Richard Mark Dudley and Deanie Palmer Dudley v. Texas Municipal Power Agency

Court of Appeals
Tenth Appellate District of Texas

10-25-00265-CV

Richard Mark Dudley and Deanie Palmer Dudley,
Appellants

v.

Texas Municipal Power Agency,
Appellee

On appeal from the
272nd District Court of Brazos County, Texas
Judge John L. Brick, presiding
Trial Court Cause No. 18-001737-CV-272

JUSTICE SMITH delivered the opinion of the Court.

MEMORANDUM OPINION

Richard Mark Dudley and Deanie Palmer Dudley appeal from the trial

court’s adverse judgment in this declaratory judgment action brought by Texas

Municipal Power Agency (TMPA).1 Appellants raise ten issues attacking the

declarations and injunctions in the judgment, as well as the award of attorneys’

1 Pursuant to Subchapter C, Chapter 163 of the Texas Utilities Code, the cities of Bryan, Denton,

Garland, and Greenville created a municipal power agency known as the Texas Municipal Power
Agency. See TEX. UTIL. CODE ANN. §§ 163.051-.068.
fees. We modify the trial court’s judgment to vacate the $110,281.25 award of

attorneys’ fees for the associate attorneys and paralegals and, as modified,

affirm the remainder of the judgment.

BACKGROUND

In 1986, Appellants purchased property in Brazos County, Texas which

is subject to a 1979 Easement granted to TMPA for electric power and

communication lines. Pursuant to the Easement, TMPA has the right to access

the property to maintain its lines. Appellants have the right to use the

property but may not interfere with the exercise of TMPA’s rights. Over the

course of several years, Appellants placed a propane tank, a swing set, and

other playground equipment in the Easement area, installed landscaping,

including an oak tree, in the Easement area, and built a four-foot-tall retaining

wall that extends into the Easement area. TMPA considered these items to be

obstructions that were not allowed under the terms of the Easement. In June

2017, TMPA notified Appellants and asked them to remove the obstructions.

Discussions between the parties did not lead to a resolution of the issue.

In 2018, TMPA filed suit against Appellants because they installed

“various structures and other obstructions” within the Easement area. TMPA

alleged a breach of contract cause of action and sought a declaration clarifying

Dudley v. Tex. Mun. Power Agency Page 2
the rights of the parties pursuant to the Easement, as well as injunctive relief.

TMPA later nonsuited the breach of contract claim.

On August 21, 2018, Appellants filed their answer asserting numerous

affirmative defenses and a counterclaim for declaratory and injunctive relief.

On July 26, 2019, TMPA filed its first combined traditional and no evidence

motions for partial summary judgment requesting four specified declarations

and a permanent injunction and asserting that Appellants’ counterclaim and

affirmative defenses fail as a matter of law. On September 3, 2019, Appellants

filed an amended counterclaim for additional declarations, wrongful

injunction, trespass, breach of contract, and easement abuse. They again

sought injunctive relief.

On September 9, 2019, the trial court granted TMPA’s first traditional

and no evidence motions for partial summary judgment. On March 2, 2020,

TMPA filed its second combined traditional and no evidence motions for partial

summary judgment addressing the causes of action alleged in Appellants’

amended counterclaim and asserting entitlement to judgment as a matter of

law. The trial court granted these motions on April 7, 2020.

A trial before the court was held on July 1, 2021, solely on the issue of

attorneys’ fees. The court later invited briefing by the parties on the issue of

reasonableness. There are no entries in the clerk’s record between November

Dudley v. Tex. Mun. Power Agency Page 3
30, 2021 and January 9, 2023, at which time counsel for TMPA requested a

setting for a status conference. The final judgment was finally signed on

September 30, 2023. The final judgment 1) incorporated verbatim the

declaratory and injunctive relief requested in TMPA’s first combined

traditional and no evidence motions for partial summary judgment and

awarded in the September 9, 2019 summary judgment; 2) ordered that

Appellants take nothing on their claims and causes of action as reflected in the

court’s April 7, 2020 summary judgment; and 3) awarded TMPA attorneys’ fees

in the amount of $223,556.25 as well as conditional fees if the case is appealed.

The trial court also signed findings of fact and conclusions of law in support of

the judgment. This appeal ensued.

DECLARATORY RELIEF

In their first issue, Appellants contend the trial court erred by awarding

declaratory relief because those declarations conflict with the express language

of the Easement. They argue that the trial court rewrote the Easement in

TMPA’s favor. They complain that the declarations 1) delete the limitation

that TMPA can trim or cut down trees only to the extent necessary to prevent

possible interference with the operation of any of the lines or to remove possible

hazards to the lines; 2) prohibit Appellants from building anything on the

easement property; 3) ignore Appellants’ right to build fencing; and 4)

Dudley v. Tex. Mun. Power Agency Page 4
impermissibly give TMPA the right, in its sole judgment, to remove the

existing retaining wall.

Standard of Review

The purpose of a declaratory judgment action is to establish the existing

rights, status, or other legal relationships between the parties. TEX. CIV. PRAC.

& REM. CODE ANN. § 37.002(b); Wright v. Jones, 674 S.W.3d 704, 709 (Tex.

App.—Waco 2023, no pet.). Declaratory judgments are reviewed under the

same standards as other judgments and decrees. TEX. CIV. PRAC. & REM. CODE

ANN. § 37.010. We look to the procedure used to resolve the issue at trial to

determine the standard of review on appeal. Wright, 674 S.W.3d at 709.

We review the trial court's decision to grant summary judgment de novo.

Eagle Oil & Gas Co. v. TRO-X, L.P., 619 S.W.3d 699, 705 (Tex. 2021). The

movant for traditional summary judgment has the burden of showing that

there is no genuine issue of material fact, and it is entitled to judgment as a

matter of law. TEX. R. CIV. P. 166a(h)(2); Eagle Oil & Gas Co., 619 S.W.3d at

705. Once the movant establishes its right to summary judgment as a matter

of law, the burden shifts to the nonmovant to present evidence sufficient to

raise a genuine issue of material fact, thereby precluding summary judgment.

Lujan v. Navistar, Inc., 555 S.W.3d 79, 84 (Tex. 2018). To determine if the

nonmovant has raised a fact issue, we review the evidence in the light most

Dudley v. Tex. Mun. Power Agency Page 5
favorable to the nonmovant, crediting evidence favorable to that party if

reasonable jurors could, and disregarding contrary evidence unless reasonable

jurors could not. B.C. v. Steak N Shake Operations, Inc., 512 S.W.3d 276, 279

(Tex. 2017).

Applicable Law

An easement is a nonpossessory property interest authorizing its holder

to use another’s property for particular purposes. Lance v. Robinson, 543

S.W.3d 723, 736 (Tex. 2018). The servient estate holder, that is, the owner of

the underlying fee, cannot interfere with the dominant estate holder’s use of

an easement for the easement’s purposes. Target Corp. v. D&H Props., LLC,

637 S.W.3d 816, 829 (Tex. App.—Houston [14th Dist.] 2021, pet. denied).

Thus, any use by the servient estate holder that interferes with the exercise of

the dominant estate holder’s rights must yield. Id.

When construing an easement, “courts deploy the rules of contract

interpretation and look to the easement’s express terms to determine its

scope.” Sw. Elec. Power Co. v. Lynch, 595 S.W.3d 678, 686 (Tex. 2020). Courts

look to the entirety of the easement and “harmonize its terms to give effect to

all of the provisions.” Id. The language in an easement is to be given its plain

grammatical meaning unless to do so would defeat the parties’ intent. DeWitt

Cty. Elec. Coop., Inc. v. Parks, 1 S.W.3d 96, 101 (Tex. 1999). If the easement’s

Dudley v. Tex. Mun. Power Agency Page 6
terms can be given a definite or certain meaning, then the language is not

ambiguous, and the court is obligated to interpret the contract as a matter of

law. Id. at 100.

Discussion

The easement granted to TMPA provides in pertinent part, that the

easement and right of way shall include the right of
ingress and egress over and upon said land for the
purpose of constructing, operating, . . . repairing, . . .
maintaining and removing such electric power and
communication lines, . . . the right to trim and cut
down trees and shrubbery to the extent, in the sole
judgment of the Agency necessary to prevent possible
interference with the operation of any of said lines or
to remove possible hazards thereto, and the right to
remove or prevent the construction on said land of any
or all buildings, structures and obstructions. If any
such buildings, structures or obstructions are
constructed or permitted by grantor to exist on said
land without prior written consent of Agency then the
Agency shall have the right to remove same from such
land and Grantor agrees to pay to Agency the
reasonable cost of such removal . . . .

Grantor reserves the right to use said land for general
agricultural and grazing purposes, provided such use
shall not include the growing of trees thereon or any
other use that might, in the sole judgment of Agency,
interfere with the exercise by the Agency of the rights
hereby granted. . . . Grantor also reserves the right to
erect fences not more than 8 feet high across and upon
said land provided all such fences shall have gates,
openings or removable sections at least 10 feet wide
which will permit Agency reasonable access to all
parts of said land.

Dudley v. Tex. Mun. Power Agency Page 7
The trial court ordered declaratory relief as follows:

The Dudleys were not entitled to place or construct
and are not entitled to maintain the Obstructions
within the Easement Area without TMPA’s consent;

The Easement vested TMPA with the right of ingress
and egress over, across, and upon the Easement Area
for the purposes, among others, of (i) trimming and
cutting down trees and shrubbery within or extending
into the Easement Area and (ii) removing the
Obstructions;

The Dudleys were not entitled to place or construct
and are not entitled to maintain the retaining wall
within the Easement Area without TMPA’s consent;
and

If at any time in the future TMPA, in its sole judgment,
determines that the retaining wall interferes with the
exercise of its rights in and to the Easement Area,
TMPA is entitled to remove the retaining wall.

1) Did the trial court delete a limitation regarding TMPA’s right to trim

and cut trees?

The Easement grants TMPA the right of ingress and egress and the right

to trim and cut trees and shrubbery to the extent, in its sole judgment, TMPA

deems necessary to prevent interference with the operation of the lines or to

remove possible hazards. Because the trial court’s declaration did not include

a requirement that TMPA trim and cut trees and shrubbery only to the extent

Dudley v. Tex. Mun. Power Agency Page 8
necessary, Appellants contend the declaration results in a removal of a

limitation to TMPA’s Easement rights.

As evidence supporting its motion for summary judgment, TMPA

attached the transcript of testimony taken at the November 15, 2018 hearing

on TMPA’s request for a temporary injunction. Ross Owen, transmission and

distribution director for Garland Power and Light, testified that, since 2013,

Garland performs transmission operation, maintenance, and construction for

TMPA. He explained that trees and landscaping in the Easement area are a

problem because Garland does not have full access to its right-of-way to get

vehicles, including very large trucks, up and down the line throughout the

right-of-way. Additionally, he testified that Garland is regulated by the North

American Electric Reliability Corporation, a governing body that audits how it

maintains its right-of-ways, among other things. Garland is required to have

a vegetation management plan. Maintenance of the right-of-way is important

for reliability of the line and the ability to efficiently maintain the line.

Furthermore, trees can present a safety risk because they can catch on fire.

The Easement gives TMPA the right to maintain the lines as it may find

necessary and the right to trim and cut down trees and shrubbery to the extent,

in its sole judgment, it deems necessary to prevent interference with the

operation of the lines or to remove hazards. The Easement also provides that

Dudley v. Tex. Mun. Power Agency Page 9
Appellants cannot use the land in any way that interferes with TMPA’s rights,

including growing vegetation. Under the plain language of the Easement,

what to cut has always been in TMPA’s sole discretion. Construing the

Easement in its entirety, the wording of the declaration does not exclude a

limitation or increase TMPA’s rights. See Lynch, 595 S.W.3d at 686.

2) Does the declaration prohibit Appellants from building anything on the

easement property?

The Easement grants TMPA “the right to remove or prevent the

construction on [the easement property] of any or all buildings, structures and

obstructions.” Further, if any buildings, structures, or obstructions are

constructed without TMPA’s prior written consent, TMPA has the right to

remove them. The trial court’s declaration provides that Appellants are not

entitled to place or construct, and are not intitled to maintain, obstructions

within the Easement area without TMPA’s consent. The trial court also

declared that TMPA has the right of ingress and egress for the purpose of

removing obstructions. Appellants assert the trial court created a blanket

prohibition against building in the Easement area.

Ross Owen testified that objects in the right-of-way block Garland’s

trucks and pose a safety hazard due to the possibility of downed power lines.

His testimony explains the need for TMPA to have the right to remove all

Dudley v. Tex. Mun. Power Agency Page 10
obstructions on the Easement property. The Easement specifically gives

TMPA the right to “prevent the construction on said land of any or all

buildings, structures and obstructions.” Also, TMPA has the right to remove

obstructions Appellants construct on the Easement property when Appellants

fail to obtain prior written consent. Giving the words of the Easement their

plain meaning, Appellants are not entitled to construct or maintain buildings,

structures, or obstructions within the Easement area. We conclude the trial

court did not create a blanket prohibition against building in the Easement

area but merely interpreted the Easement. See id.; Parks, 1 S.W.3d at 101.

3) Does the declaration ignore Appellants’ right to build fencing?

The Easement provides that Appellants reserve the right to erect fences

not more than eight feet high across and upon the Easement property provided

all such fences shall have gates, openings, or removable sections at least ten

feet wide which will permit TMPA reasonable access to all parts of the

Easement property. The declaration does not mention fences at all. The

declaration provides that Appellants were not entitled to construct the

retaining wall within the Easement area without TMPA’s consent and TMPA

is entitled to remove the retaining wall. Appellants assert this declaration

misinterprets and rewrites the parties’ rights relating to the retaining wall.

Dudley v. Tex. Mun. Power Agency Page 11
Appellants contend their retaining wall, a portion of which lies in the

Easement area, is a “masonry fence” allowed by the Easement and that it does

not block TMPA’s access to the Easement property. The summary judgment

evidence shows that Richard Dudley built the retaining wall in conjunction

with a berm to control drainage. Installation of the retaining wall resulted in

different elevations within the Easement area. He knew at the time he built

the wall that a portion of it lies within the Easement property. At the hearing

on the temporary injunction, Richard Dudley testified that, due to the

retaining wall, a TMPA truck cannot pull into his driveway and go beyond the

retaining wall into the Easement area. There is no gate in the retaining wall,

and it is not built in a manner to allow sections to be removed.

The term “fence” is defined as a barrier intended to prevent escape or

intrusion or to mark a boundary, especially such a barrier made of posts and

wire or boards. Fence, MERRIAM-WEBSTER DICTIONARY, https://www.merriam-

webster.com/dictionary/fence. A “retaining wall” is a wall that is built to keep

the land behind it from sliding. Retaining wall, MERRIAM-WEBSTER

DICTIONARY, https://www.merriam-webster.com/dictionary/retaining%20wall.

We disagree with Appellants’ argument that the retaining wall can be

considered a fence and therefore allowed by the terms of the Easement. See

Melder v. Phillips Pipe Line Co., 539 S.W.2d 208, 211 (Tex. App.—Austin 1976,

Dudley v. Tex. Mun. Power Agency Page 12
writ ref’d n.r.e.) (held that low rock wall erected to prevent soil erosion, referred

to as retaining wall, is not considered to be a fence). The provision of the

Easement allowing Appellants the right to build fences does not include the

right to build retaining walls without TMPA’s permission. The trial court’s

declaration that Appellants were not entitled to construct, and are not entitled

to maintain, the retaining wall without TMPA’s consent does not concern

Appellants’ right to build fences in the Easement area. This declaration

applies the plain grammatical meaning of the terms of the Easement. See

Parks, 1 S.W.3d at 101.

4) Does the declaration impermissibly give TMPA the right, in its sole

judgment, to remove the existing retaining wall?

The Easement explicitly gives TMPA the right to remove or prevent the

construction of any or all buildings, structures, and obstructions in the

Easement area. Further, if any such buildings, structures, or obstructions are

constructed or permitted by Appellants to exist in the Easement area without

TMPA’s prior written consent, the Easement gives TMPA the right to remove

same from the Easement area.

The trial court declared that, in the future, TMPA may, in its sole

discretion, remove the retaining wall if TMPA determines that it interferes

with the exercise of TMPA’s rights in and to the Easement area. Appellants

Dudley v. Tex. Mun. Power Agency Page 13
contend this declaration rewrites the Easement by giving TMPA the right to

make a determination in its sole judgment about whether the retaining wall

interferes with the exercise of TMPA’s rights in the Easement area.

The plain meaning of the term “structure” as used in the Easement

includes the term “retaining wall.” See Parks, 1 S.W.3d at 101. The Easement

reserves the Appellants’ right to use the land for certain specified uses but

restricts them from “any other use that might, in the sole judgment of [TMPA],

interfere with the exercise by [TMPA] of the rights hereby granted.” Thus, the

declaration accurately concluded that the Easement gives TMPA, in the

absence of prior written consent, the right to remove the retaining wall. See

id.

Summation

The trial court’s declarations accurately interpreted the Easement to

establish the existing rights between the parties. See TEX. CIV. PRAC. & REM.

CODE ANN. § 37.002(b); Lynch, 595 S.W.3d at 686; Wright, 674 S.W.3d at 709.

Accordingly, TMPA established its right to summary judgment on its

declaratory judgment cause of action as a matter of law. See Eagle Oil & Gas

Co., 619 S.W.3d at 705. We overrule Appellants’ first issue.

Dudley v. Tex. Mun. Power Agency Page 14
INJUNCTIVE RELIEF

In their second issue, Appellants contend the trial court erred by

granting the permanent injunctions contained in the judgment. They complain

that 1) the judgment does not set forth the reasons for the issuance of the

permanent injunctions; 2) the injunctions are vague and unclear; 3) the

injunctions are overly broad; 4) TMPA did not show irreparable injury that

justified the imposition of the permanent injunctions; and 5) the Easement

itself contains an adequate legal remedy.

Standard of Review

The grant of a permanent injunction is reviewed for abuse of discretion.

ORIX Capital Mkts., LLC v. La Villita Motor Inn, J.V., 329 S.W.3d 30, 44 (Tex.

App.—San Antonio 2010, pet. denied). Generally, that discretion is abused and

subject to reversal when the trial court misinterprets or misapplies the law or

acts arbitrarily or unreasonably. Tanglewood Homes Ass’n, Inc. v. Feldman,

436 S.W.3d 48, 76 (Tex. App.—Houston [14th Dist.] 2014, pet. denied).

When the permanent injunction is issued pursuant to the trial court’s

grant of a motion for summary judgment, we also apply the summary judgment

standard of review. Jim Rutherford Invs., Inc. v. Terramar Beach Cmty. Ass’n,

25 S.W.3d 845, 848-49 (Tex. App.—Houston [14th Dist.] 2000, pet. denied). The

movant for traditional summary judgment has the burden of showing there is

Dudley v. Tex. Mun. Power Agency Page 15
no genuine issue of material fact, and it is entitled to judgment as a matter of

law. TEX. R. CIV. P. 166a(h)(2); Eagle Oil & Gas Co., 619 S.W.3d at 705.

Applicable Law

An injunction is inherently forward-looking, intended to prohibit present

or future conduct. Luminant Energy Co. LLC v. Public Util. Comm’n of Tex.,

665 S.W.3d 166, 181 (Tex. App.—Austin 2023), rev’d on other grounds, 691

S.W.3d 448 (Tex. 2024). To be entitled to a permanent injunction, a party must

prove (1) a wrongful act, (2) imminent harm, (3) an irreparable injury, and (4)

the absence of an adequate remedy at law. Pike v. Tex. EMC Mgt., LLC, 610

S.W.3d 763, 792 (Tex. 2020).

An injunction must be “in clear, specific and unambiguous terms” so that

the party enjoined can understand the duties or obligations imposed by the

injunction and so that the court can determine whether the injunction has been

violated. Ex part Blasingame, 748 S.W.2d 444, 446 (Tex. 1988) (orig.

proceeding). Further, an injunction must be narrowly tailored to address the

offending conduct; it must not be so broad that it would enjoin a defendant

from acting within its lawful rights. TMRJ Holdings, Inc. v. Inhance Techs.,

LLC, 540 S.W.3d 202, 212 (Tex. App.—Houston [1st Dist.] 2018, no pet.).

Dudley v. Tex. Mun. Power Agency Page 16
Discussion

1) Reasons for Issuance

Because the trial court’s judgment does not include a statement of the

reasons for granting the injunctions, Appellants contend the trial court’s

judgment does not comply with Rule 683’s requirement that every order

granting an injunction set forth the reasons for its issuance. See TEX. R. CIV.

P. 683. Although the rule does not specify, the “reasons for issuance”

requirement of Rule 683 applies only to temporary or ancillary injunctions and

does not apply to permanent injunctions. Vaughn v. Drennon, 202 S.W.3d 308,

321 (Tex. App.—Tyler 2006, no pet.).

2) Vague and Unclear

Appellants assert the injunctions are both vague and unclear.

Specifically, Appellants contend the prohibition against “interfering with

TMPA’s exercise of its easement rights in the future” is too vague. They

contend the injunction fails to provide adequate notice of the specific acts they

are enjoined from performing in terms not subject to reasonable disagreement.

They also assert the injunction against “constructing and/or placing new

obstructions within the Easement Area without TMPA’s written consent” fails

to adequately inform them of the obstructions that they cannot construct or

place.

Dudley v. Tex. Mun. Power Agency Page 17
TMPA’s petition and the evidence identified specific obstructions within

the Easement area including playground equipment, a swing set, a propane

tank, a retaining wall, and landscaping. Among the rights granted to TMPA

by the Easement is the right to remove or prevent the construction of any and

all buildings, structures, and obstructions from the Easement area. TMPA’s

concerns centered around TMPA’s ability to access the electrical lines within

the Easement area to ensure the safe and reliable operation of the

transmission line. The trial court declared that Appellants are not entitled to

place or construct or maintain obstructions within the Easement area. The

injunction permanently enjoined Appellants from “constructing and/or placing

new obstructions within the Easement Area without TMPA’s written consent.”

Appellants point out that “obstructions” are not defined by the

Easement. Accordingly, we apply the plain, ordinary, and generally accepted

meaning of the term. See Heritage Res., Inc. v. NationsBank, 939 S.W.2d 118,

121 (Tex. 1996). Black’s Law Dictionary defines “obstruction” as “something

that impedes or hinders . . .; an obstacle.” Obstruction, BLACK’S LAW

DICTIONARY (12th ed. 2024). The injunction’s prohibition against constructing

or placing new obstructions in the Easement area necessarily refers to any

object that would inhibit TMPA’s ability to construct, operate, improve,

reconstruct, increase or reduce the line’s capability, repair, relocate, inspect,

Dudley v. Tex. Mun. Power Agency Page 18
patrol, maintain, or remove the electric power and communication lines. In

other words, Appellants cannot place anything in the Easement that would

block TMPA’s access. We conclude the language of the injunctions adequately

identify the acts that are restrained and what obstructions are forbidden. The

injunctions are therefore not vague and unclear.

3) Overly Broad

Appellants contend an injunction must not be so broad as to enjoin a

defendant from activities that are a lawful and proper exercise of his rights.

See Villalobos v. Holguin, 208 S.W.2d 871, 875 (Tex. 1948). They assert that

the injunction, which enjoins them from constructing or placing new

obstructions within the Easement area without TMPA’s written consent,

inappropriately forbids them from building anything in the Easement area

although, they claim, the Easement does not include that prohibition.

The Easement gives TMPA the right to remove or prevent the

construction of any or all buildings, structures, and obstacles. Further, the

Easement provides that, if any such buildings, structures or obstructions are

constructed or permitted by the landowner to exist in the Easement area

without TMPA’s written consent, then TMPA has the right to remove same

from such land. Appellants are legally bound to comply with the terms of the

Easement. See Target Corp., 637 S.W.3d at 829. Based on the wording of the

Dudley v. Tex. Mun. Power Agency Page 19
Easement, the trial court did not enjoin Appellants from activities that are a

lawful exercise of their legal rights. See Parks, 1 S.W.3d at 101.

Appellants also assert the injunction is overly broad because it gives

TMPA the power to remove the retaining wall, if, in its sole judgment, TMPA

determines that the retaining wall interferes with the exercise of its rights in

and to the Easement property. Appellants argue that they “have the power to

build fences under the Easement, so the 4-foot masonry fence complained

about by TMPA was therefore a permissible fence under the Easement.” As

explained above, we disagree that the retaining wall is a “fence” as that term

is used in the Easement.

Further, they contend the Easement does not give TMPA the power to

make a determination in its sole judgment about whether any given fence

meets the requirements of the Easement or whether something is an

obstruction. The Easement provides that Appellants’ right to use the

Easement area is limited and they cannot use it for any use that might, in the

sole judgment of TMPA interfere with TMPA’s exercise of its rights. This

includes placing a retaining wall in the Easement area to use it to control

drainage. The Easement provides that if structures or obstructions are

constructed in the Easement area without prior written consent of TMPA, then

TMPA “shall have the right to remove same.” Although the phrase “in its sole

Dudley v. Tex. Mun. Power Agency Page 20
judgment” is absent from that sentence, looking at the entirety of the

document, and giving effect to all the provisions, the Easement’s language is

clear and TMPA’s right to identify and remove obstructions, including the

retaining wall, is absolute. See Lynch, 595 S.W.3d at 686.

Additionally, Appellants assert that the injunction’s prohibition from

interfering with TMPA’s right to remove and trim tree limbs within the

Easement property is overly broad because it does not include the limitation

that TMPA is only to remove or trim trees when necessary to prevent possible

interference with the operation of the lines or to remove possible hazards.

The injunction provides that Appellants are enjoined from “interfering

with TMPA’s exercise of its easement rights in the future, including the

removal and trimming of tree limbs within the Easement Area.” As explained

previously, TMPA’s “easement rights” includes the right to maintain the lines

as it may find necessary, and the right to trim and cut down trees and

shrubbery to the extent, in its sole judgment, it deems necessary to prevent

interference with the operation of the lines or to remove hazards. Therefore,

the phrase Appellants refer to as a “limitation” is included within the group of

“easement rights” provided to TMPA in the Easement and as that phrase is

used in the injunction. The injunction is not overly broad.

Dudley v. Tex. Mun. Power Agency Page 21
4) Irreparable Injury

Appellants assert that TMPA did not provide summary judgment

evidence showing an irreparable injury that justified the imposition of the

permanent injunctions.

Appellants placed obstacles in the Easement area for a number of years

and refused to remove them until ordered to by the trial court when it granted

the temporary injunction. Where the evidence shows violations occurring and

continuing up to or near the date of trial, the probability of the continuation of

the prohibited practices is not a matter susceptible of direct proof and may

justify injunctive relief notwithstanding a defendant’s cessation of the activity

or solemn promises to cease the activity. Huynh v. Blanchard, 694 S.W.3d 648,

676 (Tex. 2024).

Moreover, there is a potential for widespread damage due to electrical

outages or fire. The evidence shows that the presence of playground equipment

under the electric power lines within the Easement area created safety

concerns for individuals using that equipment. Also, TMPA was concerned

about the possibility of fires in the Easement area, especially due to the

presence of the vegetation. Additionally, the propane tank was a safety

hazard. Any obstacles in the right of way can be a hazard for repair crews,

especially when working at night. If the right of way is not properly

Dudley v. Tex. Mun. Power Agency Page 22
maintained, the integrity and reliability of the line and safety of employees and

the public are at risk.

Further, the electrical lines crossing Appellants’ property extend from

their property on each side delivering electric power to Bryan, Texas and

surrounding areas. An outage occurring on their property due to the

obstructions would affect many other residents of Brazos County. The

potential damages from all of these safety issues are incapable of calculation.

Damages would not be an adequate remedy for these injuries. Therefore,

TMPA has proven irreparable injury. See Butnaru v. Ford Motor Co., 84

S.W.3d 198, 204 (Tex. 2002) (held that an irreparable injury occurs when the

injured party cannot be adequately compensated in damages or the damage

resulting from it cannot be measured by any pecuniary standard).

5) Adequate Remedy at Law

Appellants contend that the trial court abused its discretion in issuing

the permanent injunction because TMPA has an adequate legal remedy. They

assert that the Easement provides an express remedy because it gives TMPA

the right to remove obstructions from the Easement area.

Generally, the existence of an adequate remedy at law will bar equitable

relief. Campbell v. Wilder, 487 S.W.3d 146, 152 (Tex. 2016). A party has no

adequate remedy at law, so as to support issuance of a permanent injunction,

Dudley v. Tex. Mun. Power Agency Page 23
when damages are incapable of calculation or the party to be enjoined is

incapable of responding in damages. Recon Expl., Inc. v. Hodges, 798 S.W.2d

848, 851 (Tex. App.—Dallas 1990, no writ). As explained above, TMPA’s

damages are incapable of calculation. Further, if an otherwise complete and

adequate remedy at law will lead to a multiplicity of suits, that very fact

prevents it from being complete and adequate. Campbell, 487 S.W.3d at 152.

Here, if TMPA is required to sue Appellants each time they place an

obstruction in the Easement area, its remedy at law would not be complete and

adequate. See Campbell, 487 S.W.3d at 152.

Conclusion

The trial court was not required to set forth in its order the reasons for

granting the injunctions, the injunctions are not vague and unclear or overly

broad, and TMPA proved irreparable injury and that it had no adequate

remedy at law. TMPA proved entitlement to summary judgment as a matter

of law. See Eagle Oil & Gas Co., 619 S.W.3d at 705. Accordingly, the trial

court did not abuse its discretion by granting the permanent injunctions. See

ORIX Capital Mkts., LLC, 329 S.W.3d at 44. We overrule Appellants’ second

issue.

Dudley v. Tex. Mun. Power Agency Page 24
ATTORNEYS’ FEES

In their third issue, Appellants contend the evidence is legally and

factually insufficient to support a finding that TMPA incurred $223,556.25 in

reasonable and necessary attorneys’ fees. In their fourth issue, they contend

the trial court abused its discretion by awarding attorneys’ fees in the amount

of $223,556.25 when there was insufficient evidence that the fees were

reasonable and necessary.

Appellants contend there is no evidence showing the rates charged by

TMPA’s attorneys were in line with those prevailing in Brazos County for

similar services by lawyers of reasonably comparable skill, experience, and

reputation. Additionally, Appellants assert that, while TMPA presented

testimony as to the qualifications of lead counsel Frederick Junkin, it

presented no evidence of the qualifications of any other individual who worked

on the case.

They further assert that the number of hours worked was not

reasonable. Contending that TMPA’s billing records show excessive,

redundant, or unnecessary hours worked, Appellants identified ten instances

where, they argue, the charges are not justified by the evidence. Appellants

also assert that TMPA’s expert witness, Junkin, did not offer any non-

Dudley v. Tex. Mun. Power Agency Page 25
conclusory testimony to explain the reasonableness of the fees requested,

hourly rates, or number of hours worked.

Appellants also assert that TMPA presented no evidence of several of the

lodestar factors, and the trial court did not properly apply the lodestar method

to ascertain an appropriate attorneys’ fee award. Therefore, they argue, the

trial court abused its discretion in awarding attorneys’ fees when there was

insufficient evidence that the fees were reasonable and necessary.

In their fifth issue, Appellants assert the trial court did not explicitly

state in its findings of fact or conclusions of law that it was applying the

lodestar method. Referencing finding of fact thirteen, which refers to “Arthur

Andersen factors,” Appellants contend the trial court abused its discretion if it

did not follow the lodestar method but instead used an alternative method.

Standard of Review

The Declaratory Judgments Act provides that in any proceeding under

the Act “the court may award costs and reasonable and necessary attorney’s

fees as are equitable and just.” TEX. CIV. PRAC. & REM. CODE ANN. § 37.009.

Thus, the Act entrusts attorney fee awards to the trial court’s sound discretion,

subject to the requirements that any fees awarded be reasonable and

necessary, which are matters of fact, and to the additional requirements that

fees be equitable and just, which are matters of law. Bocquet v. Herring, 972

Dudley v. Tex. Mun. Power Agency Page 26
S.W.2d 19, 21 (Tex. 1998). It is an abuse of discretion for a trial court to rule

arbitrarily, unreasonably, or without regard to guiding legal principles or to

rule without supporting evidence. Id. In reviewing an attorney fee award

under the Declaratory Judgments Act, the court of appeals must determine

whether the trial court abused its discretion by awarding fees when there was

insufficient evidence that the fees were reasonable and necessary, or when the

award was inequitable or unjust. Id.

While evidentiary-sufficiency issues are not independent grounds for

review under the abuse of discretion standard, evidentiary sufficiency remains

relevant in assessing whether the trial court erred in applying its discretion.

See Westheimer v. Ziemer, 702 S.W.3d 621, 628 (Tex. App.—Houston [1st Dist.]

2024, no pet.). A party who challenges the legal sufficiency of the evidence to

support an issue upon which it did not have the burden of proof at trial must

demonstrate on appeal that there is no evidence to support the adverse finding.

Exxon Corp. v. Emerald Oil & Gas Co., 348 S.W.3d 194, 215 (Tex. 2011). If

there is any evidence of probative force to support the finding, i.e. more than a

scintilla, we will overrule the issue. Haggar Clothing Co. v. Hernandez, 164

S.W.3d 386, 388 (Tex. 2005) (per curiam). If a party is attacking the factual

sufficiency of the evidence to support an adverse finding on an issue on which

the other party had the burden of proof, the attacking party must demonstrate

Dudley v. Tex. Mun. Power Agency Page 27
that there is insufficient evidence to support the adverse finding. Capps v.

Nexion Health at Southwood, Inc., 349 S.W.3d 849, 855 (Tex. App.—Tyler

2011, no pet.). The verdict should be set aside only if it is so contrary to the

overwhelming weight of the evidence as to be clearly wrong and unjust. Cain

v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam).

Applicable Law

Texas courts apply the lodestar method to determine what constitutes

reasonableness and necessity when awarding attorneys’ fees. Rohrmoos

Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 498 (Tex. 2019). The

fact finder’s starting point for calculating an attorneys’ fee award is

determining the reasonable hours worked multiplied by a reasonable hourly

rate, the product of which is the base fee or lodestar. Id. The fee claimant

bears the burden of providing sufficient evidence on both counts. Id. Sufficient

evidence includes evidence of (1) particular services performed, (2) who

performed those services, (3) approximately when the services were performed,

(4) the reasonable amount of time required to perform the services, and (5) the

reasonable hourly rate for each person performing such services. Id. Charges

for duplicative, excessive, or inadequately documented work should be

excluded. Id. at 498-99.

Dudley v. Tex. Mun. Power Agency Page 28
The base lodestar calculation usually includes consideration of at least

the following relevant factors to determine a reasonable time and rate:

the time and labor required, the novelty and
difficulty of the questions involved, the skill
required to perform the legal service properly, the
fee customarily charged in the locality for similar
legal services, the amount involved, the experience,
reputation, and ability of the lawyer or lawyers
performing the services, whether the fee is fixed or
contingent on results obtained, the uncertainty of
collection before the legal services have been
rendered, and results obtained.

Rohrmoos Venture, 578 S.W.3d at 500 (quoting Arthur Andersen & Co. v. Perry

Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997)); see also TEX. DISCIPLINARY

RULES PROF’L CONDUCT R. 1.04. However, courts are not required to receive

evidence on each factor before awarding attorneys’ fees. Halsey v. Halter, 486

S.W.3d 184, 189 (Tex. App.—Dallas 2016, no pet.) (mem. op.).

There is a presumption that the base lodestar calculation, when

supported by sufficient evidence, reflects the reasonable and necessary

attorneys’ fees that can be shifted to the non-prevailing party. Rohrmoos

Venture, 578 S.W.3d at 499. The fact finder may adjust the base lodestar up

or down if relevant factors indicate an adjustment is necessary to reach a

reasonable fee in the case. Id. at 502.

Dudley v. Tex. Mun. Power Agency Page 29
Discussion

A bench trial was held on July 1, 2021, solely on the issue of attorneys’

fees. TMPA’s lead counsel, Frederick Junkin, testified at length about his

credentials and the work he and his team performed on this case. He has over

thirty years of experience as a lawyer and is a partner in a Houston firm. Most

of his work is in eminent domain and land related litigation. He also has

handled commercial disputes, construction disputes, and title insurance

matters. He has handled cases in most areas of the state of Texas including in

and around Brazos County. He has been doing legal work for TMPA since

2004.

Junkin explained that, in 2017, TMPA notified Appellants regarding the

need to clear the Easement area. Appellants responded with the threat of

litigation. Junkin stated that litigation would not have been necessary if

Appellants had voluntarily removed the objects and vegetation and agreed to

TMPA’s proposal to reimburse Appellants for removing the obstructions. After

the trial court granted the temporary injunction, Appellants cleared the

Easement. TMPA proposed a settlement agreement to bring the litigation to

a close. Appellants did not agree to a settlement, and TMPA proceeded to

prepare for trial or summary judgment.

Dudley v. Tex. Mun. Power Agency Page 30
Junkin testified that TMPA accomplished its goals in this litigation, and

the work performed was necessary to assure that it achieved those results. The

billing records reflect that the lawyers and paralegals spent a total of 745 hours

working on the case, up to but not including the hearing on attorneys’ fees.

Junkin explained that they are not seeking attorneys’ fees for some of the fees

billed because those charges do not relate to TMPA’s claim for declaratory

relief. Junkin asserted that fees in the amount of approximately $223,000 are

attributable to the claims for declaratory relief.

Junkin testified that he and the other lawyers who worked on this

matter have the requisite skills to perform the legal services properly.

Regarding the rates customarily charged, Junkin explained that there is a

range of fees that are charged by firms that practice in Brazos County and

surrounding counties that are similar in makeup to Brazos County. He thinks

his fees are within the range of fees charged by firms that practice in Brazos

County, and his certainly would not be the highest fees or the lowest fees

charged by firms that practice in Brazos County. Regarding his fees, Junkin

testified as follows:

[my fees] were certainly consistent with the fees that
the firms I have worked for have charged for other
clients in Brazos County, other work in Brazos and
surrounding counties. As to my fee, it’s less than what
I’m charging for work for other clients in Brazos and
surrounding counties.

Dudley v. Tex. Mun. Power Agency Page 31
He testified that the fees were reasonable and necessary in light of the results

obtained. Contrary to Appellants’ assertion, this evidence is sufficient to show

that TMPA’s requested rates are in line with those prevailing in the

community for similar services by lawyers of reasonably comparable skill,

experience, and reputation. See Blum v. Stenson, 465 U.S. 886, 895 n.11

(1984). A rate determined in this way is normally deemed to be reasonable.

Id.

Junkin testified that the “time was necessary given the nature of the

issues, the arguments that were made in the case, and the analysis that was

necessary in order to resolve both the substantive claims as well as the related

claim for attorney’s fees.” Junkin testified that the hours spent at the

temporary injunction hearing were reasonable and necessary due to the safety

concerns regarding the playground equipment, swing set, and propane tank in

the Easement area. He testified that the time spent addressing Appellants’

special exceptions was reasonable and necessary. Appellants asserted a

number of affirmative defenses and claims, and TMPA had to conduct

discovery with respect to those and prepare for litigation on the merits. Junkin

testified that the hours spent at the hearings on the two motions for summary

judgment were reasonable and necessary. He said all of the time spent

addressing Appellants’ new claims was reasonable and necessary. Junkin

Dudley v. Tex. Mun. Power Agency Page 32
testified that he and his team worked a total of 489.85 hours on the claims for

declaratory relief through the beginning of the trial on attorneys’ fees.

Junkin testified that TMPA submitted a document to the court, a

demonstrative, that sets forth what fees are attributable to the claims for

declaratory relief. Through the last invoice, which is dated May 25, 2021, the

fees charged for work on the declaratory claims totaled $208,443.75. For time

that has not been invoiced, through July 1, 2021, the date of the trial, fees for

trial preparation and appearance at trial for Junkin and one associate, totaled

$15,112.50. Therefore, fees charged for the declaratory claims totaled

$223,556.25. Junkin also testified that TMPA is requesting conditional

appellate fees totaling $72,500.

The record includes invoices sent to TMPA for legal work done by Junkin

and his team dating from March 11, 2019 through May 25, 2021. The invoices

identify the lawyer or paralegal who did the work, the date it was done, a

description of the work performed, and the amount of time billed. Junkin

testified that associate attorney Leah Nommensen was licensed to practice law

in 2016, and Rolf Krueger was licensed in 2012. He stated that Dawn Bebell

has been a paralegal longer than he has been a lawyer and Craig Judge has

been a paralegal for about as long as he has been a lawyer. Junkin charges

Dudley v. Tex. Mun. Power Agency Page 33
$500 per hour for his work, $450 per hour for Nommensen, $325 an hour for

Krueger, $175 or $200 an hour for Bebell, and $175 an hour for Judge.

Appellants contend that Junkin’s testimony regarding rates charged and

number of hours worked is conclusory. We disagree. Junkin described the

history of the case, the pleadings and motions filed, and the hearings that were

conducted, all of which are supported by documentation in the record. Junkin

explained that TMPA made several attempts to resolve the conflict before and

during litigation, but Appellants refused to work with TMPA to avoid or

shorten the litigation. Therefore, all steps taken in court were necessary, and

all hours worked toward the litigation were also necessary. Although rooted

in the attorney’s experience and expertise, an attorney’s testimony about the

reasonableness of his own fees consists of the attorney’s personal knowledge

about the underlying work and its particular value to the client. Garcia v.

Gomez, 319 S.W.3d 638, 641 (Tex. 2010). Additionally, Junkin’s testimony was

supported by invoices identifying the individual who did the work, describing

the work done, and specifying the hours spent on the work. The invoices

provide evidence of $103,525 in fees to Junkin. The record further provides

evidence of $9,750 in fees to Junkin for the time period following the final

invoice through the trial on attorneys’ fees. Therefore, the evidence shows fees

charged for Junkin’s work on the declaratory claims totaled $113,275.

Dudley v. Tex. Mun. Power Agency Page 34
Junkin testified as to his experience and familiarity with rates charged

in and around Brazos County, stating that his fees are within the range of fees

charged by other firms in the area. See Tex. Commerce Bank, Nat’l Ass’n v.

New, 3 S.W.3d 515, 517-18 (Tex. 1999) (testimony not conclusory where

attorney testified he was a duly licensed attorney, familiar with usual and

customary attorneys’ fees in the area, and that based on his knowledge of the

services rendered, the disputed fee was reasonable). Furthermore, the

attorney’s testimony is not objectionable as merely conclusory because the

opposing party, or that party’s attorney, likewise has some knowledge of the

time and effort involved. Garcia, 319 S.W.3d at 641.

Junkin explained his personal knowledge of the facts of the case, and

opinions about the reasonableness of the fees requested, hourly rates, and

number of hours worked. Therefore, his testimony regarding fees charged for

his work, and the reasonableness of the hours he worked, was not conclusory.

See Windrum v. Kareh, 581 S.W.3d 761, 768 (Tex. 2019) (held that a conclusory

statement asserts a conclusion with no basis or explanation).

Appellants contend that TMPA did not present evidence of some of the

lodestar factors and therefore those factors cannot support the reasonableness

of the hourly rates and hours worked. As set out above, TMPA presented

evidence of many of the lodestar factors. A trial court need not receive evidence

Dudley v. Tex. Mun. Power Agency Page 35
on each factor and may look at the entire record, the evidence presented on

reasonableness, the amount in controversy, the common knowledge of the

participants as lawyers and judges, and the relative success of the parties.

Jarvis v. Rocanville Corp., 298 S.W.3d 305, 318 (Tex. App.—Dallas 2009, pet.

denied).

In its thirteenth finding of fact, the trial court indicated that it was

applying the factors for assessing claims for attorneys’ fees outlined in Arthur

Andersen. See Arthur Andersen & Co., 945 S.W.2d at 818. Appellants contend

this may indicate the trial court did not follow the lodestar method. We

disagree. The Arthur Andersen factors are subsumed within the lodestar

method and are therefore properly considered while applying the lodestar

method. See Rohrmoos Venture, 578 S.W.3d at 500.

Junkin provided non-conclusory testimony of his credentials and the

work he did on the declaratory claims, including the rate he charged, hours

worked, and tasks he performed. Further, this testimony is supported by

detailed invoices. We conclude there is legally and factually sufficient evidence

to support the $113,275 in attorneys’ fees awarded to compensate TMPA for

Junkin’s work. See Cain, 709 S.W.2d at 176; Hernandez, 164 S.W.3d at 388.

Thus, the trial court did not abuse its discretion in awarding the portion of the

Dudley v. Tex. Mun. Power Agency Page 36
total award attributable to work done by Junkin. See Bouquet, 972 S.W.2d at

21.

The same cannot be said for the fees awarded for work done by other

individuals named in the invoices. To be entitled to attorneys’ fees, an attorney

must present evidence of his experience, reputation, and ability to perform the

legal services involved. See Rohrmoos Venture, 578 S.W.3d at 500 (explaining

that the base lodestar calculation includes certain factors). The record

contains no evidence of experience, qualifications, or reputation of the

associate attorneys who worked on this case. This evidence is necessary to

show that the fees sought for these individuals were reasonable. See Aleman

v. Standard Cas. Co., No. 01-23-00572-CV, 2025 WL 2445991, at*24 (Tex.

App.—Houston [1st Dist.] August 26, 2025, no pet.) (mem. op.). Accordingly,

the evidence is legally insufficient to support the portion of the attorneys’ fee

award attributable to the two associate attorneys who worked on this case. Id.

at 25.

Furthermore, when a party seeks payment for work completed by

paralegals, courts require information such as the qualifications of the

paralegals to perform substantive legal work, that the paralegal performed

substantive legal work under the direction and supervision of an attorney, the

nature of the legal work performed, the paralegal’s hourly rate, and the

Dudley v. Tex. Mun. Power Agency Page 37
number of hours expended by the paralegal. El Apple I, Ltd. v. Olivas, 370

S.W.3d 757, 763 (Tex. 2012). Here, while the invoices identify the nature of

the work, the hourly rate, and the number of hours worked by paralegals, there

is no evidence in the record of the paralegals’ qualifications or that they worked

under the supervision of an attorney. In the absence of evidence of the

paralegals’ qualifications, it is impossible for the trial court to determine the

reasonableness of the rates charged or hours worked. Westheimer, 702 S.W.3d

at 633-34. Therefore, the portion of the attorneys’ fee awarded to TMPA for

work done by paralegals is legally insufficient. See Exxon Corp., 348 S.W.3d

at 215.

As reflected by the invoices covering March 11, 2019 through May 25,

2021, the total attorneys’ fee award includes $100,547.50 for work done by two

associate attorneys and $4,371.25 for work done by two paralegals during this

time period. Further, TMPA was awarded fees in the amount of $5,362.50 for

work done by an associate attorney between the end of May through trial on

July 1, 2021. Accordingly, the evidence is legally insufficient to support

$110,281.25 of the total attorneys’ fee award, and the trial court abused its

discretion in awarding this amount to TMPA. See Bouquet, 972 S.W.2d at 21;

Exxon Corp., 348 S.W.3d at 215. When the evidence is legally insufficient, the

appropriate disposition is to render judgment. See Holt Atherton Indus., Inc.

Dudley v. Tex. Mun. Power Agency Page 38
v. Heine, 835 S.W.2d 80, 86 (Tex. 1992); All Seasons Windows & Door Mfg., Inc.

v. Red Dot Corp., 181 S.W.3d 490, 505 (Tex. App.—Texarkana 2005, no pet.).

We overrule Appellants’ third and fourth issues to the extent they complain of

attorneys’ fees awarded to TMPA to compensate Junkin in the amount of

$113,275. We sustain Appellants’ issues three and four in part because the

trial court erred in awarding attorneys’ fees in the amount of $110,281.25 for

work done by associate attorneys and paralegals. We overrule Appellants’

issue five because the record does not show the trial court did not follow the

lodestar method.

In their sixth issue, Appellants contend the award of attorneys’ fees is

not equitable or just. They assert the trial court did not consider the entirety

of the circumstances or, if it did, the trial court did not properly weigh such

circumstances. Whether it is equitable and just to award any portion of

reasonable and necessary attorneys’ fees depends, not on direct proof, but on

the concept of fairness, in light of all the circumstances of the case. Ridge Oil

Co. v. Guinn Invs., Inc., 148 S.W.3d 143, 162 (Tex. 2004).

The record shows that Appellants had numerous opportunities to avoid,

or end, litigation yet they chose to prolong and complicate the conflict. In June

2017, TMPA contacted Appellants asking them to remove the structures that

were in the Easement area. TMPA attempted to resolve the matter for

Dudley v. Tex. Mun. Power Agency Page 39
approximately one year before determining that it must proceed with

litigation. In response, Appellants filed special exceptions to TMPA’s petition

and application for temporary and permanent injunctions. They also filed their

answer, containing ten affirmative defenses, and, separately, their

counterclaims for declaratory judgment and injunctive relief.

After the trial court granted the temporary injunction, and Appellants

removed the propane tank, playground equipment, and swing set from the

Easement area, TMPA attempted to resolve the lawsuit through a settlement.

Appellants did not respond. Therefore, TMPA engaged in discovery and filed

its first traditional and no-evidence motions for summary judgment addressing

its pending claims for declaratory and injunctive relief and Appellants’

counterclaims and affirmative defenses. After Appellants amended their

counterclaim to add new claims, TMPA filed its second traditional and no-

evidence motions for summary judgment. More than a year after the second

summary judgment was granted, the issue of attorneys’ fees was tried before

the court. More than two years after the trial, on September 25, 2023, the trial

court signed the final judgment. This was more than six years after TMPA’s

initial contact with Appellants regarding the obstructions in the Easement

area.

Dudley v. Tex. Mun. Power Agency Page 40
The trial court was free to conclude that Appellants’ litigation strategy

contributed to the expenses incurred. See Tex. Health Harris Methodist Hosp.

Fort Worth v. Featherly, No. 02-24-00572-CV, 2025 WL 3723946, at *20 (Tex.

App.—Fort Worth December 23, 2025, no pet.) (mem. op.). Considering the

record and all the circumstances of the case, we cannot conclude that the trial

court abused its discretion by determining that an award of attorneys’ fees to

TMPA was equitable and just. See Ridge Oil Co., 148 S.W.3d at 162. We

overrule Appellants’ sixth issue.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

In their seventh issue, Appellants contend that three of the trial court’s

findings of fact are merely evidentiary and cannot form the basis for TMPA’s

attorneys’ fee award. One of the findings finds TMPA’s evidence to be credible

and reliable while the other two find that Appellants’ evidence was not credible

or persuasive.

In a bench trial, the trial court is the sole judge of the credibility of

witnesses. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex.

2003). The trial court’s findings of fact are not conclusive when the appellate

record contains a complete reporter’s record, and an appellant may challenge

those findings for evidentiary sufficiency. Miranda v. Byles, 390 S.W.3d 543,

553 (Tex. App.—Houston [1st Dist.] 2012, pet. denied) (op. on reh’g).

Dudley v. Tex. Mun. Power Agency Page 41
Appellants attacked the sufficiency of the evidence to support the award of

attorneys’ fees in their third and fourth issues. Their issue seven presents

nothing for review, and we overrule it.

In their eighth issue, Appellants contend the trial court erred in refusing

to make requested additional findings of fact and conclusions of law relating to

the lodestar calculation and equitable arguments for adjustment. They assert

they requested additional findings and conclusions to address the lack of

specificity as to how attorneys’ fees were calculated.

A party may request additional findings of fact and conclusions of law if

the party believes that the court’s findings and conclusions are deficient in

some way. Zhang v. Capital Plastic & Bags, Inc., 587 S.W.3d 82, 88 (Tex.

App.—Houston [14th Dist.] 2019, pet. denied). The trial court has no duty to

make additional findings that are unnecessary or contrary to its judgment; a

trial court is only required to make additional findings and conclusions that

are appropriate. Id. Failure to make additional findings and conclusions may

constitute reversible error if the appellant is prevented from adequately

presenting the matter being complained of on appeal. Id. at 88-89.

Appellants admit they were able to present their arguments on appeal

on the attorneys’ fee issue even in the absence of the requested additional

findings. We conclude the record sufficiently shows the basis of the trial court’s

Dudley v. Tex. Mun. Power Agency Page 42
award of attorneys’ fees even in the absence of the requested additional

findings of fact and conclusions of law. Accordingly, we overrule Appellants’

eighth issue.

TEXAS RULE OF CIVIL PROCEDURE 47

In their ninth issue, Appellants contend the attorneys’ fee award in the

final judgment is void because it does not conform to TMPA’s pleadings.

Specifically, they assert that TMPA’s petition stated that TMPA sought

“monetary relief of $100,000 or less and non-monetary relief.” Because the fee

award is greater than $100,000, the argument continues, the judgment does

not conform to the pleadings and must be reversed.

In the section of its petition entitled “Jurisdiction and Venue,” TMPA

states that it “seeks monetary relief of $100,000 or less and non-monetary

relief. This Court has jurisdiction of the matters in controversy because the

damages and relief sought are within the jurisdictional limits of the Court.” In

other sections of the petition, TMPA requested an award of reasonable and

necessary attorneys’ fees pursuant to the Texas Declaratory Judgments Act.

Rule of Civil Procedure 47 provides that an original pleading which sets

forth a claim for relief shall contain, in addition to other requirements not at

issue here, and with one exception not applicable here, a statement that the

party seeks one of five categories of relief. See TEX. R. CIV. P. 47(c) (amended

Dudley v. Tex. Mun. Power Agency Page 43
2020).2 This statement of relief ensures that parties will plead into or out of

the expedited actions process in Texas Rule of Civil Procedure 169. See TEX.

R. CIV. P. 169 (amended 2020); 47 cmt. (2013). Pursuant to the 2013 version

of Rule 47(c)(1), if the party seeks only monetary relief of $100,000 or less,

including damages of any kind, penalties, costs, expenses, pre-judgment

interest, and attorney fees, that suit is governed by the expedited actions

process in Rule 169 and the discovery limitations in Rule 190.2. See id. R.

169(a), (d)(1); 190.2(a)(1); 47 cmt. (2013). The specific statements of relief

under Rule 47(c)(2) to (5), including the statement in TMPA’s petition, provide

information on the nature of the case and do not affect a party’s substantive

rights. See id. R. 47 cmt. (2013).

We conclude that the statement that TMPA seeks monetary relief of

$100,000 or less does not include its request for attorneys’ fees. TMPA pled for

attorneys’ fees pursuant to the Declaratory Judgments Act. See TEX. CIV.

PRAC. & REM. CODE ANN. § 37.009. Accordingly, the trial court’s judgment

conformed to the pleading. We overrule Appellants’ ninth issue.

CONCLUSION

The trial court did not err in granting the declaratory judgment and

permanent injunctions in favor of TMPA. Because the trial court abused its

2 Because this case was filed before January 1, 2021, the 2013 version of Rule 47 applies here. Our
discussion refers to the 2013 version.

Dudley v. Tex. Mun. Power Agency Page 44
discretion with regard to a portion of the attorneys’ fees awarded to TMPA, we

modify the trial court’s judgment to vacate the $110,281.25 award of attorneys’

fees for the associate attorneys and paralegals. We affirm the remainder of the

judgment as modified.3

STEVE SMITH
Justice

OPINION DELIVERED and FILED: May 28, 2026
Before Chief Justice Johnson,
Justice Smith, and
Justice Harris
Modified in part, affirmed as modified
CV06

3 We need not reach Appellants’ tenth issue. See TEX. R. APP. P. 47.1.

Dudley v. Tex. Mun. Power Agency Page 45