Avalon Sections, 4.6 and 7 Homeowners Association v. Dilip Chaudhuri ( 2014 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
April 23, 2014 Session
AVALON SECTIONS 4, 6 AND 7 HOMEOWNERS ASSOCIATION v.
DILIP CHAUDHURI, ET AL.
Appeal from the Chancery Court for Williamson County
No. 41820 Robbie T. Beal, Chancellor
No. M2013-02346-COA-R3-CV - Filed June 26, 2014
Homeowners association brought declaratory judgment action against homeowners to
enforce the development’s restrictive covenants. The trial court determined that the
homeowners association’s architectural review committee (“ARC”) acted within its
discretion in ordering homeowners to remove improvements the ARC found to be
inconsistent with other homes in the neighborhood. We affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
A NDY D. B ENNETT, J., delivered the opinion of the court, in which F RANK G. C LEMENT, J R.,
J., and J. M ARK R OGERS, S P. J., joined.
Joseph H. Johnston, Acklen Station, Tennessee, for the appellants, Dilip Chaudhuri, et al.
Craig H. Brent, Franklin, Tennessee, for the appellee, Avalon Sections 4, 6, and 7
Homeowners Association.
OPINION
F ACTUAL AND P ROCEDURAL B ACKGROUND
Dilip and Kanika Chaudhuri (“Homeowners”) bought a house on lot 429 in Avalon
P.U.D. Subdivision, Section 7. It is undisputed that this subdivision is subject to the recorded
Amended and Restated Declaration of Protective Covenants, Conditions, and Restrictions
(“the Declaration”) referenced in the deed to Homeowners’ property. (The contents of the
Declaration will be outlined below as relevant to the issues on appeal.) Homeowners took
possession of their new home on October 31, 2007. At some time shortly before or after this
date,1 Homeowners hired someone to install in the front yard a flowerbed surrounded by
scalloped border blocks. Homeowners did not seek approval of this landscaping prior to
installing the flower bed, as required by the Declaration.
Pursuant to the Declaration, the Architectural Review Committee (“ARC”) is
responsible for reviewing and approving or disapproving proposed improvements to
subdivision property. On August 10, 2010, the property manager notified Homeowners that
they would need ARC approval for an irrigation system in their front yard; the property
manager also informed them that they needed to submit an application for the landscaping
installed in their front yard. Homeowners submitted an application for the irrigation system
and an application for an ornamental tree and flowerbed with scalloped edgers. In a letter
dated September 8, 2010, the property manager notified Homeowners that their irrigation
system and ornamental tree had been approved, but the planter/flowerbed had been denied
approval because it did not comply with the subdivision’s Standards of Appearance Policy.
Homeowners refused to remove the flowerbed and claimed that the border blocks
were needed to prevent erosion. The ARC found no erosion problems. In a letter dated
November 22, 2010, the property manager notified Homeowners that the planter and
landscape bed had to be removed by December 15, 2010 because they did not “meet the
criteria for the uniformity of appearance for the front of homes in Avalon.” Homeowners
continued to refuse to remove the landscaping in their front yard.
On February 7, 2013, Avalon, Section 4, 6, and 7 Homeowners Association, Inc.
(“Avalon”), filed a petition for declaratory judgment and injunctive relief against
Homeowners. They alleged that Homeowners had erected and maintained “landscaping
border blocks without the approval of [the] Architectural Review Committee and in violation
of [the Declaration].” Avalon requested that Homeowners be required to remove their
landscaping border blocks and pay damages to Avalon, including attorney fees and costs.
Avalon also requested a show cause order requiring Homeowners to appear and show why
the court should not issue in injunction. In their answer, Homeowners denied that the border
blocks were not in compliance with the Declaration. They also asserted defenses, including
allegations that Avalon’s selective enforcement of the Declaration violated their rights under
several federal civil rights statutes and the due process clause.
On April 4, 2013, the trial court denied Avalon’s request for a temporary injunction
against Homeowners.
1
The precise date is a disputed issue, as discussed below.
2
The hearing
The case was heard on August 27, 2013. Avalon’s property manager, Damon Morris,
testified that, in response to Homeowners’ application for approval of the seasonal flower
bed with scalloped edger, “the ARC approved the landscape bed, but they denied the
scallop[ed] edger.” Mr. Morris acknowledged that the ARC’s letter of September 8, 2010
referenced the Standards of Appearance Policy, which mentions landscape beds. He was
asked about a letter from Homeowners dated May 16, 2011 in which Homeowners asserted
that the ARC’s actions were “arbitrary and capricious at best, malicious, racially motivated
and discriminatory at worst.” They alleged that they had been “perenially harassed by the
HOA [Homeowners’ Association].” Mr. Morris denied that any of the accusations of
prejudice in Homeowners’ letter had any factual basis.
On cross-examination, Mr. Morris acknowledged that the Standards of Appearance
Policy was not adopted by Avalon until 2010 and that, prior to that time, the only standards
used by the ARC were those in the Declaration. Mr. Morris was also asked about a fence in
Homeowners’ yard, built by the developer, that did not comply with governing standards.
There were other similar fences in the neighborhood, and the ARC initially approved
Homeowners’ fence for that reason. Then, eighteen months later, the ARC decided to revoke
its approval. After Homeowners retained counsel, the matter was resolved and Homeowners
were allowed to keep their fence. Mr. Morris testified that Homeowners had complained
about residents of the neighborhood using guest parking spots, thereby blocking
Homeowners’ view of the lake. The parking issue was not resolved to Homeowners’
satisfaction.
Homeowners introduced a photograph dated October 2007 showing the planter in
question in their yard. They questioned Mr. Morris about other landscaping in the
neighborhood that used scalloped blocks and had been approved by the ARC. Homeowners
also asked Mr. Morris about other alleged violations of the Declaration that had been allowed
by the ARC.
On redirect, Mr. Morris explained that the other border blocks about which he had
been questioned were not in the middle of the front yard as in Homeowners’ case. In
Homeowners’ case, the ARC approved the landscaping but not the border blocks. Based
upon the language of the Declaration, Mr. Morris stated, the ARC considered whether a
particular improvement was consistent with design guidelines and “compatible with other
improvements constructed within the development.” Mr. Morris also testified:
Q. So is Mr. Chaudhuri’s border blocks—are they consistent within the
neighborhood?
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A. No, sir.
Q. Are they compatible with the esthetics in the neighborhood?
A. Not in the opinion of the Architectural Review Committee.
Q. Well, and I think Mr. Johnston [defense counsel] brought that out. The
blocks themselves aren’t. Is that correct?
A. Correct.
Q. It’s where they are located?
A. Correct.
Q. Okay. Are there any other blocks of that shape, form, or fashion right in
the middle of anybody’s yard?
A. No, sir, not to my knowledge.
Mr. Morris later affirmed that, “other than the fact that this flower bed was in the center of
the yard with landscaping blocks, it would have been consistent [with the neighborhood].”
Thus, it was the location of the blocks that caused the ARC to deny approval.
Rosemary Kelly, an officer on the Avalon board of directors, testified that
Homeowners’ property was in violation of the restrictive covenants. Ms. Kelly was a
member of the ARC when the Standards of Appearance policy was adopted. She stated that
the board wanted to create “a consistent documentation for residents to understand what
would be approved or not approved.” Asked why the ARC did not approve Homeowner’s
landscaping, she stated that the issue was “lack of consistency” in that “[t]here was no other
property that has a freestanding landscape bed in the [front] yard that has any border blocks
around it.” Ms. Kelly testified that it was the responsibility of the board and the ARC to
enforce the restrictive covenants; otherwise, “the esthetics of the community come into—into
potentially being negatively impacted and could reduce property values.”
Ms. Kelly stated that she did not think the border blocks around Homeowners’
landscape bed were an eyesore. If they were up against the house, they would be compatible
with the development. She further stated: “I personally think they look fine. It’s the
inconsistency and placement.” Ms. Kelly testified that there was no other home in the
development with border blocks around a landscape bed in the middle of the front yard.
Alexander Greenwood was member of the ARC at the time when Homeowners’
landscaping application was denied. He testified: “It was inconsistent with the other homes
in the neighborhood. We didn’t feel it was in compliance with the standards of the
neighborhood.” He further stated that the border blocks were not compatible when used in
the middle of the front yard. The main issue was the fact that the border blocks formed an
island in the front yard.
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Homeowners called Richard Yarbrough, a member of the ARC during the relevant
time period, as a witness. He testified about the problem with Homeowners’
landscaping—the fact that it was in the middle of the front yard and used the scalloped
border blocks.
Dilip Chaudhuri, one of the Homeowners, testified that the purchase agreement
regarding Homeowners’ house in Avalon subdivision was signed in January or February
2007, before the house was built. He testified about a photograph of the house which
showed a date of October 24, 2007, before they moved into the house; the photograph
showed that the landscaping at issue was already there. Mr. Chaudhuri testified that, without
the border blocks, the mulch on the landscape bed would wash away. This was one reason
why he refused to remove the border blocks. Mr. Chaudhuri also stated:
The second reason is that I had been picked at by the ARC or the board for no
fault of mine for over several years. I had to pay legal expenses because of
that erroneous actions [regarding the fence issue], and they did not own up to
anything. They did not apologize to me that they made a mistake. So at this
point, my position is that just because—because I am not a born U.S. citizen,
I am—I am not white, I am different, so they are discriminating against me.
That is my position, right or wrong.
Mr. Chaudhuri testified about his disagreements with the ARC regarding the fence issue and
the parking issue (referenced above).
The court questioned Mr. Chaudhuri further about the photograph of the house:
THE COURT: On your picture here, again, you know, I’ll take it [on] faith that
it was taken October 24th . The rocking chair that’s there on the front porch, is
that your rocking chair, do you recall?
THE WITNESS: Yeah.
THE COURT: Again, it’s a little unusual for—for you to be able to take
possession of the house before your deed of the house. Were you moving
furniture into the house before you even received the deed?
THE WITNESS: We did some because we had furniture from other homes that
we are put [sic] in storage and moving it. I—I can show the court the original
picture in my computer, and you cannot—you cannot manufacture those dates.
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Trial court’s ruling
The court entered an order on September 15, 2013 in which it ruled in favor of
Avalon. With respect to the restrictive covenants and their enforcement in this case, the court
made the following pertinent findings:
1. The Court found that Plaintiff’s Restrictive Covenants are vague and that
their enforcement is very subjective. However, the Court found that the
Covenants [in the Declaration] are enforceable as long as the homeowner is on
notice of the Board’s general authority and the Board then follows its own
appropriate procedures in enforcing the Restrictive Covenants, then the
Restrictive Covenants can be enforced.
2. The Court found that even though Restrictive Covenants may not be
favored by the law, the Court does not strike them down because they may be
subjective in nature.
3. The Court found that the Plaintiff’s Restrictive Covenants clearly define
what an improvement is, that it clearly includes landscaping, and when the
homeowners signed and purchased into the community and accepted the part
of the Deed regarding Restrictive Covenants, that he may have to get
permission for any improvement made that would be compatible with the rest
of the neighborhood. Therefore, the Court found the Defendants subject to the
Restrictive Covenants and, the Restrictive Covenants as written, enforceable.
4. The Court found that the Plaintiff noticed Defendants were making
improvements to their lot, that Plaintiff put Defendants on appropriate notice
that Defendants did not get permission for said improvements and notified
Defendants that they needed to get permission for their irrigation and
landscaping brick improvements.
5. The Court further found that Plaintiff went through the proper procedures
to meet, vote and notify Defendants that the irrigation improvement was
approved but that the landscaping bricks were not approved. The Court
specifically found that Plaintiff enforced their rules appropriately.
6. The Court specifically found that the Plaintiff’s enforcement of its
Restrictive Covenants [was] not arbitrary or capricious. The Court found that
Plaintiff stated clear reasons for its denial of Defendants[’] request for
landscaping bricks: inconsistency or incompatibility with the neighborhood,
and there were no other homes with the type of bricks in that type of
arrangement in their front yard.
The court found no evidence to support Homeowners’ claims of selective enforcement. The
court then considered Avalon’s request for attorney fees and gave a detailed account of its
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reasoning in awarding $2,000 out of the $10,000 claimed by Avalon.
Avalon filed a motion to alter or amend the judgment asserting that Homeowners’
disregard for the restrictive covenants and their frivolous claims caused Avalon to incur
additional attorney fees. Avalon requested that the trial court amend the judgment to award
it the requested amount of attorney fees. The court denied Avalon’s motion, stating that,
although the attorney fees claimed by Avalon were reasonable and necessary, the court
considered the mitigating circumstances, “specifically that the landscape border blocks at
issue in this case were in place on Defendants’ front lawn at or near the time of their
purchase of their home and that the Defendants reasonably believed they had the right to
have the border blocks.”
On appeal, Homeowners raise the following issues: (1) whether the trial court erred
in holding that the restrictive covenants were valid and enforceable and could be used to
require Homeowners to remove the landscape border blocks at issue; (2) whether the trial
court erred in allowing Avalon to apply the Standards of Appearance Policy retroactively;
(3) whether such retroactive application constitutes a violation of due process; and (4)
whether enforcement of the restrictive covenants to prohibit the use of the landscape border
blocks at issue is arbitrary and capricious and an abuse of discretion. Avalon raises several
additional issues: (1) whether the trial court abused its discretion in awarding it only $2,000
of the $15,320 in attorney fees it was forced to incur in this case; and (2) whether Avalon
should be awarded attorney fees and costs on appeal.
A NALYSIS
Restrictive covenants
We begin with the main issue of whether the trial court erred in upholding Avalon’s
application of the restrictive covenants to Homeowners in this case.
Tennessee law does not favor restrictive covenants because they are in derogation of
a property owner’s fundamental right to the “free use and enjoyment of property.” Hughes
v. New Life Dev. Corp., 387 S.W.3d 453, 474-75 (Tenn. 2012). Courts construe restrictive
covenants strictly, and any doubt as to the applicability of such a covenant must be resolved
against the restriction. Id. at 481. Nonetheless, restrictive covenants applicable to residential
developments and administered by homeowners’ associations, which have proliferated in
recent decades, have been recognized as valid and enforceable under certain conditions. See
id. at 475. The following principles govern:
Restrictive covenants conditioning the right of property owners to make
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improvements on the approval of a homeowners association or architectural
committee are generally valid and enforceable. See Association of Owners of
Regency Park Condominiums, Inc. v. Thomasson, 878 S.W.2d 560, 563-565
(Tenn. Ct. App. 1994); see also Snowmass Am. Corp. v. Schoenheit, 524 P.2d
645, 647-48 (Colo. Ct. App. 1974); Hollingsworth v. Szczesiak, 84 A.2d 816,
821 (Del. Ch. 1951). The prevailing view in this jurisdiction is that these sorts
of restrictive covenants will be enforced as long as the entity administering
them acts reasonably and in good faith. See Indian Hills Club Homeowners
Ass’n, Inc. v. Cooper, 1995 WL 763823, at *3.
Restrictive covenants are enforceable even though they vest discretionary
powers with the architectural committee. See Country Club of La. Prop.
Owners Ass’n, Inc. v. Dornier, 691 So. 2d 142, 150 (La. Ct. App. 1997)
(Fitzsimmons, J., concurring). The courts will uphold review criteria as long
as they provide a reasonable framework for the committee’s decision, see
Winslette v. Keeler, 220 Ga. 100, 137 S.E.2d 288, 289 (Ga. 1964), and as long
as the committee developing the criteria is acting reasonably and in good faith.
See Indian Hills Club Homeowners Ass’n, Inc. v. Cooper, 1995 WL 763823,
at *4; Country Club of La. Prop. Owners Ass’n, Inc. v. Dornier, 691 So. 2d at
150. When the restrictive covenants establish a review committee but do not
contain specific criteria for the committee to follow, the validity of the criteria
and the committee’s interpretation of the criteria will be judged by a standard
of reasonableness. See 4626 Corp. v. Merriam, 329 So. 2d 885, 889 (La. Ct.
App. 1976).
Vills. of Brentwood Homeowners Ass’n, Inc. v. Westermann, No. 01A01-9708-CH-00388,
1998 WL 289342, at *3 (Tenn. Ct. App. June 5, 1998); see also Hickory Woods Estates
Homeowners Ass’n v. Parman, No. 01A01-9901-CH-00034, 1999 WL 617623, at *3 (Tenn.
Ct. App. Aug. 17, 1999).
Whether the approval or disapproval of an improvement is reasonable “is a factual
question to be determined in light of the circumstances.” Indian Hills Club Homeowner’s
Ass’n, Inc. v. Cooper, No. 01A01-9507-CH-00319, 1995 WL 763823, at *4 (Tenn. Ct. App.
Dec. 29, 1995). The most important criterion applicable to this determination is whether
there is “lack of compliance with the specific restrictions of the subdivision and construction
that is not consistent or harmonious with the overall plan of development or with neighboring
property.” Id. (citations omitted). In determining whether the homeowners association or
architectural committee acted with reasonableness and good faith, the court “must consider
the surrounding circumstances and general scheme of development that has been established”
prior to the improvements at issue. Id. at *5.
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There is no real dispute in this case that the restrictive covenants required all
landscaping improvements to be approved by the ARC and that the landscaping at issue
constitutes an “improvement” under the Declaration’s definition. The Declaration contains
the following relevant provision concerning the authority of the ARC:
No improvement shall be erected, constructed, placed, maintained, or
permitted to remain on any Lot which is owned by any person other than
Developer until the Plans therefor (the “Plans”) shall have been submitted to
and approved in writing by the ARC, which shall determine in its sole
discretion whether or not the proposed Improvement, and all features thereof,
is consistent with the Design Guidelines (the “Design Guidelines”) as set forth
in Paragraph 3 of this Article V and otherwise compatible with other
Improvements constructed within the Development. The ARC shall be the sole
judge and arbiter of such consistency and compatibility. . . . The ARC may
refuse approval of any Plans that in its sole discretion are inconsistent with
the overall purpose of aesthetic values of the Development or the architectural
standards described in the Design Guidelines.
(Emphasis added). Although the Declaration gives the ARC the authority to promulgate
Design Guidelines, the ARC had not, as of the relevant time period, exercised its discretion
to do so.
The trial court made specific factual findings as to the reasonableness of the ARC’s
actions, including the following:
5. . . . The Court specifically found that Plaintiff enforced their rules
appropriately.
6. The Court specifically found that the Plaintiff’s enforcement of its
Restrictive Covenants were not arbitrary and capricious. The Court found that
Plaintiff stated clear reasons for its denial of Defendants request for
landscaping bricks: inconsistency or incompatibility with the neighborhood,
and there were no other homes with the type of bricks in that type of
arrangement in the front yard.
7. The Court specifically found that there was no proof of selective
enforcement on behalf of Plaintiff.
Homeowners emphasize the court’s finding that the restrictive covenants are “vague” and
“very subjective” in their enforcement. The Court went on to conclude, however, that the
covenants are enforceable “as long as the homeowner is on notice of the Board’s general
authority and the Board then follows its own appropriate procedures in enforcing the
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Restrictive Covenants.” As stated above, as long as the actions of the ARC are reasonable
and taken in good faith, the restrictive covenants are enforceable. See Westermann, 1998
WL 289342, at *3.
Homeowners argue that the covenants “contain no specific prohibition against such
flowerbeds and border blocks.” The law does not, however, require that the restrictive
covenants be specific in their criteria. The ARC has the discretion, under the Declaration,
to determine what improvements are consistent with the neighborhood. Homeowners
complain that, “to require [Homeowners to remove their landscape border blocks, the
restrictive covenants have had to be extended by implication by the ARC on grounds that the
border blocks were inconsistent and incompatible with the neighborhood.” That is exactly
what the ARC decided, and Homeowners have not established that the ARC acted
unreasonably or without good faith. The evidence does not preponderate against the trial
court’s findings upholding the actions of the ARC.
Standards of Appearance Policy
The Standards of Appearance Policy was adopted by the ARC in 2010, several years
after Homeowners installed the border blocks at issue here. Homeowners argue that the ARC
applied this policy retroactively to them, thereby violating their due process rights. We
cannot agree.
The trial court did not mention the Standards of Appearance Policy in its decision,
probably because this policy has no relevance to this case. As Homeowners correctly point
out, this policy was adopted after they installed their border blocks. Ms. Kelly, an Avalon
board member, testified that the Standards of Appearance Policy was adopted to give
residents some guidance about “what would be approved or not approved.” The policy does
not address landscaping border blocks. While one of the letters sent by Avalon to
Homeowners mentioned this policy, the ARC’s decision to deny Homeowner’s request for
approval of the border blocks was made in accordance with the general standard established
in the Declaration of consistency and compatibility with the neighborhood.
We find no evidence to support Homeowners’ argument that the Standards of
Appearance Policy was retroactively applied to their case.
Attorney fees
The Declaration provides that, in the event that Avalon or an aggrieved owner
employs counsel to enforce a restrictive covenant, “the prevailing party in any legal action
shall be entitled to recover from the non-prevailing [party] its costs and expenses, including
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reasonable attorney’s fees, incurred in such action.” Avalon argues that the trial court erred
in awarding it only $2,000 out of the $15,320 incurred at the trial level.
The award of attorney fees is within the trial court’s discretion and will not be
overturned absent an abuse of discretion. Wright ex rel. Wright v. Wright, 337 S.W.3d 166,
176 (Tenn. 2011). In reviewing the award, we look at the evidence in the light most favorable
to the trial court’s decision. Id. A reviewing court will find an abuse of discretion only if the
trial court “applied incorrect legal standards, reached an illogical conclusion, based its
decision on a clearly erroneous assessment of the evidence, or employ[ed] reasoning that
causes an injustice to the complaining party.” Konvalinka v. Chattanooga-Hamilton Cnty.
Hosp. Auth., 249 S.W.3d 346, 358 (Tenn. 2008); see also Lee Med., Inc. v. Beecher, 312
S.W.3d 515, 524 (Tenn. 2010). Thus, we are required to uphold the trial court’s ruling “as
long as reasonable minds could disagree about its correctness,” and “we are not permitted
to substitute our judgment for that of the trial court.” Caldwell v. Hill, 250 S.W.3d 865, 869
(Tenn. Ct. App. 2007).
The trial court found the attorney fees generated by Avalon to be reasonable, but went
on to explain, in detail, its decision not to award the full amount requested:
The Court found that Defendant[s’] violation itself was relatively minor
and that the Board’s drawing the line in the enforcement of its Restrictive
Covenants was valid.
The Court found that based upon the proof, the landscaping stones in
and of themselves are not unattractive, ugly or an eye sore. However, the
Court found that the landscaping bricks are just not allowed and are not
compatible with the rest of the neighborhood. The Court found that for
attorney’s fees purposes, the foregoing would tend to mitigate the
Defendant[s’] damages significantly.
The Court considered the timing of when the landscape bricks were put
into effect, stating that if it was prior to closing with the full understanding and
the authorization of the contractor, then that would give Defendants a bit of a
shield. The Court found that although the Defendants did not remove the
landscape bricks when told to do so, they have every right to question the
Board’s authority if they had been in place for several years, even prior to their
closing on the purchase of their home; however, Court found that there was
some question as to whether or not the landscaping bricks were put into place
prior to their closing on the property. Nevertheless, the Court found the
landscape bricks being in place slightly before or close to the time of closing
a pretty significant factor that the Court has to consider in mitigating whether
Defendants should be required to pay attorney’s fees for the Board’s actions.
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The Court ruled that it had a hard time believing that the contractor
would allow Defendants to put in landscaping bricks prior to closing.
However, Defendants submitted credible proof that the landscape bricks were
put in before closing. The Court found that based on its finding the landscape
bricks were put in close to the closing date, that Defendants had a right to
question the Board[’s] authority based upon their belief that they had the right
to have the landscape bricks where they were.
The Court ruled that Defendants did real damage to their defense by
claiming that there was racism involved in this case without proof. That such
allegation truly distracts the Court from the main issue and that this case had
nothing to do with race.
...
With regard to attorney fees, the Court found that Plaintiff was going
to claim more than Ten Thousand Dollars ($10,000.00) in attorney’s fees and
that considering the subjectiveness of the Restrictions in place and the timing
of when the landscape bricks were installed, the Court found that Defendants
should be responsible for Two Thousand Dollars ($2,000.00) of Plaintiff’s
attorney’s fees to offset the expense of Plaintiff in prosecuting this claim
against Defendants . . . .
The Court found that Plaintiff prosecuted the case with a bit more zeal
than it would have preferred them to do. However, the Court ruled that they
were within their right to do so and upheld that right.
The Court found that Plaintiff was right, and has the right to enforce its
claims, and the importance of having restrictions and covenants. However, the
Court found that the right comes with a responsibility and that just because the
Association prosecutes its rights does not mean it is going to recoup all its cost.
The trial court heard all of the evidence and evaluated the credibility of all of the
witnesses. Avalon disagrees with the court’s decision regarding attorney fees, but it has not
identified any respect in which the court applied an erroneous legal standard or otherwise
abused its discretion.
Avalon has requested its attorney fees on appeal, and we have concluded that it should
receive an award for all reasonable and necessary attorney fees on appeal.
C ONCLUSION
We affirm the decision of the trial court and award the appellee its reasonable and
necessary attorney fees in prosecuting this appeal. The case is remanded to the trial court to
determine the amount of attorney fees to be awarded. Costs of this appeal are assessed
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against the appellant, and execution may issue if necessary.
_________________________
ANDY D. BENNETT, JUDGE
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