Thursday, August 11, 2011

Breach of Restrictive Covenant: Are attorney's fees available?

Suit for Breach of Restrictive Covenant - Statutory Attorney's fees to prevailing party
In “an action based on breach of a restrictive covenant pertaining to real property, the court shall allow to a prevailing party who asserted the action reasonable attorney’s fees in addition to the party’s costs and claim.” Tex. Prop. Code Ann. § 5.006 (Vernon 2010).

In determining reasonable attorney’s fees, the court shall consider (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the expertise, reputation, and ability of the attorney; and (4) any other factor. Id. The award of attorney’s fees under section 5.006 is mandatory, and a court has no discretion to not award fees to a prevailing party. Ski Masters of Texas, LLC v. Heinemeyer, 269 S.W.3d 662, 674 (Tex. App.—San Antonio 2008, no pet.); Mitchell v. LaFlamme, 60 S.W.3d 123, 130 (Tex. App.—Houston [14th Dist.] 2000, no pet.).

SOURCE: Houston Court of Appeals - 01-09-01086-CV - 8/11/11

In their seventh issue, the Duncans argue that the trial court erred in not awarding them their attorney’s fees because the evidence established, as a matter of law, that DEHA breached the restrictive covenants.

The jury did not reach the attorney’s fees question because it was predicated upon the jury awarding some amount of damages for the special assessment.[11] We have held that the evidence conclusively established that DEHA had failed to comply with the Declaration when it imposed the $250 special assessment and the Duncans were entitled to recover $250 as their damages for their paying this unauthorized special assessment. We have also held that the Duncans are entitled to a judgment in their favor on their claim for breach of restrictive covenants.


Accordingly, we hold that the trial court erred in not awarding the Duncans their attorney’s fees, and we remand this matter to the trial court for an award of attorney’s fees. Briargrove Park Prop. Owners, Inc. v. Riner, 867 S.W.2d 58, 62 (Tex. App.—Texarkana 1993, writ denied) (remanding for attorney’s fees award under section 5.006).

We sustain the Duncans’ seventh issue.

SOURCE: Houston Court of Appeals - 01-09-01086-CV - 8/11/11

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