

annexed from the City of Hebron. 2 This land included the eastside business lots and a portion of

the landing strip, but left a portion of the landing strip in Hebron. Billingsley then approached

the City of Carrollton with the development plan for Willow Park Village and requested

annexation. In connection with this request, CBA submitted a traffic study, a concept site plan,

and an application for “rezoning” for the development. Billingsley also offered to “indemnify”

2 The eastside business lots and the landing strip (but not the residential lots) were annexed into the City of Hebron years earlier. Billingsley explained that the City of Hebron was essentially created to allow people to “warehouse” their property in this growing area of Collin County to prevent annexation by other cities to keep property taxes down until the property was ready to be developed. He stated when the property was ready for development, the property owners would then seek annexation into either Plano, Lewisville, The Colony, or Carrollton, whichever city happened to be adjacent and had the best utilities.

5 the City for any attorney’s fees it incurred as a result of the annexation. The City proceeded

with, and approved, the annexation.

With annexation complete, Billingsley began lobbying for passage of an ordinance to

regulate the Air Park airport. His efforts were successful, and the City passed the Ordinance.

The Ordinance, citing safety concerns, was passed as an amendment to the City Code’s nuisance

provisions. The Ordinance imposed several requirements on the “owner of the airport,”

including the requirement that the owner (1) prescribe rules and regulations consistent with

“Model Airport Rules and Regulations” published by the Texas Department of Transportation,

(2) obtain insurance, and (3) hire an airport manager accredited by the American Association of

Airport Executives. The assistant city attorney who drafted the Ordinance admitted it was

drafted with the intent that only CBA was the “owner of the airport,” and the City intended to

exclude Homeowners as owners for purposes of compliance with its provisions. The Ordinance

also contained numerous provisions applicable to the eastside business lots.

The Ordinance provided that any violation of its provisions constituted a “nuisance” that

could result in CPSB ordering any land, building, structure, or activity be vacated, demolished,

discontinued and abated, and further provided any violation was an offense punishable by a fine

of up to $2,000 per day for each day the violation was committed, permitted, or continued.

After the Ordinance passed, the City sent several notices of violations to Billingsley

concerning CBA’s failure to comply with the Ordinance, including violations only the “owner of

the airport” could abate, as well as violations on the eastside business lots. The City warned that

CBA’s failure to cure the violations could result in closure of the airport. As expected, CBA

made no effort to abate the violations. Homeowners and Noell, however, did attempt to cure the

violations and comply with the Ordinance’s requirements. The City would not consider these

6 efforts because they were not tendered by CBA, the “owner of the airport.” Homeowners then

filed this suit seeking to compel CBA and Billingsley to comply with the Ordinance and to

compel the Zoning Committee to enforce restrictive covenants and to compel CBA’s compliance

with the Ordinance. Noell filed an intervention asserting claims against Homeowners seeking to

determine what, if any, rights or obligations he had to comply with the Ordinance.

Meanwhile, during the pendency of this case, the trial court granted Homeowners

temporary injunctive relief requiring the Zoning Committee to take all reasonable and necessary

steps to bring the airport in compliance with the Ordinance. After it did so, the Zoning

Committee also purported to take steps to comply with the Ordinance. These efforts were also

ignored by the City because the Zoning Committee was not the “owner of the airport.”

The City then determined CBA failed to abate violations of the Ordinance. After a

hearing, CPSB found the “building and premises” were dangerous, substandard, dilapidated,

unfit for human habitation, and a hazard to the public health and welfare. In a 5 to 4 vote, the

CPSB board members ordered the airport closed unless all violations at Air Park were abated

within thirty days by “the owner of record that is recognized as legally liable for said property.”

Homeowners then amended their petition, adding the City and CPSB as parties. 3 They asserted

the City’s actions violated their rights under chapter 43 of the Local Government Code, which

protected their continued use of the annexed property as an airport. 4 They further asserted

3 In their amended petition, Homeowners properly requested a writ of certiorari for review of the board decision. See TEX. LOC. GOV’T CODE ANN. § 211.011(a) (West 2008). The trial court granted the writ, directing the CPSB to state any pertinent and material facts showing the grounds for their decision. TEX. LOC. GOV’T CODE ANN. § 211.011(c)(d) (West 2008) 4 Section 43.002 of the Local Government Code prohibits a City, after annexing an area, from prohibiting a person from continuing to use land in the manner it was being used on the date the annexation proceedings were instituted if such use was legal at the time of annexation. See TEX. LOC. GOV’T CODE ANN. § 43.002(a)(1) (West 2008). However, this prohibition does not prevent a municipality from imposing regulations relating to public nuisances. TEX. LOC. GOV’T CODE ANN. § 43.002(c)(4).

7 CBSP’s order should be reversed because its interpretation of the Ordinance, which allowed only

CBA to comply with its requirements, was arbitrary, unreasonable, and capricious. Homeowners

asserted if CPSB’s interpretation was allowed to stand, the Order deprived them of their property

rights without due process of law. Noell amended his intervention to assert similar claims

against the City and CPSB.

The City and Homeowners filed competing motions for summary judgment on the

validity of the Order. The City also filed a motion for summary judgment that the Ordinance

was valid as a matter of law. After considering the motions, the trial court determined the

Ordinance was valid but the Order was not. A jury trial on Homeowners’ remaining claims

against the Billingsley appellants followed. After a three-week trial, the jury answered nearly all

questions submitted in favor of Homeowners. The jury found, among other things, that

Billingsley and the Zoning Committee breached their fiduciary duties to Homeowners, CBA

breached its duties to Homeowners by failing to maintain the landing strip, CBA breached the

Air Park restrictions, the Zoning Committee failed to enforce those restrictions, and all the

Billingsley appellants interfered with the Homeowners’ easements on the landing strip. The trial

court awarded actual damages and declaratory and injunctive relief, declaring CBA was

obligated to operate an airport at Air Park by virtue of its obligation to maintain the landing strip,

and generally enjoining CBA from taking any actions that would injure, impair, hinder, harm, or

prevent Homeowners’ use of the landing strip, and requiring CBA to take numerous actions

necessary to comply with the Ordinance if failure to comply would adversely affect the

Homeowners’ right to use the landing strip. The trial court also granted declaratory and

injunctive relief with respect to Homeowners’ claims against the City. Specifically, after

concluding the Ordinance was facially valid, the trial court invalidated the Order and declared

8 the term “owner” as used in the Ordinance included any person that had an easement to the

landing area. The trial court’s final judgment also included injunctive relief in favor of

Homeowner against the City, requiring the City to allow Homeowners to abate violations of the

Ordinance, and to give Homeowners notice of any violations of law that may affect Homeowners

continued use of the landing strip. 5 This appeal ensued.

SUMMARY JUDGMENT

City’s Appeal

We will first consider the City’s complaints regarding the trial court’s partial summary

judgment reversing the Order closing the airport. The City asserts the trial court erred by

granting Homeowners’ motion for summary judgment and by denying its motion. Homeowners

moved for summary judgment on the grounds that the City erroneously interpreted the Ordinance

to exclude them as owners for purposes of compliance, or alternatively, if it did not, the Order

effected a deprivation of their property rights without due process. They also complained the

City relied on alleged violations of the Ordinance that did not concern aviation safety or airport

functions as grounds to close the airport.

We review a summary judgment de novo. Travelers Ins. Co. v. Joachim, 315 S.W.3d

860, 862 (Tex. 2010). In reviewing a traditional motion for summary judgment, the movant has

the burden to demonstrate no genuine issue of material fact exists and it is entitled to judgment

as a matter of law. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985);

Jespersen v. Sweetwater Ranch Apartments, 390 S.W.3d 644, 652 (Tex. App—Dallas 2012, no

pet.). When both parties move for summary judgment and the trial court grants one motion and

denies the other, we review both sides’ summary judgment evidence and render the judgment the

5 The trial court granted Noell’s motion to sever his claims against the Homeowners and those claims are not before us in this appeal.

9 trial court should have rendered. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868,

872 (Tex. 2000). Whether the application of a statute to undisputed facts is unconstitutional or

whether a statute is facially unconstitutional is a question of law. See in re C.P.J., 129 S.W.3d

573, 576 (Tex. App.—Dallas 2003, pet. denied); see also Barshop v. Medina County

Underground Water Conservation Dist., 925 S.W.2d 618, 629 (Tex. 1996).

In asserting the trial court erred in reversing the Order, the City seeks to clearly separate

Homeowner’s constitutional challenges to the Ordinance from our review of the Order. In doing

so, it essentially ignores Homeowners’ constitutional complaints and relies on a highly

deferential standard of review it asserts requires we reverse the trial court and affirm CPSB’s

Order. Specifically, the City argues that because it could generally regulate airport activity under

its police power and because CPSB’s conclusion the Ordinance was violated was “reasonable,”

the Order must be upheld without further analysis. We are unpersuaded. The City’s position

regarding our review of CPSB’s order – if accepted – would virtually insulate CPSB’s order

from any meaningful constitutional review and ignores the heart of Homeowners complaints

concerning the Order.

As a quasi-judicial body, the decisions of a zoning board are subject to appeal before a

state district court upon application for a writ of certiorari. See TEX. LOCAL GOV’T CODE §

211.011(a), (b); Bd. of Adjustment of the City of Corpus Christi v. Flores, 860 S.W.2d 622, 625

(Tex. App.—Corpus Christi 1993, writ denied). The district court sits only as a court of review,

and the only question before it is the legality of the zoning board’s order. City of Alamo Heights

v. Boyar, 158 S.W.3d 545, 549 (Tex.App.—San Antonio 2005, no pet.). To establish that an

order is illegal, the party attacking the order must present a “very clear showing of abuse of

discretion.” City of San Angelo v. Boehme Bakery, 144 Tex. 281, 190 S.W.2d 67, 71 (1945). A

10 party is nevertheless entitled to judicial review of administrative actions that adversely affect a

vested property right or otherwise violates a constitutional right. Lamar Corp. v. City of

Longview, 270 S.W.3d 609, 614-15 (Tex. App.—Texarkana 2008, no pet.). If an order deprives

a person of vested property rights without due process, the order can be set aside. See City of

Houston v. Carlson, 393 S.W.3d 350, 361-62 (Tex. App.—Houston [14th Dist.] 2012, no pet);

cf. Stop the Beach Renourishment, Inc. v. Fl. Dep’t of Env. Protection, 560 U.S. 702, 735 (2010)

(Kennedy, J., concurring) (stating if a judicial decision, as opposed to an act of the executive or

the legislature, eliminates an established property right, the judgment could be set aside as a

deprivation of property without due process of law).

A deprivation of property without due process violates the Texas Constitution. Tex.

Workers’ Comp. Comm’n v. Patient Advocates of Tex., 136 S.W.3d 643, 658 (Tex. 2004); see

also Smith v. City of League City, 338 S.W.3d 114, 127 (Tex. App.—Houston [14th Dist.] 2011,

no pet.). A taking of property for public use without just compensation also violates the Texas

Constitution. See TEX. CONST. art. I, § 17. A government entity may, however, under its police

power, abate public nuisances, and such an abatement does not constitute a taking. See City of

Dallas v. Stewart, 361 S.W.3d 562, 569 (Tex. 2012). But a city may not, under the guise of the

police power, arbitrarily interfere with private property or impose unusual or unnecessary

regulations on it. See State of Washington v. Roberge, 278 U.S. 116, 121 (1928); see also ex

parte Smythe, 28 S.W.2d 161, 162 (Tex. Crim. App. 1930). Further, to justify a taking based on

its police power to abate nuisances, a nuisance must in fact exist. See Stewart, 361 S.W.3d at

575-76. Whether such a nuisance exists is a question of law, not of fact, that must be answered

based on a “fact-sensitive test of reasonableness.” Id. Agencies are generally not equipped to

11 make such determinations, which are of direct constitutional import and often require a complex

balancing of competing interests. See id. at 576-78.

Here, the City’s reliance on its general authority to regulate land use under the police

power misses the critical question. It is without question that a City has the power to impose

regulations on land use. In particular, a City, in the exercise of its police power, has authority to

promulgate zoning ordinances regulating the use, and, where necessary or appropriate, to

prohibit the use of property for certain purposes in aid of the general welfare, safety and public

health and morals of the community. City of Bellaire v. Lamkin, 317 S.W.2d 43, 45 (Tex. 1958).

But here, the City did not do so. Rather, the City relied upon its power to abate nuisances to

permit it to destroy Homeowners’ easement rights.

An easement is a property interest protected by the Texas Constitution. See Houston

Lighting & Power Co. v. State, 925 S.W.2d 312, 315 (Tex. App.—Houston [14th Dist.] 1996,

writ denied). Non-compliance with an ordinance does not automatically divest an owner of his

property rights or relieve a government entity of the constitutional requirements to provide due

process. See Carlson, 393 S.W.3d at 358 (Tex. App.—Houston 14th Dist. 2012, no pet.)

(procedural due process).

The City does not dispute that, under the Ordinance, Homeowners had no right to notice

of violations and no right or opportunity to abate any violations of the Ordinance. Indeed,

Homeowners’ efforts to cure violations and comply with the Ordinance were admittedly ignored

because, according to the City, they were not “owners” of the airport. The Zoning Committees’

compliance efforts, which were ordered by the trial court after a temporary injunction hearing,

were likewise ignored because it was not an “owner” of the airport. That temporary injunction

included findings that (1) Homeowners had a right to use the landing strip and taxiways deriving

12 from “deeds, contracts, restrictive covenants, express easements and an equitable servitude,” and

(2) the Zoning Committee had jurisdiction over the landing strip. In that injunction, the trial

court ordered the Zoning Committee to take all reasonable steps necessary, including

enforcement actions, to achieve compliance with the Ordinance, and authorized Homeowners to

act on behalf of the Zoning Committee if the Zoning Committee did not do so. The injunction

also authorized Homeowners to deal directly with the City to fully resolve or abate any

violations of the Ordinance.

At the CPSB hearing, the City maintained the trial court’s order “meant nothing” because

the City was not (at that time) a party to the action and the injunction did not alter its position as

to who was the “owner of the airport.” However, CBA and the Zoning Committee were parties

to the proceedings in the trial court, and the City has acknowledged CBA could authorize another

to comply with the ordinance. The City has failed to articulate why the trial court could not

authorize the Zoning Committee (which was effectively controlled by CBA) and/or Homeowners

to act on CBA’s behalf.

Further, although the City urges we must give CPSB deference regarding its

determination of the meaning of the term owner, the City acknowledged at the hearing CPSB

was not competent to determine the ownership issue. Specifically, the City Attorney argued the

issue of whether Homeowners had an “equitable interest” was “too technical [of] a legal issue for

[CPSB] to have to decide.” CPSB likewise acknowledged its lack of competence to determine

the ownership issue in its statement showing the grounds for its order. Specifically, CPSB noted

Homeowners claim was “not clear” and was based on legal questions it could not determine.

However, CPSB relied on this very determination to order the airport closed destroying

13 Homeowners’ property rights without affording Homeowners’ either any right to notice or

opportunity to comply with the Ordinance’s substantive requirements.

Finally, the Order is not valid based on the City’s power to abate nuisances.

Homeowners complained CPSB ordered the airport closed based on violations at the airport that

did not concern aviation safety on the landing strip. Furthermore, Homeowners, Noell, and the

Zoning Committee had taken numerous steps to address the City’s safety concerns, including

hiring an AAAE approved airport manager, drafting rules and regulations for the airport’s

operation, and obtaining insurance. At the CPSB hearing, the City readily admitted it was

“immaterial” whether any violations had been corrected by anyone other than the owner because

“[o]bviously you have to take the ordinance as you find it” and the ordinance required the

“owner” of the airport to take the steps to bring the airport in compliance. Contrary to the City’s

suggestion, although it has the power to abate nuisances, it does not have the power to declare or

define them, at least to the extent it seeks to utilize a nuisance determination to destroy property

rights. In other words, the State may not by declaration transform private property into public

property under the police power. Cf. Lucas v. S. Carolina Coastal Council, 505 U.S. 1003, 1031

(1992) (explaining that if the government seeks to justify a zoning ordinance that has effect of

what would otherwise be a taking under its power to abate nuisances, the government must do

more than merely proffer a legislative declaration). Here, the Ordinance allowed CPSB to do

just that by purporting to declare that any violation of its provisions, regardless of any actual

effect on safety, constituted a nuisance. Because the Order operated to destroy Homeowner’s

easements, without due process of law, the trial court did not err in reversing the Order.

14 Noell’s Appeal

We now turn to Noell’s appeal regarding the trial court’s summary judgment in favor of

the City regarding the facial constitutionality of the Ordinance. We begin by addressing the

City’s assertion, made for the first time on appeal, that Noell has no standing to bring this appeal.

According to the City, Noell failed to prove his standing to challenge the Ordinance because he

did not present any summary-judgment evidence of his ownership interest in the property.

Although Noell’s ownership interest was not disputed below, the City asserts we must

nevertheless dismiss Noell’s appeal because he failed to present summary judgment proof of this

interest.

Standing, as a component of subject-matter jurisdiction, can be raised for the first time

on appeal. However, when standing is raised for the first time on appeal, we must consider the

entire record. See John C. Flood of DC, Inc. v. SuperMedia, L.L.C., 408 S.W.3d 645, 650 (Tex.

App.—Dallas 2013, pet. filed). Here, the record as a whole contains more than enough proof of

Noell’s standing. Noell not only owns a home in Air Park, he was an original developer of Air

Park, is a member of the Zoning Committee, and is a twenty-five percent owner of CBA.

Furthermore, even if we are limited to the summary judgment record, there is sufficient proof of

Noell’s standing to challenge the Ordinance. Specifically, CPSB’s Order itself states that Noell

was the “minority owner” in the airport. Moreover, there was summary judgment evidence that

Noell actually owned all the improvements at the airport.

We conclude Noell has standing to bring this appeal. Turning to the merits, Noell’s

complaints regarding the Ordinance are generally similar to, and overlap with Homeowners’

15 complaints. 6 In particular, Noell also complained that CPSB’s order was arbitrary and capricious

because CPSB’s interpretation of the Ordinance was incorrect and did not permit him to comply

with its provisions. He also asserted if CPSB’s interpretation was correct, the Ordinance violated

his due process rights. Finally, Noell contended various substantive parts of the Ordinance were

unconstitutionally vague.

The City moved for summary judgment asserting the Ordinance was, as a matter of law, a

valid exercise of the police power, and the trial court granted its motion. We have previously

concluded that CPSB’s Order destroying Homeowners’ property rights violated their due process

rights. As the City readily admits, the face of the Ordinance authorized CPSB to do so.

Therefore, for the same reasons that CPSB’s Order effected a deprivation of property without

due process of law, so too are the provisions of the Ordinance which on their face expressly

authorized CPSB to do so. This determination, however, only concerns Noell’s complaint that

the Ordinance operated to deprive him of his property without due process.

Therefore, we further consider Noell’s complaint that the substantive requirements of the

Ordinance are unconstitutionally vague. The same rules apply to the construction of municipal

ordinances as apply to the construction of statutes. Mills v. Brown, 316 S.W.2d 720, 723 (Tex.

1958). When we review a challenge to the constitutionality of a statute, we begin with the

presumption that the statute is valid, and the legislature did not act unreasonably or arbitrarily in

enacting it. Lawrence v. State, 211 S.W.3d 883, 890 (Tex. App—Dallas 2006), aff’d, 240

S.W.3d 912 (Tex. Crim. App. 2007). The party challenging the constitutionality of a statute

6 Noell also raises complaints the Ordinance is invalid because it is preempted by Chapter 241 of the Local Government Code. See generally, TEX. LOC. GOV’T CODE ANN. § 241.011 (West 2005). Chapter 241 contains comprehensive provisions regarding a City’s authority to regulate privately-owned public-access airports. It is undisputed that the City has not attempted to comply with Chapter 241’s requirements. The City contends Noell waived these complaints because he did not raise them in his motion for summary judgment. It further asserts Chapter 241 is inapplicable because it only applies to “airport hazards” and does not regulate “airport activity.” Because these issues were not raised in the summary judgment proceedings, we do not reach them here.

16 bears the burden of proving the challenged statute is unconstitutional. Id. We will uphold a

statute if it can be reasonably construed in a manner that will render it constitutional. Id.

A statute or ordinance is unconstitutionally vague if the persons regulated by it are

exposed to risk or detriment without fair warning or if it invites arbitrary and discriminatory

enforcement by its lack of guidance to those charged with its enforcement. See Comm’n for

Lawyer Discipline v. Benton, 980 S.W.2d 425, 437 (Tex. 1998); Tex. Liquor Control Bd.v. Attic

Club, Inc. 457 S.W.2d 41, 45 (Tex. 1970); City of Webster v. Signad, Inc., 682 S.W.2d 644, 646

(Tex. App.—Houston [1st Dist.] 1984, writ ref’d n.r.e.). Implicit in this constitutional safeguard

is the idea that laws must have an understandable meaning and must provide legal standards that

are capable of application. City of Mesquite v. Aladdin’s Castle, Inc., 559 S.W.2d 92, 94 (Tex.

Civ. App.—Dallas 1977), writ ref’d n.r.e by 570 S.W.2d 377 (Tex. 1978) (per curiam). Due

process is violated and a law is invalid if persons of common intelligence are compelled to guess

at a law’s meaning and applicability. Attic Club, 457 S.W.2d at 45; Pennington v. Singleton, 606

S.W.2d 682, 689 (Tex. 1980); Signad, 682 S.W.2d at 646. A vague law impermissibly delegates

basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective

basis, with the attendant dangers of arbitrary and discriminatory application. Grayned v. City of

Rockford, 408 U.S. 104, 108-09 (1972).

Noell asserts the Ordinance is unconstitutionally vague because it fails to give fair

warning to those who might violate it and fails to give sufficient guidance to those who enforce

it, yet provides for significant penalties, including criminal penalties, for any violations. Among

his complaints, Noell asserts the Ordinance is unconstitutionally vague because it failed to define

the term “owner.” An ordinance is not unconstitutionally vague merely because it does not

define words or phrases. Zaborac v. Tex. Dep’t of Pub. Safety, 168 S.W.3d 222, 225 (Tex.

17 App.—Fort Worth 2005, no pet.). In interpreting an ordinance, we construe words according to

their common usage, unless they have acquired a technical or particular meaning.” Id.

The term “owner” means different things in different circumstances. Because the term

does not have a definite legal meaning, its meaning must, where possible, be ascertained from

the context and subject matter in which it used. See Realty Trust Co. v. Craddock, 112 S.W.2d

440, 443 (Tex. 1938); Travis Cent. Appraisal Dist.v.. Signature Flight Support. Corp., 140

S.W.3d 833, 839 (Tex. App.—Austin 2004, no pet). According to the City, the context in which

the term was used and the subject matter of the Ordinance were sufficient to provide the term

with an ascertainable meaning. We disagree. Indeed, we conclude the context and subject

matter in which the term was used in the Ordinance serves to highlight its vagueness.

The term “owner” was used for the purposes of requiring the “owner of the airport” to

control operations at the airport. The term “airport” does not simply reference real property, but

references the activity conducted on that property. Cf. Lindsay v. Papageorgiou, 751 S.W.2d

544, 548-49 (Tex. App.—Houston [1st. Dist.] 1988, writ denied) (concluding word “owner” as

used in connection with a business or enterprise connotes “operation” of that business). The

airport itself was not an entity with an owner of record, but CBA was the record title owner of

the land on which the airport was based. That landing strip, however, was encumbered with

Homeowners’ easements, giving them the right to use the landing strip. Noell, on the other hand,

owned the structures and hangars on the airport property and was also the operator of the airport.

The Zoning Committee had jurisdiction within the easement, and thus had authority over the

record title owners.

A review of the City’s own Code, and other Texas statutes, illustrates that the term owner

could include various interests that might be deemed “owners” of the airport. Section 95.01 of

18 the City’s own Code, referring to the duties of owners to keep property free from trash and

weeds, is arguably the most germane statue that might assist in determining the meaning of the

term “owner” as used in the Ordinance. That section includes as owners any person, firm or

corporation “having jurisdiction within an easement.” The Texas Legislature has in various

contexts defined owner as including “operators,” those with a “property interest,” and those

claiming a possessory interest by virtue of “legal” or “equitable title.” See TEX. SPEC. DIST.

CODE ANN. § 8801.001(8) (West 2013 Pamph.) (well owner includes a person with an ownership

interest in a well, operates a well, or owns the land on which a well is located); TEX. WATER

CODE ANN. § 26.342 (West 2008) (owner includes person with legal possession or an ownership

“interest” in petroleum storage system); TEX. GOV’T CODE ANN. § 2007.002(2)(4) (West 2008)

(owner includes a person with legal or equitable title to an interest in real property recognized by

common law); TEX. PROP. CODE ANN. § 201.003 (West 2007) (owner means a person that owns

record title to real property).

Here, the context and subject matter in which the term “owner” was used reveals it could

possibly, but may not necessarily, include various interests. The term could reference a person

with the property right to use the land as an airport, a person that operates the airport, a person

with the right to control the airport, a person that owns physical structures or leaseholds on the

airport, or also, as the City contends, a person that owns record fee-simple title to the land on

which the airport is located. We conclude the term owner, as used in the Ordinance, is

unconstitutionally vague because it fails to give sufficient guidance as to whose conduct it is to

regulate, who is legally responsible to comply with its provisions, and who could be criminally

liable for its violations.

19 We also agree with Noell that other provisions of the Ordinance are unconstitutionally

vague. The Ordinance requires the owner of the airport to adopt rules and regulations

“consistent” with the Texas Department of Transportation’s Model Rules and Regulations for the

“appropriate size and type of airport.” The model rules were developed as a model for cities and

counties to govern their own publicly owned airports, not to regulate privately owned airports.

Even then, the model rules were only provided as a “guide” and “template” and were not

intended or required to be adopted exactly as written. The City acknowledged the rules should

be modified to suit the particular airport, depending on its size and type, but also acknowledged

that the model rules provided no guidance as to what kinds of modifications might be required

based on these considerations. Instead, the City admitted that it would make these decisions. 7

We conclude the Ordinance’s requirement that the owner of the airport adopt rules and

regulations “consistent” with the model rules provided virtually no guidance to those who could

be charged with violating it or to those responsible for enforcing it. Consequently, this provision

is likewise unconstitutionally vague. Therefore, the trial court erred in granting the City’s

motion for summary judgment. 8

The City also complains the trial court erred by granting Homeowners’ declaratory and

injunctive relief with respect to the City’s Ordinance and CPSB’s application of that Ordinance.

In view of our disposition of the proceeding points, we conclude reversal and remand of these

7 The Ordinance provided no timeline or mechanism for preapproval of any such rules and regulations, and required any rules adopted be maintained by the airport manager and subject to review “upon reasonable request.” 8 Noell also raises other complaints regarding the Ordinance’s provisions, but in view of our disposition of these complaints, it is unnecessary to determine those issues. Noell did not file a cross-motion for summary judgment and we must therefore remand his claims to the trial court regardless.

20 points is necessary to permit the trial court to determine what, if any, injunctive relief is

appropriate. 9

APPEAL OF BILLINGSLEY APPELLANTS

We now turn to the complaints raised by the Billingsley appellants. The jury found (1)

Billingsley and the Zoning Committee breached their fiduciary duties to Homeowners, (2) CBA

breached the Note and Contract, (2) CBA breached the Air Park Restrictions, (3) the Zoning

Committee breached its duties by failing to enforce those restrictions, (4) Billingsley was

responsible for the conduct of the Zoning Committee, (4) Homeowners had easements to use the

landing strip for aviation purposes, and (5) the Billingsley appellants interfered with

Homeowner’s easements. The trial court’s final judgment awarded actual damages, and

declaratory and injunctive relief based on these findings.

In their first issue, the Billingsley appellants contend the trial court’s judgment must be

reversed because the trial judge that signed the judgment, the Honorable Scott Becker, did not

preside over the jury trial. The Billingsley Appellants specifically complain that Judge Becker’s

judgment granted declaratory and injunctive relief even though Judge Becker “heard no

evidence.”

The record shows Judge Curt Henderson presided over the case from the time it was

filed, throughout two temporary injunction hearings, numerous motions for summary judgment,

and finally the three-week jury trial. Judge Henderson, however, retired shortly after the jury

9 We note the City opposes a remand of Homeowners’ claims with respect to the constitutionality of the Ordinance because Homeowners did not file a notice of appeal from the trial court’s summary judgment on that issue. However, the trial court’s judgment included declaratory and injunctive in favor of Homeowners based on their constitutional complaints. Although the City contends its complaints regarding the injunctive and declaratory relief would entitle it to rendition, not remand, we disagree. After reviewing the record, it is apparent that the alleged error concerns the trial court’s granting injunctive and declaratory relief that was beyond the scope of relief requested in the summary judgment proceedings. Because our disposition of the previous points necessitates remand regardless, we need not reach this issue.

21 returned its verdict, and before signing a final judgment. Judge Becker then succeeded Judge

Henderson. Homeowners filed a motion requesting Judge Henderson be appointed as a visiting

judge to allow him to continue to preside over the case, which would have allowed Judge

Henderson to sign the final judgment. The Billingsley appellants, however, opposed the motion,

and Judge Becker denied it.

In the subsequent post-verdict proceedings, both the Billingsley appellants and

Homeowners requested Judge Becker to sign their respective proposed judgments, both of which

included declaratory and injunctive relief. The Billingsley appellants filed a brief in support of

their proposed judgment, which included proposed findings of fact and conclusions of law. In a

footnote in that brief, the Billingsley appellants noted there could be “questions” regarding Judge

Becker’s “authority” that might render the judgment “void,” but they expressly stated they did

not object to Judge Becker proceeding. They then invited Judge Becker to review the trial

evidence and urged him to accept their proposed judgment.

On appeal, the Billingsley appellants now assert Judge Becker had no “authority” to sign

a final judgment that included injunctive or declaratory relief and, therefore, the judgment, or at

least portions of it, are “void.” The Billingsley appellants do not dispute a successor judge has

authority over cases in which another judge presided, and even has authority to enter a judgment

based on prior summary judgment rulings or a jury verdict. See Tex. R. Civ. P. 18; see also

Gholson v. Thorn, 597 S.W.2d 568, 571 (Tex. Civ. App.—Dallas 1980, no writ); Walker v.

Arlington Disposal Co., 05-01-00283-CV, 2002 WL 84439, *5-6 (Tex. App.—Dallas Jan. 23,

2002, no pet.) (not designated for publication). They, however, assert the trial judge’s

“authority” to do so is limited to cases in which the entry of judgment is “purely ministerial,” and

that a successor judge does not have the authority to grant declaratory or injunctive relief when

22 he did not preside at trial. Finally, and most importantly, they assert because this error is

jurisdictional, they neither waived the error nor are estopped from asserting it now.

A judgment is void only when it is apparent the court rendering it lacked (1) jurisdiction

over the parties or property; (2) jurisdiction over the subject matter; (3) jurisdiction to enter the

particular judgment; or (4) the capacity to act as a court. Karstetter v. Voss, 184 S.W.3d 396,

402 (Tex. App.—Dallas 2006, no pet.); see also Browning v. Placke, 698 S.W.2d 362, 363 (Tex.

1985). The Billingsley appellants direct this Court to no authority that the complained-of error is

“jurisdictional.” Instead, they direct us to cases acknowledging that Texas Rule of Civil

Procedure 18 allows a successor judge to dispose of unresolved matters in a case, but stating the

rule does not “allow” a successor judge to render judgment without hearing evidence. See Bexar

Cnty. Ice Cream Co., Inc. v. Swensen’s Ice Cream Co., 859 S.W.2d 402, 404-05 (Tex. App.—

San Antonio 1993, writ denied); W.C. Banks v. Team, Inc., 783 S.W.2d 783, 786-87 (Tex.

App.—Houston [1st. Dist.] 1990, no writ). The Billingsley appellants therefore conclude that

because Judge Becker did not hear the evidence, the complained-of error affected his “authority”

and any error is “jurisdictional.” See, e.g., Greene v. State, 324 S.W.3d 276, 280-81 (Tex.

App.—Austin 2010, no pet.) (concluding that retired judge, not sitting by assignment, had “no

authority” because he lacked capacity to act as a court).

The terms authority and jurisdiction are not however synonymous. See Stine v. State, 935

S.W.2d 443, 445 (Tex. App.—Waco 1996, pet. ref’d) (explaining that “lack of authority” is not

synonymous with “lack of jurisdiction”) (citing Mireles v. Waco, 502 U.S. 9, 13 (1991)). The

Texas Supreme Court has held that a successor judge’s order granting a motion for new trial

raising evidentiary grounds was not void, even though the successor judge heard no evidence in

the case. See Porter v. Vick, 888 S.W.2d 789, 790 (Tex. 1994), overruled on other grounds by In

23 re Baylor Med. Ctr. At Garland, 280 S.W.3d 227 (Tex. 2008). In reaching this conclusion, the

court relied in part on Texaco, Inc. v. Pennzoil Co., 729 S.W.2d 768, 846–47 (Tex. App.—

Houston [1st Dist.] 1987, writ ref’d n.r.e.). In Texaco, the original trial judge became ill three

months into a lengthy trial. Id. at 845. Another judge was substituted to preside over the

remainder of the trial proceedings, including the preparation of the charge, rulings on Texaco’s

motions for judgment and judgment n.o.v., and its motion for new trial. On appeal, Texaco

complained of the substitution, which it timely objected to, because the substitute judge was

unfamiliar with significant testimony. Id. at 846. The Houston First Court of Appeals concluded

the substitution was not error. Although the Houston Court relied in part on the fact that the jury

in that case was the fact finder, the Court did not suggest the substituted judge could perform

only ministerial functions. Id. at 846-47. Indeed, the successor judge in that case would

necessarily have been required to make rulings and exercise its discretion based on evidence

presented before he succeeded the original judge.

Here, as in Texaco, the jury was the fact finder, and even the declaratory and injunctive

relief was based primarily on the jury’s fact findings. We acknowledge Judge Becker was

required to make legal determinations and exercise discretion based on the trial evidence in

awarding this relief, but the record shows, at both parties’ request, he reviewed the extensive trial

record. 10 We conclude the complaint the Billingsley appellants now raise did not implicate Judge

Becker’s jurisdictional authority. Cf., U.S. Bank, Nat. Ass’n v. Am. Reality Trust, Inc. 275

S.W.3d 647, 650 (Tex. App.—Dallas 2009, pet. denied) (noting after bench trial, original trial

judge entered extensive fact findings awarding damages, attorney’s fees, and expenses, but new

10 The question of whether imminent harm exists to warrant injunctive relief is a legal question for the court, not a factual question for the jury. Operation Rescue-Nat’l v. Planned Parenthood of Houston of SE Tex., Inc., 975 S.W.2d 546, 554 (Tex. 1998). While this question may turn on disputed facts, the Billingsley appellants do not direct this Court to any such factual dispute. Homeowners contend there was none, and direct this Court to evidence that Billingsley himself testified that he would violate the Ordinance in the absence of injunctive relief.

24 trial judge then amended final judgment and findings of fact, reducing damage award and

denying attorney’s fees); Atlas Metal Works v. City of Dallas, 30 S.W.2d 431, 432 (Tex. Civ.

App.—Dallas 1930, no writ) (stating parties can agree to allow trial court to consider evidence

even if not “formally introduced”); Cf. Eubanks v. State, 11 S.W.3d 279, 281 (Tex. App.—

Texarkana 1999, no pet.) (concluding elected judge who did not preside over revocation had

authority to sign judgment even though visiting judge heard case). Therefore, error, if any, did

not render the judgment void. We resolve the first issue against the Billingsley appellants.

In their second issue, the Billingsley appellants challenge the judgment against the

Zoning Committee for breach of fiduciary duty, intentional interference with Homeowners’

easements, and failure to enforce property restrictions. They argue these portions of the trial

court’s judgment must be reversed because Homeowners failed to rebut a statutory presumption

of reasonableness set out in section 202.004(a) of the Texas Property Code. See TEX. PROP.

CODE ANN. § 202.004(a) (West 2007). Section 202.004(a), entitled “Enforcement of

Restrictive Covenants,” allows a “homeowners’ association” to bring claims against

homeowners for breach of restrictive covenants. Subsection (a) provides that an exercise of

“discretionary” authority by a homeowners association is presumed to be reasonable unless the

court determines, by a preponderance of the evidence, that the exercise of discretionary authority

was arbitrary, capricious, or discriminatory. TEX. PROP. CODE ANN. § 202.004(a) (West 2007).

The Billingsley appellants do not assert the evidence is insufficient to prove, by a

preponderance of the evidence, that the Zoning Committee acted in an arbitrary, capricious, or

discriminatory manner. Instead, they assert the trial court, as the statutory fact finder on this

issue, expressly found Homeowners failed to meet their burden to make this showing. They

further assert this finding compels the conclusion that the Zoning Committee acted “reasonably,”

25 which conflicts with – and overrides - the jury’s findings that the Zoning Committee breached its

fiduciary duty, intentionally interfered with Homeowners’ easements, and breached the

restrictive covenants.

First, we do not agree the record shows the trial court expressly found Homeowners

failed to show the Zoning Committee acted in an arbitrary, capricious, or discriminatory manner.

To support this contention, the Billingsley appellants rely on a statement the trial court made

(after the jury returned its liability verdict) in response to the Homeowners’ request for attorneys’

fees under section 202.004. In denying this request, the trial court stated it was going to rule

“no” at that “point,” stating it did not understand enough about section 202.004 (which provides

for punitive damages), and that it did not think Homeowners met their burden of proof. See

TEX. PROP. CODE ANN. § 202.004(a) (West 2007). We do not agree this constitutes an

express finding regarding the Zoning Committee’s conduct.

Regardless, assuming without deciding, section 202.004 applies to Homeowners’ claims,

and further assuming the Zoning Committee is a “homeowners’ association” as contemplated by

section 202.004, the Billingsley appellants have failed to show reversible error. The Billingsley

appellants assert section 202.004 requires we set aside the jury’s liability findings against the

Zoning Committee. However, the Billingsley appellants do not assert the trial court erred in

submitting these liability issues to the jury, they do not direct us to what, if any, objections, they

made to submitting these issues to the jury, or direct us to where in the record they otherwise

raised section 202.004 as a basis to deny Homeowners’ relief in the trial court.

As a prerequisite to presenting a complaint for appellate review, the record must show the

complaint was made in the trial court and the trial court ruled on the complaint. See TEX. R. APP.

P. 33.1(a); Johnson v. Oliver, 250 S.W.3d 182, 190-91 (Tex. App.—Dallas 2008, no pet.); see

26 also Walder v. State, 85 S.W.3d 824, 826 (Tex. App.—Waco 2002, no pet.) (stating that to

comply with Texas Rule of Appellate Procedure 38.1(i), an appellant should include explanation

of how issue has been preserved or why no preservation was required); Jarvis v. Rocanville

Corp., 298 S.W.3d 305, 312 (Tex. App.—Dallas 2009, pet. denied) (concluding party waived

error when it failed to provide record citation showing it raised argument in trial court and

obtained ruling). Further, if a trial court must resolve an issue before the jury can properly

perform its fact-finding role, a party must object in time for the trial court make an appropriate

ruling without having to order a new trial. See Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000);

Holland v. Wal-Mart Stores, Inc., 1 S.W.3d 91, 94 (Tex. 1999). The record before us is

voluminous, consisting of nineteen volumes of clerk’s record and thirty-one volumes of

reporter’s record, including sixteen volumes of exhibits. An appellate court has no duty to

search a voluminous record without guidance from the appellant to determine whether an

assertion of reversible error is valid. Dallas Ind. Sch. Dist. v. Finlan, 27 S.W.3d 220, 237 (Tex.

App.—Dallas 2000, pet. denied); See Tex. R. App. P 38.1(i). We conclude the Billingsley

appellants waived any error predicated on section 202.004(a). We resolve the second issue

against the Billingsley appellants.

In their third issue, the Billingsly appellants assert the judgment against the Zoning

Committee and Billingsley on Homeowners’ breach of fiduciary duty claims must be reversed

because no fiduciary relationship existed. The trial court determined the Zoning Committee and

Billingsley, as a member of that committee, owed Homeowners a fiduciary duty as a matter of

law. In this issue, the Billingsley appellants assert it erred in doing so.

A fiduciary relationship is not limited to cases where legal relations create a fiduciary

duty as a matter of law, but it exists in all cases in which influence has been acquired and abused,

27 in which confidence has been reposed and betrayed, and the origin of the confidence is

immaterial, and may be moral, social, domestic or merely personal. Tex. Bank and Trust. Co. v.

Moore, 595 S.W.2d 502, 507 (Tex. 1980) (citing Higgins v. Chicago Title & Trust, Co., 312 Ill.

11, 18, 143 N.E. 482, 484 (1924). A fiduciary relationship can arise when the parties are “under

a duty to act for or give advice for the benefit of another upon matters within the scope of the

relationship,” and when “a special confidence is reposed on another who in equity and good

conscience is bound to act in good faith and with due regard to the interests of the one reposing

confidence.” See Moore, 595 S.W.2d at 507 (citing Lappas v. Barker, 375 S.W.2d 248, 250 (Ky.

1964).

The Zoning Committee was established under the terms of a Note and Contract that

required all lots be sold pursuant to restrictive covenants. Paragraph 15 of the restrictive

covenants authorized the Zoning Committee to “act as a governing body with legal authority to

make those rulings necessary or call for an election to protect the best interests of the community

until an incorporated government can be established.” The property owners were given the right

to elect three of these members. The Zoning Committee executed certain by-laws to effectuate

the intent and purposes of the restrictive covenants. The by-laws provided, “[t]he Zoning

Committee will enforce the contractual requirement that ‘each purchaser, his heirs or assigns will

maintain each tract owned by him in a clean and sightly condition,’” and, “[w]here necessary,

appropriate action may be taken by the Zoning Committee to protect home owners by

maintaining a lot and assessing the owner.” The by-laws further provided “[t]he Zoning

Committee may take such other actions [it] deem[s] necessary to protect the best interests of the

community under the authority granted them by the Air Park-Dallas covenants and restrictions.”

28 The Billingsley appellants assert neither the obligations in the Air Park restrictions nor

the Zoning Committee’s by-laws can give rise to a fiduciary duty because there was no fiduciary

relationship that predated those obligations. When a fiduciary duty is alleged to arise from a

“business relationship,” “to give full force to contracts,” we do not recognize such a relationship

lightly. Burleson State Bank v. Plunkett, 27 S.W.3d 605, 611 (Tex. App.—Waco 2000, pet.

denied) (citing Thigpen v. Locke, 363 S.W.2d 247, 253 (Tex. 1962)). The Texas Supreme Court

has explained its reluctance to allow contractual obligations to create fiduciary duties as

necessary to respect the rights of the parties, and particularly sophisticated parties, in the

commercial context, to “define the terms of their business relationships.” See Nat’l Plan Adm’rs,

Inc. v. Nat’l Health Ins. Co., 235 S.W.3d 695, 702 (Tex. 2007); see also Willis v. Donnelly, 199

S.W.3d 262, 278 (Tex. 2006). To protect these interests, the Court has held that that to impose a

fiduciary duty in a “business transaction,” the relationship must exist before the agreement made

the basis of the suit. Nat’l Plan, 235 S.W.3d at 702; Schlumberger Tech. Corp. v. Swanson, 959

S.W.2d 171, 177 (Tex. 1997).

The Zoning Committee did not engage in a “business transaction” in a “commercial

context,” and was not a contracting party acting in its own self-interest. Rather, the Zoning

Committee was created for the sole purpose of governing Air Park, and the Restrictions provided

it would do so in the community’s “best interests.” The Air Park by-laws reflect the Zoning

Committee’s purpose. Fiduciary duties are equitable in nature and circumstances giving rise to

such duties are not subject to hard and fast rules. Nat’l Plan, 235 S.W.3d at 702; Moore, 595

S.W.2d at 508. The general prohibition of imposing fiduciary duties in a “business transaction”

is based on the proposition that parties to a contract should be free to pursue their own interests

and to define the terms of their relationship. See Nat’l Plan, 235 S.W.3d at 702; see also Crim

29 Truck & Tractor v. Navistar Intern. Trans. Corp, 823 S.W.2d 591, 594 (Tex. 1992). That

prohibition would thus not operate to bar a fiduciary relationship from arising when an entity is

created to act in the best interests of another, and voluntarily undertakes to act in another’s

interest, which is the very foundation of a fiduciary relationship. Under these circumstances, we

cannot agree no fiduciary duty existed as a matter of law.

In reaching this conclusion, we reject the Billingsley appellants’ claim that no fiduciary

duty exists as a matter of law because the Zoning Committee had discretion regarding

enforcement of the restrictive covenants and because the Homeowners also had the right to

enforce the restrictive covenants. 11 The Billingsley appellants have provided no reasoned

analysis why either of these facts, standing alone, would prevent a fiduciary duty from arising.

Cf. Sassen v. Tanglegrove Townhouse Condo. Assoc., 877 S.W.2d 489, 492 (Tex. App.—

Texarkana 1994, writ denied) (explaining that even when exercise of duties is placed in agent’s

absolute discretion, agent must still use good faith and act reasonably in discharge of duties.).

And the authorities they cite as support for this contention are clearly distinguishable on their

facts. See Simms v. Lakewood Village Prop. Owners Assoc., 895 S.W.2d 779, 787 (Tex. App.—

Corpus Christi 1995, writ denied) (plaintiff claimed homeowners’ associations’ fiduciary duty

arose from a provision which gave both the plaintiff and the association the identical “right” to

enforce restrictive covenants); Harris v. The Spires Council of Co-Owners, 981 S.W.2d 892, 898

(Tex. App.—Houston [1st Dist.] 1998, no writ) (plaintiff claimed condominium owners’

association’s fiduciary duty arose from an “exclusive authority” that the Court determined did

not exist).

11 The Billingsley appellants also assert section 82.103 of the property code imposing fiduciary duties on board members of a condominium association does not impose fiduciary duties on the Zoning Committee. See TEX. PROP. CODE ANN. § 82.103(a) (West 2007). We agree, and we do not rely upon it for our conclusion. However, the provision illustrates that different policy considerations apply to this type of relationship than the policy considerations courts consider when determining whether a fiduciary duty exists in a commercial context.

30 The Billingsley appellants also assert any fiduciary obligations the Zoning Committee

may have had to Homeowners under Paragraph 15 ceased when an “incorporated government”

was established. The only record citation they provide is to the City of Carrollton’s annexation

of the airport property, including the eastside business lots. Initially, we note the jury expressly

found the Zoning Committee had authority over the eastside business lots specifically “under

Paragraph 15.” The Billingsley appellants have not challenged this finding on appeal. Further,

the Billingsley appellants direct this Court to no evidence that an incorporated government was

established to govern the home sites. We conclude the Billingsley appellants have not shown the

Zoning Committee’s obligations under paragraph 15 ceased upon the City’s limited annexation.

The Billingsley appellants next assert the trial court’s judgment “must be reversed”

because of an “incorrect” jury instruction that the Zoning Committee and Billingsley owed

Homeowners a fiduciary duty “because a special relationship existed between them.” See Crim

Truck & Tractor, 823 S.W.2d at 594. The jury was not asked to determine whether a fiduciary

duty existed, and the Billingsley appellants do not assert the jury should have made that

determination. The Billingsley appellants have not explained how they preserved any alleged

error, or articulated how this instruction requires reversal of the trial court’s judgment. See

Jarvis, 298 S.W.3d at 312 (concluding party waived error when it failed to provide record

citation showing it raised argument in trial court and obtained ruling).

Finally, the Billingsley appellants contend the evidence is legally and factually

insufficient to support the jury’s finding that Billingsley breached his fiduciary duty to

Homeowners. To find Billingsley breached his fiduciary duty, the charge required the jury to

find, and the jury found, among other things, that Billingsley failed to exercise the most

31 scrupulous honesty toward homeowners. The Billingsley appellants assert this finding must be

set aside because there is no evidence of “dishonesty.”

In this issue, the Billingsley appellants have failed to direct this Court to the appropriate

standard under which we are to review the evidence, fail to discuss the evidence under the

appropriate standard of review, and fail to explain how the evidence Homeowners did present

failed to meet their burden at trial. 12 Indeed, the Billingsley appellants fail to discuss, or even

acknowledge, the evidence Homeowners relied on to support their assertion that Billingsley

failed to exercise the most scrupulous honesty toward homeowners. For example, Homeowners

presented evidence that Billingsley did not inform Homeowners, or even his limited partner

Noell, that he was seeking disannexation from Hebron, which laid the groundwork for his

subsequent actions in causing the City to annex the property, getting the Ordinance passed, and

ultimately violating the Ordinance, which resulted in the City ordering the airport closed.

Instead, the Billingsley appellants ignore this evidence and pluck out portions of the voluminous

record that they assert show Billingsley was always “completely candid about his intention to

develop the property for commercial use.”

In conducting a legal sufficiency review of the evidence, we must consider all of the

evidence in the light most favorable to the verdict and indulge every reasonable inference that

would support it. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). When a party

attacks the legal sufficiency of an adverse finding on which it did not have the burden of proof, it

must demonstrate that there is no evidence to support the adverse finding. Croucher v.

12 In their reply to Homeowners’ brief, the Billingsley appellants complain that Homeowners’ “discussion of the evidence of breach of fiduciary duty is essentially non-responsive.” They specifically assert Homeowners failed to identify evidence that Billingsley “hid” his intentions to develop the property from anyone. Appellants have failed to provide any argument or authority that affirmative evidence of concealment was necessary for Homeowners to meet their burden to show Billingsley failed to act with the most scrupulous honesty toward homeowners. We further note, it is not Homeowners obligation to show the trial court’s judgment is correct, but appellants burden to show error requiring reversal. See Tex. R. App. P. 38.1(i).

32 Croucher, 660 S.W.2d 55, 58 (Tex. 1983); Bellino v. Comm’n for Lawyer Discipline, 124

S.W.3d 380, 385 (Tex. App.—Dallas 2003, pet. denied). We will sustain a legal sufficiency or

“no evidence” challenge if the record shows one of the following: (1) a complete absence of

evidence of a vital fact, (2) rules of law or evidence bar the court from giving weight to the only

evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more

than a scintilla, or (4) the evidence establishes conclusively the opposite of the vital fact.

See City of Keller, 168 S.W.3d at 810. While the basis for the Billingsley appellants’ sufficiency

complaint is not entirely clear, reviewing the substance of their argument, we conclude they

have, at best, raised a legal sufficiency point asserting they conclusively proved the opposite of a

vital fact. Specifically, they assert evidence that Billingsley was honest about purchasing the

property as an “investment” and evidence that Homeowners became aware (from various

sources) that he later took actions to develop the property conclusively proves Billingsley did not

fail to act with the “most scrupulous honesty.” We cannot agree, and resolve the third issue

In their fourth issue, the Billingsley appellants assert Homeowners’ claims against them

are “barred” by the “Noerr-Pennington Doctrine.” The Billingsley appellants do not explain

how they preserved this issue for review, whether preservation was required, or provide us with

the appropriate burdens of proof, standard of review, or proper framework in which to analyze

this issue. Walder, 85 S.W.3d at 826; see also Jarvis, 298 S.W.3d at 312. Nor are these issues

apparent from the independent review of the voluminous record and applicable law we have

undertaken. See also Finlan, 27 S.W.3d at 237 (appellate court under no duty to search

voluminous record); Robertson v. SW Bell Yellow Pages, Inc., 190 S.W.3d 899, 903 (Tex.

33 App.—Dallas 2006, no pet.) (appellate court will not make appellant’s arguments for her). We

conclude this issue has not been adequately briefed. See TEX. R. APP. P. 38.1(i).

Moreover, we note the Billingsley appellants have failed to adequately address whether

the doctrine applies to Homeowners’ claims for breach of contract and breach of fiduciary duty

in the first instance, focusing instead primarily on whether Homeowners proved an exception to

the doctrine. The Noerr-Pennington doctrine, as initially articulated, provides immunity from

“antitrust liability” to those who petition the government for redress. See generally E. RR

Presidents Conf. v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961); see also Prof. Real Estate

Inv., Inc. v. Columbia Pict. Indust., Inc., 508 U.S. 49, 55-56 (1993). The doctrine has been

generally expanded to provide immunity from liability for other state-created causes of action.

See BE & K Const. C. v. NLRB, 536 U.S. 516, (2002) (unfair labor practices); see also Nunag-

Tanedo v. E. Baton Rouge Parish Sch. Bd., 711 F.3d 1136, 1139 (9th Cir. 2013) (noting Noerr-

Pennington has been extended to other “statutory” schemes). Some courts have further extended

the doctrine to provide immunity to certain common-law causes of action. See Video Intern.

Prod., Inc. v. Warner-Amex Cable Commc’ns, Inc., 858 F.2d 1075, 1084 (1988); see also Nunag-

Tanedo, 711 F.3d at 1141 n.2 (noting uncertainty as to whether Noerr-Pennington applies to

state law claims).

In the trial court and on appeal, Homeowners alleged that despite these expansions, the

Noerr-Pennington doctrine does not apply to claims for breach of contract or breach fiduciary

duty, when liability is based on breaches of duties voluntarily undertaken between parties.

Relying on RRR Farms v. Am. Horse Prot. Ass’n, Inc., 957 S.W.2d 121, 126-29 (Tex. App.—

Houston [14th Dist.], pet. denied), the Billingsley appellants argue the doctrine does apply to

such claims. In that case, the plaintiff did not raise claims for breach of contract or breach of

34 fiduciary duty, and did not argue the doctrine did not apply to the tort claims it did raise, which

were based on anti-competitive behavior. See id. The Houston Fourteenth Court of Appeals

nevertheless generally stated that, although the doctrine was initially developed in the anti-trust

context, it had since been expanded and applied “regardless of the underlying cause of action”

asserted. Id. at 129. Based on the context in which the Court made the statement, we do not

agree the Court considered, much less determined, the particular issue raised here.

The Billingsley appellants also rely on Azzar v. Primebank, FSB, 499 N.W.2d 793, 795-

96 (Mich. Ct. App. 1993), which held the doctrine bars claims for breach of fiduciary duty. The

only reasoning offered by that court was that the doctrine is a “principal of constitutional law”

that protects First Amendment petitioning activities. Id. at 796. We cannot, based on the record

and briefing before us, conclude this alone provides an adequate basis upon which to extend

Noerr-Pennington to the claims before us. When parties enter into voluntary contractual or

fiduciary relationships, they routinely agree to undertake certain obligations and duties that may

require them, or prohibit them, from doing certain things they would otherwise have an absolute

constitutional right to do, or not do. Expanding the doctrine to bar all such claims, regardless of

the nature of the obligation between the parties or the particular breach alleged, could have

significant, far reaching, and unintended consequences. 13 Without adequate briefing or analysis

of this issue, we decline to reverse the trial court’s judgment on this basis.

Finally, the Billingsley appellants have also failed to show that even if the doctrine

applied, it would operate to bar Homeowners’ claims. Although Homeowners clearly presented

evidence of, and relied on, Billingsley’s conduct in securing passage of the airport Ordinance,

Homeowners’ claims were not dependent on such conduct. The Billingsley appellants have not

13 For example, certain businesses rely on their fiduciaries to act on their behalf before government bodies.

35 shown even if the doctrine applies, it requires reversal of the trial court’s judgment. The fourth

issue is without merit.

In their fifth issue, the Billingsley appellants contend the “judgment for breach of the

Note and Contract and breach of the restrictive covenants should be reversed.” The jury found

CBA breached the Note and Contract “by failing to maintain the landing area in such a way as to

timely comply with the City’s ordinances.” Here, the Billingsley appellants complain there is

not “any evidence” CBA assumed the obligations in the Note and Contract. But, the jury was

not asked to make this determination. In the absence of a timely and appropriate charge

objection that is reurged on appeal, appellate courts measure the sufficiency of the evidence by

the charge as given to the jury. St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 530 (Tex. 2002). To

the extent the Billingsley appellants are not challenging the jury’s finding, they have failed to

direct us to any trial court ruling on which they predicate error.

Regardless, in asserting CBA was not bound by the Note and Contract, the Billingsley

appellants argue CBA did not expressly assume the obligations in the Note and Contract when it

purchased its interest in Air Park. In doing so, the Billingsley appellants ignore that the trial

court’s judgment was not based on an express assumption, but on the trial court’s conclusion that

the obligations in the Note and Contract “ran with the land.” The Billingsley appellants purport

to address this issue in a footnote, asserting we should disregard that at as a basis for affirming

the trial court’s judgment because Homeowners “did not obtain a jury finding” that the

obligations ran with the land.

The Billingsley appellants have failed to provide any argument or authority that this was

a fact question necessitating a jury finding. Nor have the Billingsley appellants asserted that if a

finding was required, the trial court could not properly make the finding under rule 279 of the

36 rules of civil procedure. See TEX. R. CIV. P. 279 (explaining circumstances when omitted

findings may be made or deemed found by trial court in support of a jury’s verdict).

Finally, the Billingsley appellants’ suggest, in a single sentence, that the obligations in

the Note and Contract did not run with the land because the Note and Contract provided the

obligations were binding on Air Park Associates “heirs and assigns.” They assert this “successor

language” would be superfluous if the obligations ran with the land. However, such successor

language, while not required, evidences an intent that obligations do run with the land, not the

contrary. See Musgrave v. Brookhaven Lake Prop. Owners Ass’n, 990 S.W.2d 386, 395 (Tex.

App.—Texarkana 1999, pet. denied).

Although we have previously concluded the Billingsley appellants complaint that the

Note and Contract did not require CBA to operate an airport is not a proper challenge to the

jury’s breach of contract finding, we will consider this complaint insofar as the Billingsley

appellants incorporate this arguments in its challenge to the trial court’s declaratory judgment

that CBA’s obligation to maintain the landing area requires that it operate an airport.

The Note and Contract required CBA to make the landing strip available to homeowners

and provided the landing strip would be “owned, controlled, and maintained” by CBA at no cost

to the homeowners. According to the Billingsley appellants, this duty to maintain did not

include the duty to operate an airport. Placing the term “maintain” in the proper context, the

Note and Contract required CBA, at its expense, to preserve the landing strip and keep it in

existence for Homeowners’ use as a landing strip. See Orix Cap. Markets, LLC v. Wash. Mut.

Bank, 260 S.W.3d 620, 625 (Tex. App.—Dallas 2008, no pet.) (maintain means to “keep in

existence or continuance; preserve; retain.”). In order to do this, due largely to its own actions,

CBA had to comply with the Ordinance. Although CBA takes great issue with interpreting its

37 maintenance obligation such that it is forced to operate an airport in perpetuity at no charge to

Homeowners, the Note and Contract provide the remedy to deal with this precise issue.

Specifically, if the cost to maintain the landing strip ever ceased to be economically feasible,

CBA could avoid these obligations by donating the landing strip to homeowners.

The Billingsley appellants next assert CBA did not breach the restrictive covenants. The

jury found CBA breached the restrictive covenants by failing to keep its lots in a “clean and

sightly condition.” According to the Billingsley appellants, this finding must be set aside

because CBA was prohibited from doing so because of the provisions of a temporary injunction

entered in a different case. CBA has failed to direct us to where in the record this injunction was

admitted into evidence, and it identifies the injunction as “CX 45,” i.e. a “court’s exhibit,”

suggesting it was not admitted into evidence. 14 It is not our duty to search the voluminous record

to determine whether this exhibit was admitted into evidence or to otherwise locate evidence that

would support an appellant’s contentions. See Most Worshipful Prince Hall Grand Lodge v.

Jackson, 732 S.W.2d 407, 412 (Tex. App—Dallas 1987, writ ref’d n.r.e.). We resolve the fifth

issue against the Billingsley appellants.

In their sixth issue, the Billingsley appellants contend the trial court’s judgment “cannot

be supported” by Homeowners’ easement claims. The Billingsley appellants assert even if

Homeowners possessed an express easement, the easement did not “encompass the eastside

business lots or otherwise require [CBA] to operate an airport.” However, the trial court did not

conclude Homeowners had an easement on the eastside business lots, and the trial court’s

14 The Billingsley appellants also direct us to Billingsley’s testimony that the temporary injunction entered into in the other case did not allow him to “do anything” with the hangars and that Noell was “in charge” of the hangars. The testimony is insufficient to conclusively establish CBA was legally prohibited from complying with the Air Park Restrictions.

38 determination that CBA had a duty to operate an airport arose from its duty to maintain the

landing strip, not the Homeowners’ easements. We have previously disposed of this complaint.

The Billingsley appellants next assert there is legally and factually insufficient evidence

to show CBA interfered with Homeowners’ easements. According to the Billingsley appellants,

CBA did not interfere with Homeowners’ easements because it never impeded Homeowners’

actual “access” to the landing area or taxiways. The jury found CBA interfered with the

Homeowners’ easements by making compliance with the City’s ordinances more difficult or

burdensome. 15 The Billingsley appellants have failed to attack the sufficiency of the evidence

under the jury charge as given. St. Joseph Hosp., 94 S.W.3d at 530. Further, appellants wholly

fail to discuss the extensive trial evidence of their admitted and deliberate efforts to have the City

close the landing strip, so the property could be developed commercially. We conclude they

have failed to show reversible error, and resolve the sixth issue against the Billingsley appellants.

In their seventh issue, the Billingsley appellants assert “the permanent injunction is

improper and must be dissolved.” An applicant for injunctive relief must demonstrate (1) the

existence of a wrongful act; (2) the existence of imminent harm; (3) the existence of irreparable

injury; and (4) the absence of an adequate remedy at law. Webb v.Glenbrook Owners Ass’n,

Inc., 298 S.W.3d 374, 384 (Tex. App.—Dallas 2009, no pet.); Priest v. Tex. Animal Health

Comm’n, 780 S.W.2d 874, 875 (Tex. App.—Dallas 1989, no writ). Whether to grant a permanent

injunction is ordinarily within the sound discretion of the trial court and, on appeal, review of the

trial court’s action is limited to the question of whether the trial court clearly abused its

discretion. Webb, 298 S.W.3d at 384; Priest, 780 S.W.2d at 875. Because an injunction is an

15 The jury’s findings against Billingsley and the Zoning Committee are based on findings they tortiously interfered with Homeowners’ easements. The Billingsley appellants fail to properly analyze the evidence under this theory.

39 equitable remedy, a trial court weighs the respective conveniences and hardships of the parties

and balances the equities. Webb, 298 S.W.3d at 383-384.

The Billingsley appellants first two complaints concern Homeowners’ alleged failure to

show they suffered an irreparable injury for which they had no adequate remedy at law. They

assert Homeowners can show no irreparable injury based on CBA’s failure to comply with the

Ordinance, because, by virtue of the trial court’s pretrial partial summary judgment order, the

Homeowners can comply with the Ordinance themselves. They also contend Homeowners

cannot show they lack an adequate remedy at law because they can (and were) compensated by

damages for injuries suffered as a result of CBA’s past failures to comply with the Ordinance. In

making these points, the Billingsley appellants fail to direct this Court to the applicable law

concerning what constitutes irreparable injury. Nor do appellants discuss the evidence

Homeowners relied on to show irreparable injury. Instead, they rely entirely on their assertion

Homeowners can “avoid” any injury caused by CBA’s refusal to comply with the Ordinance by

abating any violations themselves, bringing legal action to enforce the restrictive covenants, and

recovering money damages for having to abate any violations.

An injury is irreparable if the injured party cannot be adequately compensated in

damages or if the damages cannot be measured by any certain pecuniary standard. Milwee-

Jackson Joint Venture v. Dallas Area Rapid Transit, 350 S.W.3d 772, 782 (Tex. App.—Dallas

2011, no pet.); Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002). That is, the

applicant has to establish there is no adequate remedy at law for damages. Milwee-Jackson, 350

S.W.3d at 782. An adequate remedy at law is one that is as complete, practical, and efficient to

the prompt administration of justice as is equitable relief. Id.

40 We cannot agree that Homeowners’ ability to resort to self-help remedies and perform

obligations that CBA is required to perform shows no irreparable injury. Nor does

Homeowners’ recovery of actual damages for costs it incurred in remedying past violations

establish they have an adequate remedy at law. Indeed, a court may properly grant injunctive

relief to stop a wrong and remedy it, and award past damages to the injured party for the period

of time the wrong existed. See Marin Real Estate Partners, L.P. v. Vogt, 373 S.W.3d 57, 76-77

(Tex. App.—San Antonio 2011, no pet.).

Finally, the Billingsley appellants generally complain that the injunction is overly broad,

vague and indefinite. They direct us to two provisions of the injunction; the prohibition that they

take any actions that would “injure, impair, hinder, and harm the [Homeowners’] easement

rights,” and the prohibition that they take “any actions that would put any additional tax burdens,

encumbrances on or risks to the Homeowners’ easements.” Again, extensive testimony was

presented at trial concerning the Billingsley appellants’ various efforts to destroy Homeowners’

easements. Homeowners also presented testimony directly germane to their concern the

Billingsley appellants would continue to seek out other methods of destroying their easements to

accomplish their purpose. Yet, the Billingsley appellants discuss none of this evidence or the

harm the trial court was attempting to remedy by the injunction.

The Texas Supreme Court has stated:

[A]n injunction decree must be as definite, clear and precise as possible and when practicable it should inform the defendant of the acts he is restrained from doing, without calling on him for inferences or conclusions about which persons might well differ and without leaving anything for further hearing. But obviously the injunction must be in broad enough terms to prevent repetition of the evil sought to be stopped, whether the repetition be in form identical to that employed prior to the injunction or (what is far more likely) in somewhat different form calculated to circumvent the injunction as written.

41 San Antonio Bar Ass’n v. Guardian Abstract & Title Co., 156 Tex. 7, 291 S.W.2d 697, 702 (Tex.

1956) (citation omitted). Under this argument, the Billingsley appellants simply recite the

complain-of provisions and generally assert they are forced to guess as to their meanings. This

argument does not alone suffice to show the injunction is overly broad. See Vaughn, 288 S.W.3d

at 938-39 (concluding that injunction enjoining “any other interference” and “any conduct

calculated to interfere with, impair or disparage” appellant’s business relationships with

customers in specified area provided reasonable detail of acts sought to be restrained). Further,

without a discussion of the evidence offered at trial, it is impossible for this Court to

appropriately evaluate the scope of the injunction in the context of the wrong the trial court was

attempting to remedy. To the extent the Billingsley appellants suggest this Court should sua

sponte review the various other provisions of the injunction to determine if they meet the

necessary standards, “[w]e have no duty—or even right—to perform an independent review of

the record and applicable law to determine whether there was error.” Bullock v. Am. Heart

Ass’n, 360 S.W.3d 661, 665 (Tex. App.—Dallas 2012, pet. denied).

The Billingsley appellants also complain the injunction improperly “refers” to documents

not made “part of” the injunction. The Billingsley appellants first complain of paragraph 16 of

the injunction, which ordered CBA to “comply with the terms of the Note and Contract and the

Restrictions on Air Park Dallas.” The Restrictions were included as an attachment to the trial

court’s judgment, but the Note and Contract was not. According to the Billingsley appellants,

because the Note and Contract was not made part of the injunction, this provision of the

injunction is void and must be reversed. They rely on rule 683 of the rules of civil procedure for

support. See Tex. R. Civ. P. 683. Rule 683 does not, however, prohibit the mere reference to

documents that are not made part of the injunction. Rather, it provides that the injunction must

42 describe in reasonable detail, and not by reference to the complaint or other document, the act or

acts sought to be restrained. See Tex. R. Civ. P. 683. Here, the trial court’s judgment itself

included the relevant text of the Note and Contract, specifically Paragraph B. To the extent the

injunction also required CBA to comply with portions of the Note and Contract not otherwise

included in the judgment, we modify Paragraph 16 of the injunction to require CBA to comply

with the terms of “Paragraph B of the Note and Contract.” See Computek Computer & Office

Supplies, Inc. v. Walton, 156 S.W.3d 217, 224 (Tex. App.—Dallas 2005, no pet.) (modifying

overly broad injunction).

The Billingsley appellants also complain of paragraph 6 of the injunction, which requires

them to “cease all actions and activities that constitute a violation of the Airport Ordinance or

any other applicable City of Carrollton codes or ordinances, or any other laws or regulations, that

relate to the Landing Strip Area and Taxiways where the failure to do so would adversely affect

the Homeowners’ right to access and use the Landing Strip Area and Taxiways for Aviation

Purposes.” They assert this portion of the injunction is void because the specific laws and

regulations were not included in the trial court’s judgment. However, so long as an injunction

reasonably describes the activities to be enjoined, it may refer to such items as laws or

ordinances. See Layton v. Ball, 396 S.W.3d 747, 752 (Tex. App.—Tyler 2013, no pet.); Maloy

v. City of Lewisville, , 848 S.W.2d 380, 385 (Tex. App—Fort Worth 1993, no writ) (holding that

reference to ordinance not improper reference to “external document,” because injunction

“sufficiently describes the act sought to be enjoined [, and] reference to the ordinance, as stated

in the injunction, is merely to give further notice as to the enjoined conduct . . .”), disapproved of

on other ground by Schleuter v. City of Fort Worth, 947 S.W.2d 920 (Tex. App—Fort Worth

1997, pet. denied). Here, the trial court enjoined the Billingsley appellants from taking actions to

43 interfere with Homeowners’ easements. The additional provisions requiring the Billingsley

appellants to cease violations of applicable laws that would adversely affect Homeowners’

easements merely gave further notice of the conduct that was prohibited. We resolve the seventh

In their eighth issue, the Billingsley appellants generally complain of the trial court’s

award of declaratory relief to Homeowners. The only additional complaint the Billingsley

appellants raise under this issue that we have not previously disposed of concerns the trial court’s

declaration that, “Under Paragraph B . . . Plaintiffs are owners of a donation option relating to

the landing strip and taxiways.” They assert this declaration violates the Rule Against

Perpetuities.

The Billingsley appellants fail to direct this Court to any particular trial court ruling they

assert was erroneous, fail to direct us to the applicable burden of proof at trial or standard of

review on appeal, and fail to show where or whether they preserved the alleged error for review

or explain why they were not required to do so. Instead, the Billingsley appellants merely recite

the Rule against Perpetuities, provide a bare citation to the record where their expert witness

testified the donation option violated the Rule (but neglect to provide a similar citation to

Homeowners’ expert who testified it did not), and conclude the declaratory relief must be

vacated.

The Billingsley appellants have not provided any substantive legal argument, authority,

or analysis attempting to apply the Rule to the specific facts of this case. Nor have the

Billingsley appellants shown that if the Rule does apply, it necessarily results in invalidation of

44 the donation option. 16 Accordingly, we conclude this issue is inadequately briefed and presents

nothing to review. We resolve the eighth issue against the Billingsley appellants.

In their ninth issue, the Billingsley appellants complain of what they refer to as “Casteel

Error.” The Billingsley appellants’ assert this error occurred because the jury charge did not

require the jury to determine which of several types of easements they interfered with. They

assert this presents a “quintessential ‘Casteel problem.’” See Crown Life Ins. Co. v. Casteel, 22

S.W.3d 378, 388 (Tex. 2000). The Billingsley appellants misunderstand the procedural posture

and holding of Casteel. Casteel provides for the proper harm analysis an appellate court must

perform after an appellant has shown charge error. Specifically, if a theory of liability was

improperly submitted to the jury over a party’s timely objection, and that theory was submitted

in broad form with a valid theory of recovery, the Court of Appeals may not conclude error was

harmless based on the properly submitted theory. Instead, the court must presume the error was

harmful. See Casteel, 22 S.W.3d at 389-90. Here, the Billingsley appellants have not presented

a point of error complaining that the trial court erred in submitting any of the easement theories.

Absent properly preserved and raised charge error, 17 there is no harm analysis to perform under

Casteel. We resolve the ninth issue against the Billingsley appellants.

In their tenth issue, the Billingsley appellants contend we should “vacate the award of

attorney’s fees as damages.” The jury awarded Homeowners actual damages in the amount of

16 In its judgment, the trial court stated that the “donation option” was a contract right for allocating the obligation to maintain the landing strip. In reviewing the “donation option,” it is helpful to recognize how it operated. The Note and Contract created an easement on the landing strip. “Title” to the landing area remained with grantor with the associated obligation to maintain the landing area for at least ten years. After that time, if the landing strip ceased to be “economically feasible,” it would be “donated” to the homeowners, who would then be required to maintain the landing strip. If the landing strip was no longer used as such, title would revert back to the grantor. Consequently, as a practical matter, the “donation option” did nothing other than alter the obligation to maintain the landing strip, while preserving Homeowners’ vested easements.

17 We agree with the Billingsley appellants they need not object under Casteel. See Romero v. KPH, Consol, Inc.., 166 S.W.3d 212, 229 (Tex. 2005). As Romero points out, an appellant preserves error by objecting to the charge error that creates the “Casteel problem.” See id. If the trial court properly sustains the objection, and refuses to submit the invalid theory, there is no error. See id.

45 the reasonable and necessary costs they incurred in abating violations of the Ordinance, as well

as “reasonable and necessary attorney[’]s fees incurred in connection with the proceedings

involving the City and [CPSB] . . . .”

The Billingsley appellants assert these damages are barred by this Court’s opinions in

Lopez v. Vehicle Removal Corp., 225 S.W.3d 891, 893 (Tex. App.—Dallas 2007, pet. denied)

and Burnside Air Conditioning and Heating, Inc., 113 S.W.3d 889, 898 (Tex. App.—Dallas

2002, no pet.). These cases held that attorney’s fees expended in an earlier lawsuit cannot be

recovered as damages in a subsequent suit. It is apparent from a review of those cases, and the

authority on which they relied, that they were based on the “American Rule,” which prohibits

recovery of attorney’s fees unless provided for by statute or contract. The Texas Supreme Court

subsequently decided Akin, Gump, Stauss, Hauer & Feld, L.L.P. v. Nat’l Dev. & Research Corp.,

299 S.W.3d 106, 120-123 (Tex. 2009). In Akin Gump, the Texas Supreme Court explained “the

American Rule” applied only to cases in which the claimant was seeking attorney’s fees for

prosecuting or defending the case that was being litigated. See id. at 120. The court held the rule

did not apply in cases where the plaintiff was seeking fees incurred in a previous case that were

caused by their attorney’s malpractice, as opposed to fees for the case currently being litigated.

Id. The Court determined that unless there was some other reason the fees should not be

recoverable, the issue was an evidentiary one, and the fees could be recovered if proven under

ordinary causation standards. The Court ultimately held there was no such other reason, and the

attorney’s fees proximately caused by the defendant’s attorney’s negligence were recoverable.

Id.

46 According to the Billingsley appellants, the Texas Supreme Court “made clear” its

holding applied only to attorney malpractice claims. 18 But the Court did not expressly limit its

holding to cases involving attorney malpractice. More importantly, the Court’s reasoning does

not support such a limited application of Akin Gump. Rather, the Supreme Court’s opinion was

not based on the nature of the claim at issue, but on this Court’s misapplication of the American

Rule to bar the recovery of attorney’s fees as actual damages that were incurred in other matters.

See id. at 120-22.

Here, the claimed fees were not expended in prosecuting Homeowners’ claims against

the Billingsley appellants in this suit, or any prior suit. Nor were the fees expended in pursuing

Homeowners’ claims against the City or CPSB in this litigation. Under Aiken Gump, the

American Rule does not apply under these circumstances. The Billingsley appellants have

articulated no other reason Homeowners attorney’s fees are not recoverable as damages or

otherwise asserted Homeowners failed to prove their conduct proximately caused these damages.

Therefore, we resolve the tenth issue against the Billingsley appellants.

In conclusion, we affirm the trial court’s judgment reversing CPSB’s Order closing the

airport. We reverse the trial court’s judgment declaring the Ordinance facially valid, and remand

Noell’s claims to the trial court regarding the constitutionality of the Ordinance. We also reverse

the portions of the judgment granting Homeowners declaratory and injunctive relief against the

18 Appellants also rely on Texas Electric Utility Construction., Ltd.v. Infrasource Underground Construction. Services., 12-09-00287-CV, 2010 WL 2638066 (Tex. App.—Tyler Jun. 30, 2010, pet. dism’d) to support its assertion that Akin Gump applies only to attorney malpractice cases. In that case, the Tyler Court held it was “not at liberty to adopt a theory of recovery (i.e. Plaintiff’s claim for attorney’s fees as damages) that has not been enacted by the Legislature or adopted by the Texas Supreme Court . . . .” Id. at *3. The Supreme Court granted the plaintiff’s petition for review in that case, but subsequently dismissed it pursuant to the parties’ agreement. Regardless, the plaintiff in that case relied upon the “tort of another” exception set out in the Second Restatement of Torts as its basis for recovery of the attorney’s fees. The Texarkana Court, noting the Texas Supreme Court did not adopt the “tort of another” exception in Akin Gump, refused to award attorney’s fees under that theory. We agree with the Tyler Court to the extent that the “tort of another” exception has not been adopted by the Texas Supreme Court, and we do not rely on that exception here. However, we disagree with the Tyler Court to the extent it relied on the American Rule alone as operating to bar the recovery of attorneys’ fees as damages that were incurred in prior litigation.

47 City and CPSB and remand those claims to the trial court for further proceedings consistent with

this opinion.

We modify Paragraph 16 of the injunction against CBA to require CBA to “comply with

the terms of Paragraph B of the Note and Contract.” We affirm the judgment in all other

respects.

/Michael J. O'Neill/ MICHAEL J. O'NEILL JUSTICE

111377F.P05

48 S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

DAVID W. NOELL, Appellant/Intervenor On Appeal from the 219th Judicial District Court, Collin County, Texas V. Trial Court Cause No. 219-00926-2009. Opinion delivered by Justice O’Neill. CITY OF CARROLLTON and Justices Bridges and Lewis participating. CARROLLTON PROPERTY STANDARDS BOARD, Appellants/Appellees’

CROW-BILLINGSLEY AIR PARK, LTD, HENRY BILLINGSLEY, and AIR PARK- DALLAS ZONING COMMITTEE, Appellants

AIR PARK COMMON AREA PRESERVATION ASSOCIATION, CHAD MAISEL, AMY EKLUND, AND DALE BURGDORF, Appellees

In accordance with this Court’s opinion of this date, we AFFIRM the trial court’s judgment vacating the Carrollton Property Standards Board’s (CPSB) Order. We REVERSE the trial court’s judgment declaring the City of Carrollton’s Ordinance facially valid. We REMAND appellant David W. Noell’s claims regarding the constitutionality of the Ordinance to the trial court for further proceedings consistent with this opinion.

49 We also REVERSE those portions of the judgment granting declaratory and injunctive relief to Air Park Common Area Preservation Association, Chad Maisal, Amy Eklund, and Dale Burgdorf against the City and the Carrollton Property Standards Board on their claims regarding the constitutionality of the Order and Ordinance and REMAND those claims to the trial court for further proceedings consistent with this opinion.

We MODIFY Paragraph 16 of the trial court’s permanent injunction in favor of Air Park Common Area Preservation Association, Chad Maisal, Amy Eklund, and Dale Burgdorf against Crow-Billingsley Air Park, Ltd to read “Crow-Billingsley shall comply with the terms of Paragraph B of the Note Contract and the Restrictions on Air-Park Dallas.”

As modified, the trial court’s judgment against Crow-Billingsley Air Park, Ltd., Henry Billingsley, and Air Park-Dallas Zoning Committee is AFFIRMED in all other respects.

We ORDER that appellees Air Park Common Area Preservation Association, Chad Maisal, Amy Eklund, and Dale Burgdorf recover their costs of this appeal from appellants Crow- Billingsley Air Park, Ltd., Henry Billingsley, and Air Park Dallas Zoning Committee.

We ORDER that appellant David W. Noell recover the costs of his appeal from the City of Carrollton and the Carrollton Property Standards Board.

Judgment entered this 9th day of April, 2014.