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Click here for the full text of this decision FACTS:Mary C. and B.J. Linden own a lot in the Indian Beach subdivision on Galveston Island subject to certain covenants and deed restrictions. B.J. is Mary’s ex-husband. B.J. has no ownership interest in the property at issue in this case, but he helps Linden manage the property and was extensively involved in the sequence of events leading to this litigation. Indian Beach Property Owners’ Association is the entity responsible for enforcing deed restrictions in the Indian Beach subdivision. Paragraph three of the deed restrictions on Mary’s property prohibits construction, inter alia, of fences until the association’s architectural control committee approves plans for such improvements. On Feb. 25, 2004, Mary submitted a formal application to the committee, hoping to obtain the committee’s approval to construct a chain-link fence around the perimeter of her property. Susan Gonzales, an agent of the association, called Mary and B.J. on March 15, 2004, and informed them that the committee denied Mary’s application. B.J. and Mary believed that the committee improperly denied the application, because Gonzales referenced as one of the reasons for the denial a setback provision in the deed restrictions that was not applicable to Mary’s property. Gonzales suggested that Mary reapply and express her contentions to the committee. Gonzales told B.J. that a letter explaining Mary’s position would be a sufficient reapplication. During that discussion, Gonzales emphasized that the committee had another 45 days to act on the new application. B.J. submitted Mary’s reapplication letter on March 15, 2004, and Gonzales received it the same day. The association took no action with regard to Mary’s reapplication within the next 45 days. On May 5, 2004, Mary and B.J. sent a letter to the association advising it that, according to paragraph three of the deed restrictions, the architectural control committee “was presumed to have approved Linden’s chain-link fence, and construction of the fence would commence immediately.” Mary and B.J. completed construction of the fence before the end of May 2004. The association then sued Mary and B.J., for violating the deed restrictions by building the fence without the approval of the architectural control committee. Indian sought to permanently enjoin Mary and B.J. from building a chain-link fence on Linden’s property and an order mandating that Mary and B.J. remove the existing fence. At trial, the issues upon which Mary and B.J. sought declaratory judgment were expanded to include a determination of whether the deed restrictions prohibit chain-link as an allowable fence material and whether the chain-link fence on Linden’s property is in harmony with existing structures in the subdivision. The jury returned a verdict in favor of Mary and B.J., and the trial court entered a judgment on the verdict. The association appealed. HOLDING:Affirmed as modified. First, the court held that the trial court did not abuse its discretion in declining to award injunctive relief in favor of the assocation mandating that Mary remove her chain-link fence, because the record supported an implied finding that the association’s own inaction resulted in the presumed approval of Linden and B.J.’s fence. Thus, the court found that the association failed to show that the balance of equities plainly favored an injunction. The court found that legally and factually sufficient evidence supported the jury’s finding that Mary and B.J.’s construction of the fence was not a wrongful act. Similarly, the court held that Mary and B.J. did not violate the deed restrictions or any other substantive law when they built the fence without the written approval of the architectural control committee. The court also held that the trial court’s declaratory judgment that Mary and B.J.’s construction of the fence was in compliance with the deed restrictions applicable to Linden’s property was not purely a factual dispute. The judgment declares Linden and B.J.’s “status” with regard to the fence and the deed restrictions on Linden’s property. Thus, the court found that a declaratory judgment was a proper remedy to resolve the dispute. Finally, the court concluded that the trial court erred in a section of its declaratory judgment, in which the trial court stated that the deed restrictions applicable to Mary’s property allowed the use of chain-link fence as a fencing material and that the use of chain-link fence on Linden’s property “is in harmony with the existing structures in the Indian Beach subdivision.” The court therefore modified the trial court’s judgment and deleted paragraphs one and two but otherwise affirmed the judgment. OPINION:Bland, J.; Radack, C.J., and Jennings and Bland, J.J.

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