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  • Affirmed and Memorandum Opinion filed September 28, 2004

    Affirmed and Memorandum Opinion filed September 28, 2004.

     

    In The

     

    Fourteenth Court of Appeals

    ____________

     

    NO. 14-03-00423-CV

    ____________

     

    RICHARD HENSLEY and JOHN FREEMAN, Appellants

     

    V.

     

    VILLAGE OF TIKI ISLAND, ROBERT SCHEFFLER, SUSAN SCHEFFLER, TIKI ISLAND CIVIC ASSOCIATION, FRANK TROMBATORE, JERRY DRYDEN, SHERI COLEMAN, CHARLES PETERS, LESTER MARTIN, and GWEN SHULTEA, Appellees

     

      

     

    On Appeal from the 56th District Court

    Galveston County, Texas

    Trial Court Cause No.  02CV1126

     

      

     

    M E M O R A N D U M   O P I N I O N

    Appellants, Richard Hensley and John Freeman (collectively, Hensley), appeal the trial court=s granting of summary judgment in favor of appellees, Village of Tiki Island (the Village), Robert and Susan Scheffler (the Schefflers), Tiki Island Civic Association (the Association), and Frank Trombatore, Jerry Dryden, Sheri Coleman, Charles Peters, Lester Martin, and Gwen Schultea (collectively, the Directors).  We affirm.

                                             I.  Factual Background

    Hensley and the Schefflers are residents of Section I of the Village of Tiki Island, a Class B General Law Municipality.  In May 2002, the Schefflers installed a 110 gallon propane tank on their property to heat a swimming pool.  On June 24, 2002, the Schefflers applied to the Village for a permit to install the propane tank.  On September 19, 2002, the Association granted the Schefflers a variance with regard to the installation of the propane tank on their property. On September 25, 2002, the Village approved the Schefflers= application and granted a permit to install the propane tank.

    On September 26, 2002, Hensley sued appellees over the installation of the propane tank on the Schefflers= property.  Hensley alleged the propane tank was installed in violation of Section I deed restrictions and Village Ordinance 6-85-1. 

    Article III, Section 17 of the AModification of Covenants, Reservations and Restrictions of Section I, Tiki Island Subdivision@ prohibits the use of propane tanks, except under specific circumstances:

    The use of liquid petroleum products, (propane, butane, etc.) is prohibited, except for those which (1) are not in a permanently-installed container, (2) are used outside the building for cooking, fogging, or similar uses, and (3) are used inside the building to protect against freezing weather.

    Village Ordinance 6-85-1 (passed and approved on June 6, 1985) prohibited the installation of liquid petroleum gas tanks over ten gallons in size.[1]  Ordinance 6-85-1 was amended on February 11, 1986 (Ordinance 2-86-1), to provide for the installation of liquid petroleum gas tanks larger than 10 gallons that satisfied certain specified conditions for such installation.  Ordinance 2-86-1 was codified without changes and is currently found at Article 7.600 of the Tiki Island Code of Ordinances.  Article 7.601 allows for the installation of liquefied petroleum gas storage tanks on Village property if they are

    . . . anchored to a reinforced concrete foundation that is one and one-half (1-1/2) times the weight of the container full of water. Anchors shall be equally spaced and adequately bolted to the tank and embedded 8 inches into the concrete foundation to resist a pull-out load of one and one-half (1-1/2) times the weight of the container full of water. 

    Further conditions for the installation of propane tanks include the use of a shut-off device; compliance with Texas Railroad Commission rules, laws, and regulations; compliance with the Village Building Code; and that it not be unsightly.  Article 7.605 requires for a permit for the installation of a propane tank:

    It shall be unlawful for any person, persons, firm, association, or corporation to place any liquefied petroleum gas storage container on any lot or plot within the corporate limits of the Village of Tiki Island, Texas, until a permit has been issued.  A permit shall be issued by the Building Inspector conditioned upon compliance with the terms of this article. . . .

    Article VI, Section 5 of the deed restrictions expressly directs in the event of a conflict between the deed restrictions and the Village ordinances, the Village ordinances control:

    In the event an ordinance, regulation, or charter provision of the Village of Tiki Island or of any governmental entity succeeding thereto shall conflict with any of the provisions contained herein, such ordinance, regulation, or charter provision shall take precedence and be controlling over the provisions contained herein. 

    Hensley complains that the Schefflers did not obtain a permit prior to installing the propane tank and that the tank was installed in violation of deed restrictions and Village ordinances.  Hensley sought a temporary injunction, requesting that the trial court order appellees to comply with applicable law and to remove the propane tank from the Schefflers= property. 

    Hensley also requested a permanent injunction specifically requesting that the trial court order:

    $        the Association to withdraw any and all acts in violation of the deed restrictions with regard to the Schefflers= propane tank;

    $        the Village to withdraw any and all acts in violation of ordinances 6-85-1 and 2-86-1 regarding the Schefflers= propane tank;

    $        the Association to withdraw, nullify, and void the variance issued to the Schefflers on September 19, 2002;

    $        the Schefflers to remove the 110 gallon propane tank from their property; and

    $        the Directors not to issue variances permitting propane tanks in violation of the deed restrictions.

    Hensley also sought a declaratory judgment that:

    $        the Directors failed to perform their duty to uphold deed restriction 17, which prohibited the use of propane tanks;

    $        Village officials failed to perform their duties by not enforcing ordinance 6-85-1, as amended by ordinance 2-86-1, and by not requiring the Schefflers to remove the illegal propane tank from their property;

    $        the acts of the Directors, with prior knowledge of the open violation of the deed restrictions, in granting a variance were arbitrary, capricious, illegal, and an intentional violation of the Association=s amended by-laws and, therefore, are null and void; and


    $        the acts of the Directors were deliberate, dishonest, and wrongful, and the resulting variance is null and void.

    Seeking damages from the Directors personally, Hensley alleges the issuance of variances without just and legal cause attacks the integrity of the deed restrictions and reduces the protection afforded by the deed restrictions, thus, lowering the value of the property and placing people at risk.  Hensley also asserts a claim for breach of contract against the Directors.  Hensley alleges that because he has paid dues to the Association in the form of yearly maintenance fees with the legal and reasonable expectation that the Association would protect and uphold deed restrictions, the Directors breached their contractual agreement him by granting a variance in violation of section 17 of the deed restrictions.  Hensley contends that by granting a variance in violation of section 17 of the deed, the Directors jeopardized the safety and welfare of the property owners and caused a decrease in property values. 

    Hensley also seeks $10,000 in exemplary damages from each Director on the basis that the granting of the variance in violation of section 17 of the deed restrictions was (1) willful, arbitrary, capricious, and in callous disregard of their duty to uphold the deed restrictions; and (2) an abuse of the regulatory powers afforded by Association by-laws and deed restrictions. 

    Seeking damages from the Schefflers, Hensley alleges that by their deliberate and wanton disregard of deed restrictions and Village ordinances, the Schefflers have brought about damages to other property holders in Section I and have created a dangerous instrument in the community because the propane tank will float in a flood or storm event, potentially causing injury to property and people.  Hensley also seeks $10,000 in exemplary damages from the Schefflers because installing the propane tank in violation of deed restrictions and Village ordinances was willful.

    All defendants moved for summary judgment.[2]  The trial court granted the Association and Directors=, the Schefflers=, and the Village=s respective motions for summary judgment.[3]  In addition, the trial court awarded the Schefflers attorney fees in the amount of $6400, and the Village attorney fees in the amount of $5,000.  The trial court granted Hensley=s motion to take judicial notice of Village ordinances, Section I deed restrictions, and Association by-laws. 

                          II.  Summary Judgment Standard of Review

    To prevail on a motion for summary judgment, a defendant must establish that no material fact issue exists and that it is entitled to judgment as a matter of law.  Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222 (Tex. 1999).  Once the defendant establishes that no genuine issue of material fact exists regarding an element of the plaintiff=s claim, the plaintiffs must present competent summary judgment evidence raising a fact issue on that element.  Guest v. Cochrane, 993 S.W.2d 397, 401 (Tex. App.CHouston [14th Dist.] 1999, no pet.).  In conducting our review of the summary judgment, we take as true all evidence favorable to the nonmovants, and make all reasonable inferences in the nonmovant=s favor.  KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999).  A defendant, as movant, is entitled to summary judgment if it either disproves at least one essential element of each of the plaintiff=s causes of action or establishes all the elements of an affirmative defense.  American Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997).


    On review of a no-evidence summary judgment, we consider the evidence in the light most favorable to the nonmovants and disregard all evidence and inferences to the contrary.  Blan v. Ali, 7 S.W.3d 741, 747 (Tex. App.CHouston [14th Dist.] 1999, no pet.).  A no-evidence summary judgment is properly granted if the respondent fails to bring forth more than a scintilla of probative evidence to raise a genuine issue of material fact as to an essential element of the respondent=s case.  Tex. R. Civ. P. 166a(i); Specialty Retailers, Inc. v. Fuqua, 29 S.W.3d 140, 146 (Tex. App.CHouston [14th Dist.] 2000, pet. denied).  More than a scintilla of evidence exists when the evidence rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.  Isbell v. Ryan, 983 S.W.2d 335, 338 (Tex. App.CHouston [14th Dist.] 1998, no pet.).  Although the nonmoving party is not required to marshal its proof, it must present evidence that raises a genuine fact issue on the challenged elements.  Baty v. ProTech Ins. Co., 63 S.W.3d 841, 847 (Tex. App.CHouston [14th Dist.] 2001, pet. denied). 

                       III.  Declaratory Judgment Standard of Review

    The purpose of the Uniform Declaratory Judgment Act is to settle and afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations.  Tex. Civ. Prac. & Rem. Code Ann. ' 37.002 (Vernon 1997).  The declaratory judgment act does not confer jurisdiction on the trial court, but rather, makes available the remedy of a declaratory judgment for a cause of action already within the court=s jurisdiction.  State v. Morales, 869 S.W.2d 941, 947 (Tex. 1994).  A declaratory judgment is appropriate only if a justiciable controversy exists as to the rights and status of the parties and the controversy will be resolved by the declaration sought.  Bonham State Bank v. Beadle, 907 S.W.2d 465, 467 (Tex. 1995).  Texas courts do not have the authority to render judgments that merely constitute advisory opinions.  Patterson v. Planned Parenthood of Houston & S.E. Tex., Inc., 971 S.W.2d 439, 443 (Tex. 1998).  An opinion is advisory when the judgment sought would not constitute specific relief to a litigant or affect legal relations.  Brinkley v. Texas Lottery Comm=n, 986 S.W.2d 764, 767 (Tex. App.CAustin 1999, no pet.).


                                                    IV.  The Village

                                                        A.  Standing

    The Village moved for summary judgment on the grounds that  (1) its building inspector had no authority to deny the Schefflers= application for a permit for a propane tank because deed restrictions are not within the province of its police power; (2) it has no authority to remove the propane tank because only a fine may be imposed for a violation of article 7.600; (3) there is no evidence that it violated its own ordinances; and (4) the trial court has no authority to order it to withdraw its lawful exercise of police power under the separation of powers doctrine. 

    The Village also sought declaratory judgment that (1) article 7.600 does not authorize it to remove the Schefflers= propane tank; (2) it has the power and authority pursuant to article 7.600 to grant the Schefflers a permit to install a propane tank on their property; and (3) its officials performed their duties by enforcing applicable ordinances. 

    On appeal, the Village argues Hensley lacks standing because he has not alleged and cannot show that he suffered an injury unique to him rather than an injury suffered by all Section I residents.  We agree. Although the Village did not present this as a ground in its motion for summary judgment, standing, as an element of subject matter jurisdiction, cannot be waived but may be raised for the first time on appeal.  Texas Ass=n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 445B46 (Tex. 1993). 


    The doctrine of standing identifies suits appropriate for judicial determination.  Brown v. Todd, 53 S.W.3d 297, 305 (Tex. 2001). AThe general test for standing in Texas requires that there >(a) shall be a real controversy between the parties, which (b) will be actually determined by the judicial declaration sought.=@  Texas Ass=n of Bus., 852 S.W.2d at 445B46 (quoting Board of Water Eng=rs. v. City of San Antonio, 155 Tex. 111, 114, 283 S.W.2d 722, 724 (1955)).  Unless standing is conferred by statute, a plaintiff must demonstrate that he Apossesses an interest in a conflict distinct from that of the general public, such that the defendant=s actions have caused the plaintiff some particular injury.@  Williams v. Lara, 52 S.W.3d 171, 178B79 (Tex. 2001).  It is the plaintiff=s burden to allege facts affirmatively demonstrating the trial court=s jurisdiction to hear his case.  Texas Ass=n of Bus., 852 S.W.2d at 445B46.  Standing is a question of law subject to de novo review.  Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998).

    With respect to the Village, Hensley has not alleged any injury to himself. Hensley merely states in his petition that a Atemporary injunction will preserve the status quo and protect the property rights of the citizens of Section I, Tiki Island until trial on the merits.@[4]  With respect to the other appellees, Hensley has not alleged any injury peculiar to himself, but has specifically alleged injury to all Section I property owners: the various actions of the appellees have resulted in the Alowering the value of the property in Section I and placing people in Section I at risk,@ and Ahave brought about damage to other property holders in Section I.@[5] 

    Thus, we conclude that in the absence of an allegation of any injury particular to Hensley, he has no standing to maintain his action to enjoin the Village or his declaratory judgment action against the Village, and overrule this issue.

                                                   B.  Attorney Fees

    Hensley complains the Village attached no evidence to its motion for summary judgment in support of its claim for attorney fees on its declaratory judgment action.  To the contrary, the Village filed simultaneously with its motion for summary judgment, the affidavit of its attorney, Ellis J. Ortego, in support of its request for attorney fees.  Hensley further asserts in post-submission briefing that Ortego=s affidavit is defective because it does not contain the phrase Atrue and correct.@  Hensley, however, did not raise this issue in his original brief.  An appellant cannot raise new issues in his reply brief, but may only address those matters raised in the appellee=s brief. Tex. R. App. P. 38.3; Barrios v. State, 27 S.W.3d 313, 322 (Tex. App.CHouston [1st Dist.] 2000, pet. ref=d). Thus, Hensley has waived this issued by waiting to raise it in his post-submission briefing rather than in his original brief.  Zamarron v. Shinko Wire Co., Ltd., 125 S.W.3d 132, 139 (Tex. App.CHouston [14th Dist.] 2003, pet. denied); Barnes v. SWS Fin. Servs., Inc., 97 S.W.3d 759, 761 n.3 (Tex. App.CDallas 2003, no pet.).

    The Declaratory Judgment Act authorizes an award of reasonable and necessary attorney fees when just and equitable.  Tex. Civ. Prac. & Rem. Code Ann. ' 37.009 (Vernon 1997); John G. & Marie Stella Kenedy Memorial Found. v. Dewhurst, 90 S.W.3d 268, 289 (Tex. 2002).  Such an award falls within the discretion of the trial court, subject to the requirement that the fees be reasonable and necessary, which are questions of fact, and equitable and just, which are questions of law.  Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998). 


    In his affidavit, Ortego states he graduated from law school in 1967, and is admitted to practice in Texas; his office is located in Santa Fe, Texas; he has practiced civil and criminal law for over 35 years; as part of his practice, he represents municipalities in Galveston County, Texas; he is familiar with the usual, customary, and reasonable attorney fees charged in Galveston County for cases of this type; he has performed at least 30 hours of work; and, in his opinion, $5,000 is a reasonable fee for services rendered to date in this case.  We find the evidence is sufficient to support the award of attorney fees to the Village;[6] therefore, the trial court did not abuse its discretion in awarding attorney fees.  This issue is overruled. 

                                                  V.  The Schefflers

                                                        A.  Standing

    The Schefflers moved for summary judgment on the grounds that (1) article 7.600 controls over any contrary language in the deed restrictions and permitted the installation of the subject propane tank; (2) pursuant to article 7.600, the Village had the authority to grant the Schefflers a permit to install the propane tank on their property; (3) the propane tank was installed in full compliance with article 7.600; (4) Hensley lacks standing because the Schefflers obtained a permit from the Village and properly installed the propane tank; and (5) the Schefflers are not liable in the capacity in which they were sued because they obtained a permit from the Village and properly installed the propane tank. 

    The Schefflers also sought a declaratory judgment that (1) article 7.600 controls over any contrary language contained in the deed restrictions; and (2) the Village had the authority pursuant to article 7.600 to grant the Schefflers a permit allowing them to install the propane tank on their property. 

    The Schefflers assert Hensley has no standing to sue them for the installation of the propane tank.  AA private individual cannot maintain a suit to enjoin the alleged violation of a penal ordinance, unless the activity complained of results in damages to such person, peculiar to him, and not common to the public in general.@  See Bolton v. Sparks, 362 S.W.2d 946, 951 (Tex. 1962); Lozano v. Patrician Movement, 483 S.W.2d 369, 371 (Tex. Civ. App.CSan Antonio 1972, writ ref=d n.r.e.). 


    Article 7.605 makes it unlawful for a person to place any liquified petroleum gas storage container on any lot within the Village=s corporate limits until a permit has been issued.  Article 1.106 provides that when an act is declared to be unlawful, and no specific penalty is provided therefor, except for certain specific named violations, a violation shall be punished by a fine not to exceed $500. Therefore, article 7.605 is penal in nature. 

    In his petition, Hensley alleged the Schefflers

    have brought about damages to the other property holders in Section I and have created a dangerous instrument in the community that could cause severe property damage and injury. The subject propane tank will float in a flood or storm event and create a severe threat to Section I property and people.[7] 

    Because Hensley did not alleged any injury that only he sustained, but, instead, asserted that all Section I property owners have been injured by the Schefflers= action in installing a propane tank without a permit in violation of article 7.605, he cannot maintain his suit to enjoin the Schefflers= purported violation of article 7.600.  See Bolton, 362 S.W.2d at 951.  This issue is overruled. 

                                 B.  Interpretation of Deed Restrictions

    Hensley sought not only to have the Schefflers remove the propane tank from their property, but he also sought actual damages on an unspecified cause of action and exemplary damages in the amount of $10,000 for their violation of the deed restrictions and Village ordinances.  The Schefflers contend that the deed restrictions and the Village ordinance are in conflict; in that situation, the Village ordinance controls.


    Restrictive covenants are subject to the general rules of contract construction.  Pilarick v. Emmons, 966 S.W.2d 474, 478 (Tex. 1998). In construing a restrictive covenant, the court must attempt to determine the intent of the framers of the covenant.  American Golf Corp. v. Colburn, 65 S.W.3d 277, 279 (Tex. App.CHouston [14th Dist.] 2001, pet. denied); Highlands Mgmt. Co. v. First Interstate Bank of Tex., N.A., 956 S.W.2d 749, 753 (Tex. App.CHouston [14th Dist.] 1997, writ denied).  We liberally construe a restrictive covenant to give effect to its purpose and intent.  Tex. Prop. Code Ann. ' 202.003(a) (Vernon 1995).  Whether a restrictive covenant is ambiguous is a question of law.  Pilarick, 966 S.W.2d at 478. 

    Article VI, section 5 of the deed restrictions clearly provides that in the event of a conflict between any Village ordinance and any deed restriction, the Village ordinance Ashall take precedence and be controlling over the provisions contained herein.@  The parties do not contend that the article VI, section 5 of the deed restrictions is ambiguous and our review similarly reveals no ambiguity. 

    Hensley argues there is no fatal conflict between the deed restrictions and the ordinances and suggests the deed restrictions and ordinances can be harmonized. We disagree.  Article III, section 17 of the deed restrictions specifically prohibits the use of propane tanks Aexcept for those which (1) are not in a permanently-installed container, (2) are used outside the building for cooking, fogging, or similar uses, and (3) used inside the building to protect against freezing weather.@  Article 7.601 of the Village ordinances, on the other hand, places no limitations on the use of propane tanks, but requires that such tanks be (1) anchored to a reinforced foundation, (2) equipped with a shut-off device, (3) in compliance with Texas Railroad Commission rules and regulations, and (4) installed so as not to be Aunsightly.@  Because the deed restriction limits propane tanks to particulars uses, while the ordinance does not, we conclude the deed restriction and the ordinance are in conflict and cannot be harmonized.  Thus, Village ordinance 7.601 is controlling over the deed restriction found at article III, section 17. 


    Article 7.600 of the Village code allows the use of propane tanks.  The Village granted the Schefflers a permit.  After the Village granted the Schefflers a permit, they were no longer in violation of Village ordinances.  Therefore, we conclude Hensley cannot recover any alleged damages from the Schefflers due to the installation of the propane tank on their property.  This issue is overruled. 

                                                   C.  Attorney Fees

    Hensley finally complains that the trial court abused its discretion in awarding the Schefflers attorney fees on their declaratory judgment action.  Hensley argues such award was Ainequitable and unjust@ because (1) as an interested Village homeowner, he sought construction and enforcement of ordinances and deed restrictions apparently never subjected before to judicial review, and (2) the Schefflers were not entitled to summary judgment. 

    The construction of the deed restrictions and the Village ordinances was appropriate for a declaratory judgment action.  City of Austin v. Pendergrass, 18 S.W.3d 261, 264 (Tex. App.CAustin 2000, no pet.).  Although section 37.009 of the Texas Civil Practice & Remedies Code does not require that a party be the prevailing party in order to be awarded attorney fees, the trial court construed the subject deed restrictions and Village ordinances favorably to the Schefflers.  See Barshop v. Medina County Underground Water Conservation Dist., 925 S.W.2d 618, 637 (Tex. 1996) (explaining award of attorney fees in declaratory judgment actions is clearly within trial court=s discretion and is not dependent on finding that party Asubstantially prevailed@). It is within the discretion of the trial court to award attorney fees under section 37.009.  Bocquet, 972 S.W.2d at 21.  We conclude the award of attorney fees to the Schefflers is both equitable and just.  Accordingly, the trial court did not abuse its discretion, and we overrule this issue.

                               VI.  The Association and the Directors

    In addition to seeking to enjoin the Association and directors= actions, Hensley also brought claims against the Directors for breach of fiduciary duty and breach of contract.  The Association and the Directors moved for a traditional summary judgment[8] on the grounds that (1) Village ordinances control in the event of a conflict with the deed restrictions, and (2) the Schefflers= tank was installed in compliance with article 7.600.[9] 

    As addressed above, Village ordinance 7.601 is controlling over the deed restriction found at article III, section 17.  Because the Village granted the Schefflers a permit, we conclude the Association and the Directors did not breach any fiduciary duties or any contract by their approval of the Schefflers propane tank.  This issue is overruled.[10]

    Accordingly, the judgment of the trial court is affirmed.

     

     

    /s/      J. Harvey Hudson

    Justice

     

    Judgment rendered and Memorandum Opinion filed September 28, 2004.

    Panel consists of Justices Yates, Anderson, and Hudson.


    [1]  Ordinance 6-85-1 provided with regard to possessing or storing propane tanks:

    WHEREAS, the Village of Tiki Island, Texas is an island subject to severe flooding and tidal surge during storms and hurricanes; and

    WHEREAS, during Hurricane Alicia in August, 1983, Liquid Petroleum Gas containers proved to be very buoyant and served as battering devices causing structural damage to homes located within the Village of Tiki Island, Texas; and

    WHEREAS, such containers also pose a fire and safety hazard following the occurrence of a storm or hurricane and should be regulated; . . .

                                                                        *        * *

    That it shall be unlawful for any person, persons, firm, association, or corporation to store, possess, or locate on any property or premises located within the Village of Tiki Island, Texas, any container designed for the storage of Liquid Petroleum Gas, commonly known as butane or propane.  This Ordinance shall not apply to containers of ten gallons or less in size. 

    [2]  The Association and Directors and the Schefflers moved for traditional summary judgments, while the Village moved for a no-evidence summary judgment.

    [3]  Hensley filed a first amended original petition.  The Schefflers moved to strike the amended petition (which added a cause of action for breach of contract)  on the grounds that (1) it was filed less than seven days before the date set for the hearing on the motions for summary judgment without first obtaining leave of the trial court, (2) the petition operated as a surprise, and (3) they would be prejudiced by the filing of the petition. The trial court granted the Schefflers= motion and ordered Hensley=s first amended original petition stricken. 

    [4]  Emphasis added.

    [5]  Emphasis added.

    [6]  Factors that a fact finder should consider when determining the reasonableness of a fee include: (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill required to perform the legal service properly; (2) the likelihood that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent on results obtained or uncertainty of collection before the legal services have been rendered.  Arthur Andersen & Co. v. Perry Equipment Corp., 945 S.W.2d 812, 818 (Tex. 1997) (quoting Tex. Disciplinary R. Prof=l Conduct 1.04, reprinted in Tex. Gov=t Code Ann., tit. 2, subtit. G app. A (Tex. State Bar R., art. X, ' 9)).  These factors are not elements of proof, but are guidelines to be considered in the determination of the reasonableness of a fee.  Academy Corp. v. Interior Buildout & Turnkey Constr., Inc., 21 S.W.3d 732, 742 (Tex. App.CHouston [14th Dist.] 2000, no pet.). 

    [7]  Emphasis added.

    [8]  The Association and the Directors claim on appeal that they brought a no-evidence motion for summary judgment.  However, a review of the amended motion for summary judgment does not indicate that it is a no-evidence summary judgment, but, instead, it appears to be a traditional summary judgment. 

    [9]  On appeal, the Association and the Directors assert several additional grounds for affirming the summary judgment, some of which they specifically assert were presented in their motion.  A review of the record, however, reveals that the Association and the Directors failed to raise those additional grounds in their motion for summary judgment.  Although we have disposed of Hensley=s appeal against the Association and the Directors on the ground that the deed restrictions defer to the ordinances, we note that those additional grounds not raised in their motion for summary judgment cannot be considered on appeal as grounds for affirming their summary judgment.  Tex. R. Civ. P. 166a(c); Stiles v. Resolution Trust Corp., 867 S.W.2d 24, 26 (Tex. 1993). 

    [10]  On appeal, the Association and the Directors bring a cross-point, in which they argue that they do not have an affirmative duty to enforce the deed restrictions.  Appellants assert that under Rule 25.1(c) of the Texas Rules of Appellate of Procedure, they may present additional independent grounds on which to affirm the trial court=s judgment even though they did not file a notice of appeal.  See Tex. R. App. 25.1(c).  However, the Association and the Directors did not raise this as an additional and independent ground in its motion for summary judgment.  It is appropriate to consider an additional ground for affirmance only where such ground was presented to the trial court, but the court did not rule on it in the interest of judicial economy.  Ash v. Hack Branch Distrib. Co., 54 S.W.3d 401, 409 n.2 (Tex. App.CWaco 2001, pet. denied); Bosque Asset Corp. v. Greenberg, 19 S.W.3d 514, 520 (Tex. App.CEastland 2000, pet. denied), overruled, in part, on other grounds by Hight v. Dublin Veterinary Clinic, 22 S.W.3d 614 (Tex. App.CEastland 2000, pet. denied).