central-austin-apartments-llc-up-32nd-street-llc-and-up-32nd-street ( 2014 )


Menu:
  •       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
    NO. 03-13-00080-CV
    Appellants, Central Austin Apartments, LLC; UP-32nd Street, LLC; and UP-32nd Street
    Hospitality, LLC// Cross-Appellants, East Avenue Property Owners’ Association, Inc. and
    UP Austin Holdings, LP and UP Austin Land Holdings, LP
    v.
    Appellees, UP Austin Holdings, LP; UP Austin Land Holdings, LP; and East Avenue
    Property Owners’ Association, Inc.// Cross-Appellees, Central Austin Apartments, LLC;
    UP-32nd Street, LLC; and UP-32nd Street Hospitality, LLC
    FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT
    NO. D-1-GN-11-003367, HONORABLE SCOTT H. JENKINS, JUDGE PRESIDING
    MEMORANDUM OPINION
    The principal issue in this case is whether East Avenue Property Owners’
    Association, Inc. (the POA) had authority to levy a special assessment to complete basic
    infrastructure for a multi-million dollar property development that the original developer abandoned
    after becoming insolvent before the infrastructure was finished. The POA issued a $2.99 million
    special assessment to complete part of the essential infrastructure work, which was then allocated
    to the property owners pro rata based on property value. UP Austin Holdings, LP, which at that time
    owned one of the few developed lots in the project, and UP Austin Land Holdings, LP, a related
    entity that owned several undeveloped lots (collectively, UP Austin), sued for a declaration that the
    assessment was invalid and void and sought appointment of a receiver for the POA. See Tex. Bus.
    Orgs. Code § 11.404 (appointment of receiver for domestic entity). UP Austin also sued other
    property owners who had voted to approve the assessment—Central Austin Apartments, LLC
    (CAA), UP-32nd Street, LLC (the Owner Declarant), and UP-32nd Street Hospitality, LLC
    (Hospitality) (collectively, the Owners)—seeking damages and attorney’s fees under a minority-
    oppression theory.
    Following a bench trial, the trial court (1) concluded that the POA lacked the power
    and authority, under the development’s amended Covenants, Conditions, and Restrictions (Amended
    CCRs), to levy assessments for construction of original subdivision infrastructure and that the special
    assessment was therefore ultra vires and void ab initio; (2) nullified two subsequent amendments
    to the Amended CCRs and permanently enjoined the Owner Declarant from further amending the
    CCRs to increase its voting power or extend its control period without UP Austin’s prior consent;
    (3) declined to appoint a receiver for the POA because nullifying the Amended CCRs and issuing
    a related permanent injunction were adequate alternative remedies; (4) found that the Owners
    oppressed UP Austin by using their control of the POA to levy the special assessment; (5) found
    that the Owner Declarant oppressed UP Austin with respect to the second and third amendments to
    the CCRs; and (6) denied UP Austin’s request for prejudgment attorney’s fees but conditionally
    granted UP Austin post-judgment and appellate attorney’s fees. The trial court further denied
    (1) UP Austin’s requests for actual and exemplary damages, (2) the POA’s counterclaims to compel
    payment of the special assessment and for attorney’s fees, and (3) the Owners’ counterclaim for
    attorney’s fees and cross-claims for reimbursement of the sums they had paid to the POA pursuant
    to the void special assessment. All of the parties challenge the trial court’s judgment in numerous
    2
    respects, but they predominantly challenge the invalidation of the special assessment and the award
    and denials of attorney’s fees. We will affirm in part, reverse and render in part, and reverse and
    remand in part.
    FACTUAL AND PROCEDURAL BACKGROUND1
    The dispute in this case involves a multi-million dollar mixed-use redevelopment plan
    for the former Concordia University campus in Austin, Texas. In 2007, 2008, and 2009, the Austin
    City Council approved three site plan components of a planned unit development (PUD) for the
    site, which was then known as East Avenue and is now called University Park. A PUD is intended
    for large or complex developments that are under unified control and are planned as a single
    continuous project.2 Once a unified site plan has been approved, the City will not issue permits
    or a permanent certificate of occupancy (CO) to any lot owner within the subdivision until all
    requirements of the unified site plan are satisfied, in addition to requirements specific to each
    1
    The complicated factual and procedural background of this case is well known to the parties and
    will not be repeated at length in this opinion.
    2
    The City of Austin’s frequently-asked-planning-questions page explains,
    A [PUD] is intended for large or complex developments under unified control
    planned as a single continuous project, to allow single or multi-use projects within
    its boundaries and provide greater design flexibility for development proposed within
    the PUD. Use of a PUD district should result in development superior to that which
    would occur using conventional zoning regulations. PUD zoning is appropriate if the
    PUD enhances preservation of the natural environment; encourages high quality and
    innovative design and ensures adequate public facilities and services for development
    within the PUD.
    austintexas.gov website (http://www.austintexas.gov/faq/planned-unit-development-pud-what-it)
    (accessed Oct. 30, 2014).
    3
    owner’s individual lot. Until permanent COs are issued, temporary COs may be periodically issued
    if certain requirements are met.
    After the PUD was approved, the original developer, East Avenue IG LP, organized
    the POA, enacted the Bylaws and original CCRs, and was named the “declarant” in the CCRs. The
    CCRs allow the declarant to exercise control over the direction and processes of the subdivision
    and POA until a time certain (the Declarant Control Period), at which point control will transition
    to the POA. The Declarant Control Period afforded East Avenue IG an opportunity to complete
    construction of the project and its infrastructure and amenities while protecting its investment in
    the development, which is typical and anticipated for the development of a PUD. Indeed, it is
    undisputed that the developer intended to fully fund and complete the original subdivision
    infrastructure for the University Park development. Unfortunately, East Avenue IG became
    insolvent before completing a significant portion of the essential infrastructure—including streets,
    drainage, sidewalks, and utilities—and without posting adequate fiscal security with the City of
    Austin to ensure its completion.
    When the original developer pulled out, the development consisted of several
    individually owned condominium units, an office building on Lot 4 that was operating under a
    temporary CO (Lot 4), partially completed infrastructure, and several undeveloped lots. The cost
    to complete critical infrastructure was estimated to be $5.5 million.
    On January 29, 2010, a series of transactions were consummated in which (1) the
    CCRs were amended to assign the declarant’s rights and obligations to the Owner Declarant (the
    4
    Amended CCRs),3 (2) several lots were transferred to the POA along with existing construction
    permits and materials, and (3) several undeveloped commercial lots were acquired by the Owner
    Declarant, CAA, and Hospitality, entities that were affiliated with Cypress Real Estate Advisors, Inc.
    (Cypress).4 As part of the asset transfer, East Avenue assigned to the POA “[a]ll of [its developer’s]
    rights pertaining to development of [the common area lots transferred to the POA] arising under
    Governmental Approval [permits, PUD ordinance, site plans, etc.] relating to or concerning all [or]
    any portion of the land.” The sale of property to the Owners was “a transfer of assets only and no
    liabilities or obligations.” In purchase and sale documents, the Owners also expressly disclaimed
    any responsibility for the sellers’ general obligations, and correspondingly, the sellers warranted
    that they had not made any commitments to third parties that would obligate the Owners “to
    construct, install, or maintain any improvements . . . on or off [the land conveyed to the Owners].”
    Contemporaneously with the sales transactions, principals or persons affiliated with Cypress became
    Board members of the POA.5
    Following the preceding transactions, Lot 4 remained in the hands of an entity
    affiliated with the original developer. In June 2010, however, the lender foreclosed on Lot 4 and
    3
    Under section 9.06 of the original CCRs and the Amended CCRs, the declarant “may, by written
    instrument, assign, in whole or in part, any of its privileges, exemptions, rights and duties under this
    Declaration to any person or entity and may permit the participation, in whole, in part, exclusively,
    or non-exclusively, by any other person or entity in any of its privileges, exemptions, rights and
    duties [under the CCRs].”
    4
    According to the record, Cypress, a non-party, manages a real-estate investment fund under which
    the Owners are organized.
    5
    Under the Amended CCRs, the Owner Declarant has “the absolute right to appoint members of
    the Board” during the Declarant Control Period, which lasts at least until December 31, 2020, but
    may assign or delegate its rights and powers to the POA, the board, or any other entity.
    5
    subsequently paid more than $370,000 to complete remaining infrastructure in common areas
    adjacent to that lot. The following year, UP Austin acquired Lot 4 from the lender. At the time of
    its acquisition, UP Austin knew that the Lot 4 office building lacked a permanent CO, that site-
    specific infrastructure was required for it to obtain a permanent CO, and that other infrastructure
    not directly benefiting Lot 4 was required under the site plan. Subsequent to the Lot 4 transaction,
    UP Austin also procured additional undeveloped lots in the University Park development.
    The foregoing transactions resulted in fragmented ownership of property subject to
    site plans for a PUD, which might be described colloquially as an “all for one, one for all” endeavor.
    The resulting lack of unified control, coupled with the divergent and intertwined interests of the
    property owners, is the genesis of the underlying lawsuit, which principally concerns the various
    parties’ rights and obligations with respect to completing the infrastructure required under the
    approved site plans.6
    Both before and after UP Austin acquired its interests in University Park, the property
    owners engaged in negotiations in an attempt to find a solution to their mutual infrastructure
    problems. Due to issues about correlative rights, obligations, and needs, the property owners reached
    what appeared to be an impasse as to the means, manner, and timing of funding and completing
    the outstanding infrastructure. Due to the apparent stalemate, the POA, purporting to exercise its
    assessment power under the Amended CCRs, levied a $2.99 million special assessment to complete
    some of the outstanding infrastructure, much of which was offsite or partially offsite in the public
    6
    For example, UP Austin cannot obtain a permanent CO for the Lot 4 office building without
    construction of a water-quality pond on Lot 1, which is owned by CAA and is not within the
    common area.
    6
    right-of-way assessment and did not include some of the work necessary for UP Austin to obtain a
    permanent CO for Lot 4.7
    The Owners all voted in favor of the assessment, and UP Austin opposed it.8 In
    accordance with the assessment formula provided in the Amended CCRs, the special assessment was
    then allocated pro rata to each lot owner based on each lot’s appraised value.9 Because UP Austin
    owned the only lot that had been commercially developed, this formula resulted in $1.65 million of
    the special assessment (55%) being allocated to UP Austin, which owned only 27% of the non-
    exempt acreage. With respect to Lot 4 specifically, that tract represented less than 10% of the non-
    7
    The POA had previously issued a more limited special assessment that precipitated the initial
    lawsuit filing, but that assessment was amended in December 2011, and it is the amended assessment
    that is presently at issue. Neither a regular nor special assessment had ever been levied by the POA
    prior to the disputed special assessment.
    8
    As the declarant under the Amended CCRs, the Owner Declarant had enough voting power to
    approve the special assessment without the agreement of any other member. The trial court found,
    however, that CAA, Hospitality, the Owner Declarant, and the POA were under common control by
    Cypress or individuals associated with Cypress and therefore concluded that they acted collusively
    with one another to approve the special assessment.
    9
    The Amended CCRs provide the following formula for allocating a special assessment among the
    property owners:
    The Declarant, for each Lot owned within the Property, hereby covenants, and each
    Owner by acceptance of a deed to a Lot (but excluding Common Area Lots) . . . is
    deemed to covenant and agree to pay to the Association . . . special assessments as
    hereafter provided, each based on the Pro-Rata Share of each Owner. The ‘Pro-Rata
    Share’ of each of the Lots will be a fraction, the numerator of which is the TCAD
    value of the Lot (with Improvements) and the denominator of which is the TCAD
    value of all of the Lots (with Improvements) subject to this Declaration, excluding
    the Common Area Lots. The TCAD value will mean and refer to the market value
    determined by the Travis Central Appraisal District (or its successors) for ad valorem
    tax purposes for the calendar year previous to the year for which the Association’s
    assessment is made and without regard to special use designations, exemptions or
    pending judicial appeals of appraised value.
    7
    exempt acreage, but was allocated nearly 54% of the special assessment because it had the highest
    appraised value.
    Although there were other issues and conflicts among the parties, the special
    assessment appears to have been the tipping point for the underlying litigation. The Owners paid
    their allocated portion of the special assessment, and the Owner Declarant paid the condominium
    owners’ share because the individual owners of those units would not be significantly benefitted by
    the completion of the outstanding infrastructure. UP Austin, which would be directly benefitted by
    some of the special-assessment work but only generally benefitted by a significant portion of it,
    refused to pay the assessment and was issued a delinquency notice for the outstanding balance.
    In lieu of paying the special assessment, UP Austin filed suit seeking a declaration,
    among other claims, that the Owner Declarant was responsible for completing that infrastructure
    at its own expense.10 It eventually abandoned or settled several of its initially asserted claims.11
    10
    Pertinent to the issues on appeal, the Amended CCRs specify that the declarant has the right but
    not the obligation to develop the property as follows:
    It is contemplated that the Property will be developed pursuant to a coordinated plan,
    which may, from time to time, be amended or modified. Declarant reserves the right,
    but will not be obligated, to create and/or designate Lots, Special Common Areas
    and Common Areas and to subdivide with respect to any of the Property pursuant to
    the terms of this Section 8.05, subject to any limitations imposed on portions of
    the Property by any applicable plat. These rights may be exercised with respect to
    any portions of the Property. As each area is developed or dedicated, Declarant may
    designate the use, classification and such additional covenants, conditions and
    restrictions as Declarant may deem appropriate for that area.
    11
    The trial court found that UP Austin had asserted and abandoned the following claims:
    UP Austin sought injunctive relief against the [Owners] relating to their obligations
    under the Amended CCRs, but [UP Austin] abandoned those claims. [UP Austin]
    sought temporary and permanent injunctions against the [Owners], ordering them to:
    8
    Ultimately, UP Austin’s main claims sought to invalidate the special assessment for both offsite
    and common-area construction of initial infrastructure, to have a receiver appointed for the POA
    pursuant to section 11.404 of the Texas Business Organizations Code, and to recover actual and
    exemplary damages from the Owners based on a theory of minority oppression. The POA asserted
    a counterclaim against UP Austin for failing to pay the special assessment and sought attorney’s fees;
    the Owners asserted a counterclaim against UP Austin for attorney’s fees and a cross-claim
    against the POA to recover the amounts each of them paid pursuant to the special assessment if it
    was held to be void.12
    Shortly before the lawsuit was filed, the Owner Declarant exercised its unilateral right
    to amend the CCRs in the following pertinent ways:13 (1) extending the Declarant Control period
    (i) keep the property free of rubbish and debris; (ii) keep the property free from
    improperly screened construction materials; (iii) provide proper care for the mature
    trees and other vegetation; (iv) complete the Common Area infrastructure already
    begun; and (v) complete the other unfinished construction; or (vi) alternatively,
    return the affected portions of the lots to their pre-construction, re-vegetated
    condition; claims which [UP Austin] abandoned at or before trial. Plaintiffs also
    pled, then abandoned, a request for “a declaration under the Texas Uniform
    Declaratory Judgments Act that [the Owner Declarant] is required to complete the
    infrastructure begun by [East Avenue IG] included in the disputed special
    assessment. (Second alteration in original).
    UP Austin does not dispute this fact finding, but explains that some of the claims were “abandoned”
    only because they appeared to have been resolved by a Rule 11 agreement that was substantially
    performed before the trial court determined that it was unenforceable by specific performance and
    had been conditioned on the right to seek reimbursement after performance.
    12
    The Owner Declarant paid $515,792; CAA paid $291,972; and Hospitality paid $279,701.
    13
    Section 9.05 of the Amended CCRs provides: “Notwithstanding the provisions of Section 9.03
    above, during the Declarant Control Period, the Declarant may amend this Declaration without the
    joinder or consent of any person.”
    9
    until “neither Declarant, nor any entity that directly, or indirectly through one or more intermediaries,
    controls, or is controlled by, or is under common control with Declarant, owns any Lots within the
    Property”; (2) increasing its voting power from seven votes per owned acre of land to seven votes
    per acre plus two votes for every one vote exercisable by the non-declarant property owners;
    and (3) deleting a cap14 on the amount of special assessments, which could be overridden only
    by a majority member vote (second amended CCRs). While the lawsuit was pending, the Owner
    Declarant amended the CCRs a third time by adding a provision requiring the POA to reimburse an
    owner for the amount of any remitted assessment, plus interest, if the assessed amount is determined
    by the board to be in excess of the owner’s allocated share or by a court to have been improperly
    levied (third amended CCRs).
    It was essentially undisputed that initial infrastructure for a PUD is usually completed
    and funded by the developer rather than by the property owners’ association while the property is
    under the developer’s control. It is further undisputed that the developer usually deposits sufficient
    funds with the city to secure completion of the infrastructure. In this case, however, neither of the
    customary practices occurred. Indeed, all the parties to the dispute agree that the circumstances
    presented are unique; the witnesses at trial testified that none had encountered another commercial
    real-estate transaction in which the original developer became insolvent before completing the initial
    infrastructure under a unified site plan, ownership of the property had been divided among several
    14
    “No special assessment which (together with all prior special assessments levied in the same
    calendar year) would exceed 25% of the current year’s regular assessment may be made until the
    same is approved by a vote of the Members holding at least 51 percent of the votes in the
    Association.” Amended CCRs § 4.04.
    10
    parties, and the controlling documents did not expressly obligate any party to complete the
    infrastructure. The POA and the Owners pointed out that these circumstances, however, were known
    to UP Austin when it acquired its land interests at University Park. They also took the position that,
    although the circumstances were unanticipated, the language of the dedicatory instruments was broad
    enough to permit the POA to levy an assessment to resolve the impasse and, given that authority, the
    POA had discretion as to which improvements to include in the special-assessment work.
    The overriding issue was thus whether the POA’s dedicatory instruments—the
    Amended CCRs and the Bylaws—permitted the POA to issue a special assessment to complete new
    construction of initial site infrastructure.
    After a lengthy bench trial, the trial court made three principal liability findings:15
    (1) the POA lacked authority to make a special assessment for the purpose of constructing initial
    site infrastructure; (2) the Owners, acting together, oppressed UP Austin “by levying a special
    assessment through the Cypress-controlled POA that would disproportionately impose the costs of
    initial infrastructure on UP Austin (and selecting infrastructure that would not permit UP Austin
    to get its [permanent CO])”;16 and (3) the Owner Declarant oppressed UP Austin by enacting the
    15
    The trial court made a number of alternative holdings that are challenged on appeal but which we
    do not reach.
    16
    The trial court found the special assessment oppressive on the basis that the Owners “aimed to
    minimize, if not eliminate, any benefit to UP Austin and the Lot 4 office building from the special
    assessment work,” “expected only one of the twenty-two special assessment projects . . . to assist
    UP Austin in obtaining a permanent [CO],” and excluded construction of a water-quality pond on
    CAA’s property from the special assessment knowing that UP Austin could not get a permanent CO
    for Lot 4 unless and until that work was completed. Underlying these findings is the trial court’s
    conclusion of common control among the Owners and the POA, which the Owners challenge on the
    basis of insufficient pleadings and evidence.
    11
    second and third amended CCRs. Based on these determinations, the trial court declared the special
    assessment void, invalidated the second and third amended CCRs, and permanently enjoined
    the Owner Declarant from further amending any of its dedicatory instruments for the purpose of
    increasing its voting power or extending the Declarant Control period without UP Austin’s prior
    written consent. See Tex. Prop. Code § 202.001 (defining “dedicatory instrument”). The court,
    however, denied appointment of a receiver, concluding that nullification of the second and
    third amended CCRs and the related permanent injunction were sufficient alternative remedies.17
    See Tex. Bus. Orgs. Code § 11.404(b)(3) (court may only appoint receiver if all other available legal
    and equitable remedies are inadequate). The court further denied UP Austin’s requests for actual
    and exemplary damages, but ordered the return of $1.6 million that UP Austin had deposited into
    the court’s registry as its pro rata share of the disputed assessment for Lot 4.
    With regard to the parties’ attorney-fee requests, the court concluded that (1) it would
    be equitable and just for each party to bear its own attorney’s fees in the trial court; (2) UP Austin
    prevailed on some of its claims against the POA and the Owners, but not others; (3) not all of
    the claims on which UP Austin prevailed authorized an award of attorney’s fees; (4) the attorney’s
    fees could be segregated, and not all legal tasks on each claim were inextricably intertwined;
    (5) UP Austin failed to segregate attorney’s fees despite numerous requests and opportunities to do
    so; (6) UP Austin’s failure to segregate fees was “a willful decision”; (7) UP Austin failed to
    17
    It does not appear that UP Austin specifically complained about the enactment of the second and
    third amended CCRs or requested the remedies the trial court granted. The trial court, however,
    determined that “[s]uch relief was consistent with the Court’s power under UP Austin’s general
    prayer.”
    12
    present competent evidence that its prejudgment attorney’s fees were reasonable and necessary; and
    (8) UP Austin was the prevailing party on the threshold declaratory-judgment claim (invalidation
    of the special assessment), the POA was not the prevailing party on that claim, and the Owners
    were not the prevailing party on that claim because they approved the special assessment through
    their control of the POA. Based on these holdings, the trial court denied the POA’s and the Owners’
    claims for attorney’s fees and denied UP Austin’s claim for prejudgment attorney’s fees, but
    generally granted UP Austin conditional appellate attorney’s fees.
    The court denied all other claims, including the Owners’ requests for
    reimbursement of remitted assessment fees under theories of “money had and received,” negligent
    misrepresentation, and unjust enrichment. Underlying the court’s minority-oppression findings and
    denial of the Owners’ cross-claims were various fact findings to the effect that the Owners and the
    POA were under the common control of Cypress and had colluded to levy the special assessment in
    a manner disadvantageous to UP Austin, both in its allocation and in the selection of infrastructure
    to be completed.18
    All parties filed notices of appeal attacking, in multiple respects, the judgment,
    findings of fact, and conclusions of law. The parties also seek to recover their own attorney’s fees
    while opposing liability for any other party’s attorney’s fees.
    18
    The Owners concede that they are each related to Cypress, a non-party that manages an investment
    fund overseeing those entities, but they contend there is no or insufficient evidence of common
    control. They further assert that UP Austin failed to plead and prove any theories based on alter-ego,
    veil piercing, or vicarious liability and expressly disclaimed any intent to assert an alter-ego theory
    of liability, which the court acknowledged at the final-judgment hearing.
    13
    DISCUSSION
    A.      Validity of Special Assessment for Construction of Initial Subdivision Infrastructure
    The threshold issue presented is whether the POA had authority to issue a special
    assessment for the purpose of constructing original subdivision infrastructure.19 The POA has the
    powers and authority enumerated in its dedicatory instruments. See Pine Trail Shores Owners’
    Ass’n, Inc. v. Aiken, 
    160 S.W.3d 139
    , 146 (Tex. App.—Tyler 2005, no pet.). The POA bears the
    burden of proving its authority to levy the special assessment. Id.; see Indian Beach Prop. Owners’
    Ass’n v. Linden, 
    222 S.W.3d 682
    , 691 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (“A party
    seeking enforcement of a deed restriction always has the burden at trial to demonstrate the
    enforceability of the restriction.”); Dyegard Land P’ship v. Hoover, 
    39 S.W.3d 300
    , 308
    (Tex. App.—Fort Worth 2001, no pet.) (party seeking enforcement of restrictive covenant bears
    burden of proving validity and enforceability of covenants).
    The Amended CCRs include a number of provisions pertinent to our resolution
    of this issue:
    3.06     Duties of the Association. . . . The Association . . . shall have and perform each of the
    following duties, as necessary:
    ....
    (e) Collection of Assessments. The Association shall levy and collect
    assessments to provide for the operation, maintenance, repair, replacement,
    19
    The parties do not dispute that the POA has some assessment authority, but they disagree as to
    the extent to which it is constrained by the plain language of the CCRs as opposed to being limited
    solely by the POA’s reasonable discretion. Because the POA has no discretion in the absence of
    authority, we must first ascertain the extent of the POA’s assessment authority as a threshold matter.
    14
    preservation, and protection of the Common Area, and as otherwise necessary
    for the performance of the functions of the Association, in accordance with
    Article IV of this Declaration.
    ....
    3.07    Powers and Authority of the Association. The Association
    shall have the powers of a Texas non-profit corporation,
    subject only to such limitations upon the exercise of such
    powers as are expressly set forth in this Declaration. It shall
    further have the power to do and perform any and all acts
    which may be necessary or proper for or incidental to the
    exercise of any of the express powers granted to it by the laws
    of Texas or by this Declaration. Without in any way limiting
    the generality of the two preceding sentences, the Association
    shall have the power and authority at all times as follows:
    ....
    (f) Construction. The Association may construct new Improvements
    in the Common Area as may be reasonably required to protect the value and
    desirability of the Property and subject to the approval of the Owner on
    whose Lot any such Improvements may be located, which approval shall not
    be unreasonably withheld or delayed.20
    ....
    4.02.   Purpose of Assessments. The assessments levied by the Association will be
    used exclusively for protection of the health, safety and welfare of the
    Owners; the protection of the value and desirability of the Property; the
    operation, maintenance, repair, replacement, preservation and protection of
    the Common Area; and the performance of the functions of the Association
    pursuant to this Declaration.
    ....
    20
    Section 1.11 of the Amended CCRs defines “Improvement” as “every structure and all
    appurtenances thereto of every type and kind” along with a non-exclusive list of illustrative examples
    that includes wells, tanks, reservoirs, pipes, lines, and all facilities used in connection with utilities.
    The term “Property” is defined in section 1.15 to include all of the lots that the parties stipulated
    were part of the East Avenue Subdivision.
    15
    4.04    Special Assessments. If the Board, at any time, or from time to time,
    determines that the regular assessment for any year is insufficient to provide
    for the performance of the functions of the Association, or to provide for
    timely payment of its bills, or for the operation, maintenance, repair, [or]
    replacement of the Common Area for which the Association is responsible,
    then the Board shall have the authority to levy such special assessments as it
    shall deem necessary to provide for the same. . . . .
    ....
    9.13.   Approvals. In each instance where any . . . assessment, . . . expenditure . . .
    or any other act is granted, withheld, exercised, established, made, imposed
    or otherwise taken by any of the Declarant, the Association, the Board and/or
    the Architectural Committee pursuant to this Declaration, such . . . shall
    serve to protect the value and desirability of the Property and the health,
    safety and welfare of the Owners, [and] shall be non-discriminatory and
    applied consistently to all Owners (including Declarant) . . . .
    Courts construe dedicatory instruments, like the Amended CCRs and the Bylaws, as
    any other contract. See, e.g., Marzo Club, LLC v. Columbia Lakes Homeowners Ass’n, 
    325 S.W.3d 791
    , 798 (Tex. App.—Houston [14th Dist.] 2010, no pet.); Mitchell v. LaFlamme, 
    60 S.W.3d 123
    ,
    128 (Tex. App.—Houston [14th Dist.] 2000, no pet.); Herbert v. Polly Ranch Homeowners Ass’n.,
    
    943 S.W.2d 906
    , 908 (Tex. App.—Houston [1st Dist.] 1996, no writ); see also Pilarcik v. Emmons,
    
    966 S.W.2d 474
    , 478 (Tex. 1998) (“[R]estrictive covenants are subject to the general rules of
    contract construction.”). A contract is unambiguous if, after appropriate rules of construction have
    been applied, the covenant can be given a definite or certain legal meaning. 
    Pilarcik, 966 S.W.2d at 478
    . The interpretation of an unambiguous contract is a question of law for the court. Moayedi
    v. Interstate 35/Chisam Rd., L.P., 
    438 S.W.3d 1
    , 7 (Tex. 2014).
    In construing a written contract, we seek the true intentions of the parties as expressed
    in the instrument. Balandran v. Safeco Ins. Co. of Am., 
    972 S.W.2d 738
    , 741 (Tex. 1998). We must
    16
    examine and consider the entire writing in an effort to harmonize and give effect to all the provisions
    of the contract so that none will be rendered meaningless. 
    Id. Moreover, unless
    the agreement
    shows the parties used a term in a technical or different sense, the terms bear their plain, ordinary,
    and generally accepted meanings. 
    Moayedi, 438 S.W.3d at 7
    .
    While parol evidence of the parties’ intent is not admissible to create an ambiguity,
    the contract may be read in light of the surrounding circumstances to determine whether an
    ambiguity exists. 
    Balandran, 972 S.W.2d at 741
    . If, in the light of surrounding circumstances, the
    language of the contract appears to be capable of only a single meaning, the court can then confine
    itself to the writing. Sun Oil Co. v. Madeley, 
    626 S.W.2d 726
    , 731 (Tex. 1981); see also Houston
    Exploration Co. v. Wellington Underwriting Agencies, Ltd., 
    352 S.W.3d 462
    , 469 n.25 (Tex. 2011).
    Consideration of the facts and circumstances surrounding the execution of a contract, however, is
    simply an aid in the construction of the contract’s language. Sun 
    Oil, 626 S.W.2d at 731
    . The rule
    that parol evidence is not admissible to create an ambiguity “‘obtains even to the extent of
    prohibiting proof of circumstances surrounding the transaction when the instrument involved, by its
    terms, plainly and clearly discloses the intention of the parties, or is so worded that it is not fairly
    susceptible of more than one legal meaning or construction.’” 
    Id. at 732
    (quoting Lewis v. East Tex.
    Fin. Co., 
    146 S.W.2d 977
    , 980 (1941)). Mere disagreement over the interpretation of an agreement
    does not necessarily render the contract ambiguous. See City of Pasadena v. Gennedy, 
    125 S.W.3d 687
    , 693 (Tex. App.—Houston [1st Dist.] 2003, pet. denied).
    Both parties contend the Amended CCRs are unambiguous and can be construed
    as a matter of law; however, their interpretations of the language differ significantly. Among other
    17
    arguments, UP Austin asserts, and the trial court agreed, that the POA has no authority under the
    Amended CCRs to make a special assessment for the purpose of building initial infrastructure
    because:
    C      In accordance with section 9.13, no assessment can be made unless it would “serve
    to protect the value and desirability of the Property,” and there is sufficient evidence
    that the intent, purpose, and effect of initial infrastructure is to increase property
    value. (Emphasis added.)
    C      In accordance with section 4.02, any assessment levied by the Association must be
    used exclusively for limited purposes, including “protection of the value and
    desirability of the Property” and “performance of the functions of the Association
    pursuant to the CCRs,” but (1) initial infrastructure creates value; (2) the term
    “functions,” given its plain meaning and used in context, refers to the POA’s duties,
    not its powers; and (3) the POA is empowered by the CCRs to do some new
    construction but may only make an assessment if such construction is in discharge
    of one of the POA’s duties under section 3.06 of the CCRs, none of which fairly
    includes construction of initial subdivision infrastructure within its scope.21
    Construing the Amended CCRs to limit the POA’s assessment authority to its duties
    is consistent with the Bylaws, which state that “the [POA] may only levy
    Assessments (regular or special) to defray costs which are incurred in furtherance of
    the duties of the Association [under law or the dedicatory instruments].” (Emphasis
    added.)
    C      Section 4.04, in relevant part, constrains the POA’s special-assessment authority to
    performance of the POA’s “functions” (which is limited to its duties not its powers);
    21
    The POA duties prescribed by section 3.06 of the Amended CCRs include: (1) operation and
    control of common areas, including improvements located in the common area; (2) repair and
    maintenance of the common area; (3) payment of all property taxes and other assessments levied on
    the common areas; (4) payment of all reasonable charges for utilities, maintenance, repair,
    landscaping, gardening, garbage removal, security, and other services used in connection with
    operation and maintenance of the common area; (5) levy and collect assessments to provide for the
    operation, maintenance, repair, replacement, preservation, and protection of the common area;
    (6) levy and collect assessments as necessary to perform the POA’s functions; (7) obtain and
    maintain policies of insurance adequate to carry out the POA’s functions; (8) removal and
    appointment of Architectural Committee members after expiration of the Declarant Control Period;
    (9) carry out and enforce the Declaration; and (10) keep records and books of the POA’s affairs.
    18
    paying bills (which is not implicated here); and “operation, maintenance, repair, [or]
    replacement of the Common Area” (terms which do not reasonably include new
    construction of initial subdivision infrastructure).
    C       Even if the POA has authority under sections 4.02 or 4.04 to levy an assessment for
    new construction under section 3.07(f), the construction must be “reasonably
    required” “to protect the value and desirability of the Property” and located “in the
    Common Area”; in the present case, the evidence sufficiently established that the
    special assessment was for initial infrastructure work, which enhances, rather than
    maintains, the value of the property.22
    C       UP Austin’s construction of the CCRs as not authorizing a special assessment for
    initial infrastructure is consistent with the circumstances existing when the document
    was created, at which point the obvious intent and plan for the development was
    for the original developer to construct the infrastructure, not the POA. The relevant
    provisions also were not changed when the Amended CCRs were adopted.
    22
    Section 1.06 of the Amended CCRs defines “Common Area,” which is distinguished from
    “Common Area Lots,” as:
    [A]ll ingress and egress easements, access easements, parking easements, drainage
    easements, water quality easements, landscaping easements, and public utility
    easements affecting any part of the Property, or referenced on the PUD, or conveyed
    to the Association by separate recorded instrument; together with all other
    Improvements of whatever kind and for whatever purpose which may be located in
    such areas, including, without limitation, stormwater detention ponds and water
    quality ponds serving the Property, common entryway Improvements, entryway signs
    and associated landscaping, irrigation systems for Common Area landscaping, any
    water wells on the Property, water recirculation machinery and systems associated
    with the Common Areas, and lighting systems associated with the Common Areas;
    and any other areas or Improvements for which the Association has duly accepted
    responsibility for operation and maintenance and which are intended for or devoted
    to the common use and enjoyment of the Owners.
    Although many of the special-assessment projects would be located outside the subdivision’s
    boundaries, the POA contends that the work is not unauthorized because the “Common Area”
    definition broadly encompasses offsite areas “affecting any part of the Property,” “referenced on the
    PUD,” “serving the Property,” and “associated with the Common Areas.” Our disposition of the
    case, however, obviates the need to address the POA’s construction of section 1.06, and we therefore
    express no opinion as to that matter.
    19
    Although the parties agree that the dedicatory instruments were not enacted with
    the intent that the POA complete the initial subdivision infrastructure, the POA argues that the
    Amended CCRs’ broad language grants it authority to make a special assessment for that purpose
    and that the Amended CCRs do not expressly prohibit it from doing so, as CCRs sometimes do. The
    POA’s contrary interpretation of the relevant provisions of the Amended CCRs includes that:
    (1) “functions” must refer to both powers and duties, otherwise the POA would not be able to pay
    for any of the powers it has been expressly granted, rendering those provisions meaningless;23 and
    (2) the POA has the power to construct new improvements in the common area and thus the
    discretion to determine which improvements to construct.24 In short, the POA contends that it is not
    a question of the POA’s authority to levy a special assessment for new construction, but rather a
    matter of the POA’s discretion as to how to exercise the authority it has been granted in determining
    what assessments and construction are reasonably required “to protect the value and desirability of
    the Property.” As to matters within the POA’s discretion, it is afforded a statutory presumption of
    reasonableness. See Tex. Prop. Code § 202.004(a) (“An exercise of discretionary authority by a
    23
    For example, in addition to authorizing the POA to construct new improvements in the common
    area, section 3.07 of the Amended CCRs empowers the POA to “retain and pay for” a person or firm
    to manage and operate the association, “retain and pay for” legal and accounting services, enter into
    contracts for some services, and obtain any and all types of permits and licenses.
    24
    The POA further argues as a source of its authority that the Amended CCRs broadly grant it “the
    powers of a Texas non-profit Corporation,” which by statute include the power to “acquire, receive,
    own, hold, improve, use, and deal in and with property or an interest in property,” “make contracts
    and guarantees,” and “take other action necessary or appropriate to further the purposes of the
    entity.” Tex. Bus. Orgs. Code § 2.101(3), (5), (22). The Amended CCRs, however, circumscribe
    what might otherwise be an expansive grant of authority by the limitations on the POA’s powers that
    are set forth in that document. Accordingly, the grant of authority the POA cites does not authorize
    it to circumvent the limitations in the Amended CCRs.
    20
    property owners’ association . . . concerning a restrictive covenant is presumed reasonable unless
    the court determines by a preponderance of the evidence that the exercise of discretionary authority
    was arbitrary, capricious, or discriminatory.”); see also Marmic Props., L.L.C. v. Silverglen Town-
    Homes Homeowners’ Ass’n, No. 14-12-00312-CV, 
    2013 WL 4680492
    , at *3 (Tex. App.—Houston
    [14th Dist.] Aug. 29, 2013, no pet.) (mem. op.) (statutory presumption applies to assessments).
    When such a presumption applies, the party opposing the discretionary act bears the burden
    of producing evidence to rebut the presumption. Marmic, 
    2013 WL 4680492
    , at *3. The POA
    intimates that if it has any authority to make an assessment, it has discretion to determine what
    activities fall within the scope of its assessment authority. The trial court concluded that the issue
    concerned proper construction of the dedicatory instruments, not the POA’s discretionary authority.
    We agree with the parties and the trial court that the relevant language of the
    Amended CCRs is unambiguous; thus we will construe it as a matter of law. When so construed,
    we conclude that the POA was not authorized to make a special assessment to construct the
    initial infrastructure under the plain language of the Amended CCRs. Because the CCRs expressly
    constrain the POA’s assessment authority, the threshold issue concerns the POA’s authority rather
    than the exercise of its discretion.
    Several terms pertinent to our construction of the CCRs are not specially defined.
    However, no special or technical meaning is evident from the document as a whole or from the
    circumstances surrounding its adoption; accordingly, we apply the plain meaning of the undefined
    terms. The trial court determined, and we agree, that construction designed and intended to create
    value and desirability does not meet the requirement that the construction be “reasonably required
    21
    to protect the value and desirability of the Property,” under the plain and ordinary meaning of the
    term “protect.” Accordingly, the POA has no discretion to assess for new construction that does not
    meet that express limitation on the POA’s authority.
    To this point, in addition to testimony from UP Austin’s witnesses, the POA’s
    corporate representative acknowledged that the purpose of initial subdivision infrastructure is to
    create rather than protect value, as that term is commonly understood and used in the Amended
    CCRs, and that the special-assessment projects were anticipated to enhance the property’s value.
    Although there was some evidence of a potential adverse impact on property value if the site plans
    expire, the trial court was not required to credit that evidence to the exclusion of contrary evidence.
    The POA appears to suggest that expiration of a site development plan (SDP) always
    equates to a loss of property value, and, thus, to avoid certain adverse impact on the property’s value,
    the POA was required to take action to prevent the SDP from expiring when negotiations among the
    property owners stalled. For that proposition, the POA chiefly relies on State v. Biggar, 
    873 S.W.2d 11
    (Tex. 1994), an inverse-condemnation case in which the Texas Supreme Court concluded that the
    State, with the objective of impairing a desired parcel’s value, had intentionally denied a routine
    easement exchange to thwart development of the property under an SDP that required the easement
    exchange. 
    Id. at 12-13.
    Biggar, however, does not support the broad proposition that expiration
    of an SDP necessarily reduces the value of property. In Biggar, it was undisputed that the SDP
    envisioned development of the entire tract; the tract could not be developed in the same way after
    the anticipated partial taking; the approved SDP itself therefore added value to the property because
    the taking would permanently alter what could be done with the property; and after the SDP expired
    22
    due to the State’s denial of the easement exchange, the land’s value decreased despite revival of the
    SDP because regulatory changes precluded the property from being developed to the same extent.
    
    Id. at 12-13
    & n.5. In Biggar, there was no path to completing the original SDP without the
    easement exchange; as a result, the land’s value decreased drastically when the original SDP expired
    and could not be resurrected to enable the same degree of development. 
    Id. Biggar essentially
    stands for the proposition that foreclosing the anticipated development caused an undisputed
    reduction in the value of the property. See 
    id. at 14
    (evidence established that State used its
    discretion to deny the easement “to preclude development in order to reduce the value of the tract”
    (emphasis added)).
    Biggar is distinguishable from the present case because there is no evidence here that
    expiration of the site plans would permanently impede development of the property. There is only
    evidence of time and cost increases to revive approval; the possibility of a permanent loss of site
    entitlements and grandfathering, the impact of which was speculative as to a loss in the property’s
    value; and a necessary adverse impact on property value if there were no clear path to re-entitling
    the property. This evidence neither conclusively establishes that completing initial subdivision
    infrastructure under University Park’s approved site plans served to “protect the value and
    desirability of the Property” nor negates evidence that the purpose, intent, effect, and expectation
    of constructing that infrastructure was to enhance the value of the property. See Dow Chem. Co.
    v. Francis, 
    46 S.W.3d 237
    , 241-42 (Tex. 2001) (articulating evidence-sufficiency standards).
    In sum, we conclude that (1) the Amended CCRs unambiguously limit the POA’s
    construction authority—and thus any related assessment authority—to activities reasonably required
    23
    to protect the value and desirability of the property, and (2) the record supports the trial court’s
    determination that the purpose of constructing initial subdivision infrastructure—generally and as
    expected in this case—is to create rather than protect the value and desirability of property.
    Accordingly, the trial court did not err in invalidating the special assessment on that basis. We
    therefore need not consider the trial court’s other factual and legal bases for invalidating the special
    assessment. See Tex. R. App. P. 47.1.
    B.       Minority Oppression
    The relief afforded in the judgment against the Owners is based on the trial court’s
    legal and factual determinations pertaining to UP Austin’s minority-oppression claim. The trial court
    held the Owners liable to UP Austin for minority oppression based on (1) the Owners’ approval of
    the POA’s special assessment, which the court found oppressive for a number of reasons, and (2) the
    Owner Declarant’s enactment of the second- and third- amended CCRs.25 Based on these findings,
    the trial court invalidated the second- and third-amended CCRs and entered a permanent injunction
    prohibiting further similar amendments. Having granted the foregoing relief, the court denied
    UP Austin’s request for appointment of a receiver for the POA under section 11.404 of the
    25
    The trial court found that
    [n]either the Second Amendment nor the Third Amendment serves to protect the
    value and desirability of University Park or the health, safety, and welfare of the
    property owners, and they are both oppressive to owners not affiliated with Cypress.
    In addition, the Second Amendment and Third Amendment are burdensome and
    harsh to UP Austin and other owners not affiliated with Cypress, they substantially
    defeat the objectively reasonable expectations that were central to UP Austin’s
    decision to acquire the property, and their implementation is contrary to good faith
    and fair dealing to the prejudice of UP Austin.
    24
    Texas Business Organizations Code as unnecessary. See Tex. Bus. Orgs. Code § 11.404(b)(3) (court
    may appoint receiver only if other available legal and equitable remedies are inadequate).
    In Ritchie v. Rupe, the Texas Supreme Court recently held that there is no
    common law cause of action for minority oppression in Texas and that the only remedy for
    oppressive conduct is appointment of a receiver under section 11.404, if the statutory requirements
    are satisfied. 
    443 S.W.3d 856
    , 887, 891 (Tex. 2014) (“We . . . decline to recognize a common-law
    cause of action for ‘shareholder oppression.’”); see also Cardiac Perfusion Servs., Inc. v. Hughes,
    
    436 S.W.3d 790
    , 791 (Tex. 2014) (observing that in Ritchie, the court had “declined to recognize
    a common-law cause of action for shareholder oppression and concluded that the only statutory
    remedy for ‘oppressive’ actions is a rehabilitative receivership”).
    UP Austin contends that we may not consider Ritchie’s impact on this case because
    the Owners waived any argument that minority oppression is not a valid common-law cause of
    action by failing to preserve that claim in this Court or the trial court. On appeal, the Owners have
    challenged (1) the legal- and factual-sufficiency of the evidence to support the minority-oppression
    findings and conclusions and (2) the sufficiency of UP Austin’s pleadings to support the relief
    afforded on the basis of that claim. “When the applicable law changes during the pendency of the
    appeal, the court of appeals must render its decision in light of the change in law.” Blair v. Fletcher,
    
    849 S.W.2d 344
    , 345 (Tex. 1993). To the extent that principle applies only to legal challenges that
    have properly been preserved, we conclude that the Owners’ legal-sufficiency challenges, which may
    be raised for the first time on appeal from a judgment following a non-jury trial, are adequate to
    preserve the argument that the trial court’s judgment against them was based on an invalid
    25
    legal theory. See Tex. R. App. P. 33.1(d) (“In a nonjury case, a complaint regarding legal or factual
    insufficiency of the evidence . . . may be made for the first time on appeal in the complaining party’s
    brief.”); Holland v. Wal-Mart Stores, Inc., 
    1 S.W.3d 91
    , 95 (Tex. 1999) (defendant sufficiently
    preserved argument that attorney’s fees were not available under applicable statute by asserting
    nonrecovery in motion for j.n.o.v. because such method is appropriate to preserve legal-sufficiency
    challenges and claim of nonrecoverability was analogous to legal-sufficiency challenge for error-
    preservation purposes); Martinez v. English, 
    267 S.W.3d 521
    , 550 n.6 (Tex. App.—Austin 2008,
    pet. denied) (no-evidence challenge preserved argument that cause of action was unavailable as
    matter of law).
    Applying Ritchie, we reverse the trial court’s judgment against the Owners, which
    is based on an invalid legal theory, and render judgment that the Owners are not liable for minority
    oppression as alleged.26 We therefore vacate the permanent injunction and the portion of the
    judgment nullifying the second- and third-amended CCRs. We remand to the trial court UP Austin’s
    claim for appointment of a receiver for the POA, which was denied based on the availability of the
    preceding remedies.27
    26
    Because minority oppression does not support the relief the trial court awarded as a matter of law,
    the court’s related findings of fact are immaterial. We therefore do not reach the Owners’ challenges
    to the legal- and factual-sufficiency of the evidence to support those findings.
    27
    We decline UP Austin’s request that we exercise our discretion to remand “in the interest of
    justice” for it to pursue unspecified alternative claims against the Owners in light of Ritchie’s
    change in the law. See Cardiac Perfusion Servs., Inc. v. Hughes, 
    436 S.W.3d 790
    , 792 (Tex. 2014)
    (remanding for opportunity to pursue derivative action for breach of fiduciary duties). UP Austin
    has not identified any potentially applicable alternative claims nor explained why it was foreclosed
    from bringing any such claims by the presumed availability of relief under a minority-oppression
    theory. The interests of justice are not served by a remand for an unspecified second bite at the
    apple.
    26
    C.     Unjust Enrichment
    Although supporting the POA’s authority to levy the special assessment, the
    Owners filed a cross-claim against the POA under various theories seeking reimbursement of their
    assessment payments in the event the assessment were held to be invalid. The POA did not
    answer or contest the restitution claim. The trial court, however, generally denied the cross-claim
    as “collusive in that it impermissibly realigns the [Owners] with UP Austin against, in essence
    themselves (the Cypress-controlled POA).” The Owners appeal only the denial of their unjust-
    enrichment theory of restitution, which the trial court denied on the basis that they “failed to show
    that the POA ‘wrongfully secured a benefit or . . . passively received one which it would be
    unconscionable for [it] to retain.’” (Alteration in original.)
    “Unjust enrichment is not an independent cause of action; however, an action
    for restitution based on unjust enrichment will lie ‘to recover money received on a consideration
    that has failed in whole or in part.’” Oxford Fin. Cos., Inc. v. Velez, 
    807 S.W.2d 460
    , 465
    (Tex. App.—Austin 1991, writ denied). A party seeking restitution “must show not only that the
    party from whom he is seeking restitution was unjustly enriched, but also that that party ‘had
    wrongfully secured a benefit or had passively received one which it would be unconscionable for
    him to retain.’” 
    Id. Importantly, “a
    party’s right to recover under a theory of unjust enrichment does
    not depend on the other party’s commission of a wrongful act.” 
    Id. Because a
    wrongful act is not required for restitution, the Owners merely had the
    burden to establish that (1) they paid money to the POA, (2) the purpose of the payment failed in
    27
    whole or part, and (3) it would be unconscionable for the POA to retain the money.28 See 
    id. It is
    undisputed that the Owners paid the amounts levied on their property for the special assessment and
    that the Owner Declarant also paid the portion of the special assessment allocated to the townhome
    owners. The trial court found that the POA lacked the authority to make a special assessment to
    complete initial subdivision infrastructure and that the assessment was therefore void ab initio. We
    have now affirmed that holding. The only issue, therefore, is whether it would be “unconscionable”
    for the POA to retain funds paid for an assessment that has been void since its inception.
    We conclude that, as a matter of law, it would be unconscionable for the POA to
    retain the Owners’ special-assessment payments, which were not only levied without legal authority
    but which were also made to secure work that the POA is unable to complete as a matter of law and
    fact. Although UP Austin contends that allowing the Owners to obtain restitution of an assessment
    they implemented with their votes and “control” over the POA would permit the Owners to hedge
    their bets and “to abuse the trial process,” there is nothing inconsistent about the Owners’
    complementary legal positions that the POA had authority under the Amended CCRs to make
    28
    The voluntary-payment rule, which is an affirmative defense to a restitution claim for unjust
    enrichment, was not asserted in a responsive pleading by any party or addressed by any party, except
    by UP Austin in response to the Owners’ motion for judgment. The defense, to the extent otherwise
    applicable, is therefore waived. See Berryman’s South Fork, Inc. v. J. Baxter Brinkmann Int’l Corp.,
    
    418 S.W.3d 172
    , 188-89 (Tex. App.—Dallas 2013, pet. denied) (affirming summary judgment
    on claim for money had and received where voluntary-payment rule was not asserted as defense
    nor addressed in summary-judgment response). Under the voluntary-payment rule, “‘[m]oney
    voluntarily paid on a claim of right, with full knowledge of all the facts, in the absence of fraud
    deception, duress, or compulsion, cannot be recovered back merely because the party at the time of
    payment was ignorant of or mistook the law as to his liability.’” BMG Direct Mktg., Inc. v. Peake,
    
    178 S.W.3d 763
    , 768 (Tex. 2005) (quoting Pennell v. United Ins. Co., 
    243 S.W.2d 572
    , 576
    (Tex. 1951)). The voluntary-payment rule does not bar restitution based on mutual mistake of fact.
    See 
    id. 28 the
    special assessment, but if it did not, the Owners’ had no obligation to pay it, especially when
    the expectation of its purpose has failed in its entirety. Accordingly, we reverse the trial court’s
    judgment denying the Owners’ unjust-enrichment cross-claim and render judgment awarding the
    Owners restitution of the sums they paid pursuant to the void special assessment.
    D.      Attorney’s Fees
    The remaining issues on appeal, broadly stated are: (1) whether UP Austin is entitled
    to recover its prejudgment attorney’s fees and expenses from the POA and the Owners as a
    matter of law; (2) whether UP Austin sufficiently segregated and otherwise established that the
    amount of fees it requested was reasonable; (3) whether the Owners are entitled to recover their
    attorney’s fees from UP Austin as a matter of law; and (4) whether the judgment awarding
    conditional post-judgment and appellate attorney’s fees to UP Austin is defective in failing to clearly
    identify the parties liable for those fees.29
    The trial court concluded that UP Austin was the prevailing party on the threshold
    declaratory-judgment claim, that the POA was not the prevailing party on that claim, and that the
    Owners were not the prevailing party on that claim because they approved the special assessment
    through their control of the POA. Based on the latter two findings, the trial court denied the POA’s
    and the Owners’ counterclaims for attorney’s fees. The trial court also denied UP Austin’s claim
    to recover prejudgment attorney’s fees on the basis that (1) UP Austin prevailed on some of its
    claims against the POA and the Owners, but not others; (2) not all of the claims authorized an award
    29
    The POA also appealed the denial of its claim for attorney’s fees, but effectively concedes that
    it cannot recover on that claim if we conclude, as we have, that the special assessment is void.
    29
    of attorney’s fees; (3) UP Austin’s prejudgment attorney’s fees could be segregated because not all
    legal tasks on each claim were inextricably intertwined; (4) UP Austin willfully failed to segregate
    attorney’s fees despite numerous requests and opportunities to do so; and (5) UP Austin failed
    to present competent evidence that its attorney’s fees were reasonable and necessary. Although
    declining to award prejudgment attorney’s fees, the trial court did award UP Austin conditional post-
    judgment and appellate attorney’s fees. The parties are uniformly dissatisfied with the disposition
    of the claims for attorney’s fees. We address their arguments in turn.
    UP Austin challenges the trial court’s denial of its claim for prejudgment attorney’s
    fees and opposes the Owners’ and the POA’s counterclaims for their attorney’s fees, contending
    it was the “prevailing party” on the “main issue” in the case, which was to invalidate the POA’s
    special assessment. See Old HH, Ltd. v. Henderson, 03-10-00129-CV, 
    2011 WL 6118570
    , at *3
    (Tex. App.—Austin Dec. 9, 2011, no pet.) (mem. op.) (“prevailing party” refers to “‘the party who
    successfully prosecutes the action or defends against it, prevailing on the main issue, even though
    not to the extent of its original contention’” (quoting Johns v. Ram Forwarding, Inc., 
    29 S.W.3d 635
    ,
    637-38 (Tex. App.—Houston [1st Dist.] 2000, no pet.))). UP Austin asserts that, as a matter of law,
    it is entitled to recover more than $1.7 million in prejudgment attorney’s fees and $37,606.56 in
    expenses and was not required to segregate its fees among parties and claims as long as it prevailed
    on the “main issue” in the litigation. In essence, UP Austin aggregates all of its attorney’s fees under
    the umbrella of its claim against the POA to invalidate the special assessment and asserts that
    30
    segregation is not required as to any other claim or party.30 In the alternative, if segregation was
    required, UP Austin contends that the appropriate remedy is not the denial of all fees but remand to
    the trial court for segregation. UP Austin also challenges the zero attorney-fee award on evidence-
    sufficiency grounds.
    Texas law prohibits recovery of attorney’s fees unless authorized by statute or
    contract. Tony Gullo Motors I, L.P. v. Chapa, 
    212 S.W.3d 299
    , 310 (Tex. 2006). Even when
    attorney’s fees are recoverable, the general rule is that a party seeking to recover attorney’s fees in
    a suit involving multiple claims or parties has a duty to segregate recoverable and unrecoverable fees.
    Stewart Title Guar. Co. v. Sterling, 
    822 S.W.2d 1
    , 10-11 (Tex. 1991); see also Varner v. Cardenas,
    
    218 S.W.3d 68
    , 69 (Tex. 2007) (“[A] prevailing party must segregate recoverable from
    unrecoverable attorney’s fees in all cases.”); Tony 
    Gullo, 212 S.W.3d at 313
    (reaffirming “the
    rule that if any attorney’s fees relate solely to a claim for which such fees are unrecoverable, a
    claimant must segregate recoverable from unrecoverable fees”). A recognized exception to the duty
    to segregate arises when discrete legal services advance both a recoverable and unrecoverable claim
    and thus are so intertwined that they need not be segregated.31 Tony 
    Gullo, 212 S.W.3d at 313
    .
    30
    UP Austin does not contend that its attorney’s fees could not be segregated; it asserts only that
    it was under no obligation to do so because all of the claims were related to the special-assessment
    issue, which arose under the Amended CCRs.
    31
    Fees incurred to prosecute or defend claims for which attorney’s fees are otherwise unrecoverable
    may nevertheless be recovered if prosecution or defense of those claims was necessary for the party
    to prevail on a claim for which attorney’s fees are authorized. See Varner v. Cardenas, 
    218 S.W.3d 68
    , 69 (Tex. 2007). This exception is not implicated in the circumstances presented.
    31
    In the present case, both statutory and contractual provisions are at issue:
    section 5.006 of the Texas Property Code and section 9.01 of the Amended CCRs.32 The Owners
    contend, however, that neither provision authorizes UP Austin’s recovery of attorney’s fees from
    them because (1) UP Austin did not recover on any claim against them that qualifies under either
    provision, and (2) given the reversal of the relief that had been awarded against them under a
    minority-oppression theory, UP Austin did not prevail on any claim against them at all.
    Section 5.006(a) of the Texas Property Code provides that “[i]n an action based on
    breach of a restrictive covenant pertaining to real property, the court shall allow a prevailing
    party who asserted the action reasonable attorney’s fees in addition to the party’s costs and claim.”
    Tex. Prop. Code § 5.006. An award under section 5.006 is mandatory for a qualifying claim, but the
    amount awarded must be reasonable. Gorman v. Countrywood Prop. Owners Ass’n, 
    1 S.W.3d 91
    5, 918 (Tex. App.—Beaumont 1999, pet. denied). UP Austin contends that it is not required to
    segregate its fees because section 5.006 applies to the entire “action” that is “based on” breach of
    a restrictive covenant, regardless of whether a party prevails on all the claims or whether all of the
    claims actually involve breach of a restrictive covenant. In UP Austin’s view of section 5.006(a),
    all that is required for it to recover 100% of its attorney’s fees for the prosecution of all claims
    32
    The Texas Declaratory Judgments Act also authorizes an award of attorney’s fees, but the
    trial court has discretion under that statute to determine whether it is “equitable and just” to award
    such fees. Tex. Civ. Prac. & Rem. Code § 37.009 (“In any proceeding under this chapter, the court
    may award costs and reasonable and necessary attorney’s fees as are equitable and just.”); Bocquet
    v. Herring, 
    972 S.W.2d 19
    , 20 (Tex. 1998) (declaratory judgment statute does not require award
    of attorney’s fee and thus affords trial court discretion in making award). Here, the trial court
    determined that it was “equitable and just for each party to bear its own attorney’s fees in the
    trial court,” and the parties do not challenge this determination.
    32
    against all parties is the assertion of and recovery on any qualifying claim, as long as that claim was
    the “main issue” of the litigation.
    Section 9.01 of the Amended CCRs also includes an attorney’s fee provision, which
    provides, in relevant part:
    Declarant, the Association, or any Owner shall have the right to enforce, by
    proceeding, at law or in equity, for damages or for injunction or both, all restrictions,
    covenants, conditions, rights and duties imposed, allowed or granted by the
    provisions of this Declaration. In any such proceeding, the prevailing parties shall
    be entitled to recover costs and expenses, including reasonable attorney’s fees.
    (Emphasis added.) As worded, section 9.01 is not discretionary as to an award of attorney’s fees for
    a qualifying claim, but is likewise subject to a reasonableness limitation. Cf. Bocquet v. Herring,
    
    972 S.W.2d 19
    , 20 (Tex. 1998) (“Statutes providing that a party ‘may recover’, ‘shall be awarded’,
    or ‘is entitled to’ attorney fees are not discretionary.”). UP Austin similarly contends that it is under
    no obligation to segregate attorney’s fees because section 9.01 provides for mandatory attorney’s fees
    for an entire lawsuit (“proceeding”) if it involves a claim “to enforce” any provision in the Amended
    CCRs. Because UP Austin successfully challenged the special assessment, it contends that it is the
    prevailing party on the main issue in the case, and as such, it can recover all of its attorney’s fees
    without segregation—even as to fees incurred to prosecute claims on which it did not prevail and
    on claims that do not require the same elements, research, discovery, proof, or legal expertise as a
    claim to enforce the Amended CCRs.
    Whether the claims at issue fall within the meaning of the applicable statutory and
    contract provisions and whether attorney’s fees must be segregated are questions of law. See, e.g.,
    33
    
    Moayedi, 438 S.W.3d at 7
    (interpretation of unambiguous contract is question of law); Jaster
    v. Comet II Constr., Inc., 
    438 S.W.3d 556
    , 562 (Tex. 2014) (statutory construction is question of
    law); Tony 
    Gullo, 212 S.W.3d at 312
    (need to segregate attorney’s fees is question of law). The
    extent to which certain claims and fees are capable of being segregated is a mixed question of
    law and fact. Tony 
    Gullo, 212 S.W.3d at 312
    . In comparison, the reasonableness of attorney’s fees
    is a question of fact. 
    Bocquet, 972 S.W.2d at 20
    . Thus, although the granting of attorney’s fees
    is mandatory upon a showing of entitlement, the amount of such fees is within the trial court’s
    discretion. We will not disturb a trial court’s award of attorney’s fees absent an abuse of discretion.
    See, e.g., Roth v. JPMorgan Chase Bank, N.A., 
    439 S.W.3d 508
    , 514 (Tex. App.—El Paso 2014,
    no pet.).
    As an initial matter, we do not agree that either section 5.006 or section 9.01 can be
    read to suggest that a party can recover attorney’s fees on any claim against any party merely because
    it is asserted in an action or proceeding in which enforcement of a restrictive covenant is at issue.
    When interpreting a contractual or statutory attorney’s fee provision in which the “prevailing
    party” term is left undefined, as is the case here, we presume the term bears its ordinary meaning.
    Intercontinental Grp. P’ship v. KB Home Lone Star L.P., 
    295 S.W.3d 650
    , 653 (Tex. 2009). In that
    regard,
    [t]o qualify as a prevailing party, a . . . plaintiff must obtain at least some relief on the
    merits of his claim. The plaintiff must obtain an enforceable judgment against the
    defendant from whom fees are sought, or comparable relief through a consent decree
    or settlement. Whatever relief the plaintiff secures must directly benefit him at the
    time of the judgment or settlement. Otherwise the judgment or settlement cannot
    be said to affect the behavior of the defendant toward the plaintiff. . . . In short, a
    plaintiff “prevails” when actual relief on the merits of his claim materially alters the
    34
    legal relationship between the parties by modifying the defendant’s behavior in a
    way that directly benefits the plaintiff.
    
    Id. at 654
    (quoting Farrar v. Hobby, 
    506 U.S. 103
    , 111-12 (1992) (internal citations omitted)
    (emphases added)). “[T]he plaintiff is required to prove the fees that were incurred against the
    particular defendant sought to be charged with said fees.” Koch Oil Co. v. Wilber, 
    895 S.W.2d 854
    ,
    867 (Tex. App.—Beaumont 1995, writ denied). This is required to ensure that the parties from
    whom attorney’s fees are sought are not charged fees for which they are not responsible. See
    
    Sterling, 822 S.W.2d at 10-11
    . To hold otherwise would contravene the general rule that attorney’s
    fees are not available unless authorized by statute or contract.
    Aggregating claims against multiple parties does not transform claims for which
    attorney’s fees would otherwise be unrecoverable into claims for recoverable fees by their mere
    association with a claim for which attorney’s fees are authorized. Identifying the “main issue”
    may help identify a “prevailing party”—i.e., who can recover attorney’s fees—but when recovery
    against multiple parties and on multiple claims is a mixed bag, the prevailing party remains
    obligated to segregate fees associated with claims and parties for which attorney’s fees are not
    authorized—i.e., what fees can be recovered remains an issue. The “in for a penny, in for a pound”
    standard UP Austin advocates is fundamentally at odds with well-established fee-shifting limitations
    and fee-segregation principles. See Tony 
    Gullo, 212 S.W.3d at 313
    (eliminating exception for
    attorney’s fees incurred solely on separate but arguably intertwined claims; mere commonality
    of underlying facts does not necessarily make all claims arising therefrom “inseparable” and all
    legal fees recoverable); DMC Valley Ranch, L.L.C. v. HPSC, Inc., 
    315 S.W.3d 898
    , 906
    35
    (Tex. App.—Dallas 2010, no pet.) (“‘A party seeking attorney fees has a duty to segregate
    nonrecoverable fees from recoverable fees, and to segregate the fees owed by different parties.”
    (emphasis in original) (quoting Fench v. Moore, 
    169 S.W.3d 1
    , 17 (Tex. App.—Houston [1st Dist.]
    2004, no pet.)). Unless otherwise nonrecoverable claims are necessary to obtain all relief on a
    covered claim, which is not the case here, a prevailing party must segregate recoverable from
    unrecoverable attorney’s fees “in all cases.” 
    Varner, 218 S.W.3d at 69
    (affirming denial of attorney
    fees incurred to pursue related claims against third party, but concluding that attorney’s fees for
    defending counterclaim need not be segregated because plaintiffs were required to successfully
    defend that claim to fully recover on claim for which attorney’s fees were authorized).
    To the extent UP Austin relies on the breadth of the terms “an action” and “based on”
    that are used in section 5.006, an award of attorney’s fees must be provided by the express terms of
    the statute in question and may not be supplied by implication. See Holland v. Wal–Mart Stores,
    Inc., 
    1 S.W.3d 91
    , 95 (Tex.1999); cf. Owens v. Ousey, 
    241 S.W.3d 124
    , 134 (Tex. App.—Austin
    2007, pet. denied) (requiring segregation of fees when plaintiff prevailed on one claim under
    section 5.006 but not on other claim under same statute); Freedman v. Briarcroft Prop. Owners, Inc.,
    
    776 S.W.2d 212
    , 218 (Tex. App.—Houston [14th Dist.] 1989, writ denied) (party who brought
    action under section 5.006 for breach of deed restrictions, but did not prevail on that claim, could
    not recover attorney’s fees for successful prosecution of related nuisance claim because that claim
    was not based in whole or in part on breach of restrictive covenant); cf. also Radney v. Clear Lake
    Forest Cmty. Ass’n, 
    681 S.W.2d 191
    , 199 (Tex. App.—Houston [14th Dist.] 1984, writ ref’d n.r.e.)
    (allowing recovery of attorney’s fees on fraudulent conveyance claim because “in order to obtain
    36
    the complete relief to which they were entitled because of the breach [of the restrictive covenant],
    it was necessary for appellees to have the fraudulent conveyance voided”). The same principle,
    although not strictly applicable to contracts, informs our reading of the Amended CCRs. It is
    unreasonable to construe section 9.01 to reach beyond its context to authorize fees that merely bear
    some relationship to the stated purpose of the provision. Cf. MRO Sw., Inc. v. Target Corp., No. 04-
    07-00078-CV, 
    2007 WL 4403912
    , at *2-3 (Tex. App.—San Antonio Dec. 19, 2007, pet. denied)
    (mem. op.) (plaintiff not entitled to recover attorney’s fees under contract provision authorizing party
    prevailing in “any legal action or proceeding to enforce any terms of this Agreement [or damages
    for its alleged breach]”; plaintiff prevailed on one claim that did not meet requirements for recovery
    and failed to prevail on only claim that did). Both section 5.006 and section 9.01 provide narrow
    exceptions to the rule prohibiting attorney-fee shifting and do not authorize a recovery for claims that
    do not meet their terms even if those claims are asserted in the same action or proceeding as ones
    that could or do.
    UP Austin clearly prevailed on its claim against the POA and obtained a declaration
    that the special assessment was not authorized under the Amended CCRs, and an award of attorney’s
    fees is mandatory for that claim under section 5.006 of the Property Code and section 9.01 of the
    Amended CCRs. UP Austin was nevertheless required to segregate its fees and expenses because
    (1) some attorney’s fees were incurred analyzing theories and claims that were not applicable to any
    defendant and others were not applicable to all of the defendants; (2) the claims asserted against the
    defendants varied; (3) UP Austin did not prevail on all the claims asserted; (4) neither section 5.006
    nor section 9.01 authorizes attorney’s fees for all of the claims on which UP Austin prevailed;
    37
    and (5) the trial court’s determination that the fees on the disparate claims could be segregated
    is unchallenged. UP Austin failed to segregate, however, even after the trial court repeatedly
    admonished it that the foregoing circumstances were likely impediments to a full fee award.33
    However willful and ill-considered the refusal to segregate was, the remedy for such
    failure is not an award of zero attorney’s fees, because evidence of unsegregated attorney’s fees for
    the entire case is some evidence of what the segregated amount should be. Tony 
    Gullo, 212 S.W.3d at 314
    . Accordingly, the supreme court has held that the appropriate remedy for failure or refusal
    to segregate attorney’s fees is remand for segregation.34 See, e.g., id.; 
    Sterling, 822 S.W.2d at 11-12
    (concluding that remand is appropriate “[i]f a party refuses, over objection, to offer evidence
    segregating attorney’s fees among various claims or parties, and an appellate court determines that
    segregation was required”); see also DaimlerChrysler Motors Co., LLC v. Manuel, 
    362 S.W.3d 160
    ,
    197-98 (Tex. App.—Fort Worth 2012, no pet.) (reversing zero attorney’s fee award after bench trial
    based on failure to segregate and remanding for evidence of segregated amount of reasonable and
    necessary attorney’s fees); compare Dilston House Condo. Ass’n v. White, 
    230 S.W.3d 714
    , 718
    33
    At trial, UP Austin’s counsel explained that no effort had been made to segregate as to individual
    claims and causes of action “because in the end, everything related to the CCRs” and the owner
    defendants had all voted for the special assessment, which was the subject of UP Austin’s claim
    against the POA under the Amended CCRs. Although the Owner Declarant had enough votes to
    pass the special assessment without CAA’s or Hospitality’s votes, UP Austin’s counsel explained
    that their litigation positions were essentially the same as the Owner Declarant’s and, as a result,
    there were no segregable expenses attributable to only those entities.
    34
    The total denial of attorney’s fees appears more in the nature of a sanction. No issue concerning
    the propriety of sanctions is properly presented on appeal; accordingly, we express no opinion as to
    whether willful refusal to segregate attorney’s fees would be sanctionable conduct.
    38
    (Tex. App—Houston [14th Dist.] 2007, no pet.) (affirming total denial of attorney’s fees due to
    complete absence of evidence regarding attorney’s fees incurred).
    In addition to complaining about the lack of segregation between recoverable and
    unrecoverable fees and expenses, the POA and the Owners objected that UP Austin’s attorney-fee
    rates and attorney staffing were unreasonable and excessive. The trial court agreed and found that
    UP Austin
    failed to present competent evidence that the hourly rates charged by their attorneys
    in this matter were reasonable for lawyers in Travis County given the nature of
    the case. [UP Austin’s] counsel testified that a committee at his firm set the rates,
    but did not present testimony concerning prevailing rates for similar work in
    Travis County or testimony that the rates set by the committee were reasonable in
    comparison to rates charged by other counsel with similar skill and experience for
    similar work in Travis County.
    The record supports this finding. There is also evidence that UP Austin’s attorney’s fees and
    expenses were more than twice the fees for the POA’s and the Owners’ attorneys and that the rates
    UP Austin’s counsel charged and the case staffing were excessive for similar cases being prosecuted
    in Travis County, Texas.
    Even so, the trial court’s finding does not support an attorney’s fee award of zero.
    Although the trial court could have rationally concluded that reasonable attorney’s fees and expenses
    were less than the $1.8 million UP Austin seeks, “an award of no fees was improper in the absence
    of evidence affirmatively showing that no attorney’s services were needed or that any services
    provided were of no value.” Midland W. Bldg. L.L.C. v. First Serv. Air Conditioning Contractors,
    Inc., 
    300 S.W.3d 738
    , 740 (Tex. 2009). Because there is no evidence to support an award of zero
    39
    attorney’s fees and some evidence that fees were incurred, we remand the case to the trial court to
    determine a reasonable amount of fees.35 
    Id. On remand,
    the trial court must also determine whether UP Austin prevailed on
    claims against the Owners for which attorney’s fees are recoverable. The Owners contend there are
    none and that they should be awarded their attorney’s fees in the amount of $358,472.33 as a matter
    of law under section 9.01.36 UP Austin asserts that it remains a prevailing party with respect to the
    Owners because it obtained comparable relief by virtue of a Rule 11 agreement that was substantially
    completed before the trial court ruled that it could not be enforced by specific performance. A
    plaintiff may be considered the prevailing party if it has secured a direct benefit by virtue of
    a settlement that modified the defendant’s behavior in a way that directly benefits the plaintiff.
    KB 
    Home, 295 S.W.3d at 654
    . The trial court here did not pass on this argument. The trial court’s
    finding that the Rule 11 agreement was not enforceable by specific performance and was conditioned
    on a reservation of the right to seek reimbursement after performance is not dispositive of whether
    UP Austin secured a benefit at the time of the agreement. Due to this outstanding issue, which
    potentially impacts the prevailing-party analysis, and in light of our disposition of UP Austin’s
    minority-oppression claim, we believe it is prudent to remand to the trial court for a prevailing-party
    35
    On remand, the trial court is free to consider the POA’s argument that a zero fee award is
    appropriate in light of evidence that UP Austin sued after refusing to engage in meaningful pre-suit
    negotiations. The trial court issued no findings of fact and conclusions of law as to this contention,
    and none can be presumed.
    36
    Section 5.006 authorizes an award of attorney’s fees only to the prevailing party “who asserted
    the action” for breach of a restrictive covenant pertaining to real property, not one who prevailed in
    defense of such an action. See Tex. Prop. Code § 5.006.
    40
    determination as to UP Austin’s claims against the Owners under the applicable attorney’s fee
    provisions as we have construed them.
    The sole remaining challenge to the trial court’s judgment concerns the award of
    conditional post-judgment and appellate attorney’s fees, which the POA contends is invalid because
    the judgment lacks sufficient specificity as to which parties are liable for those fees. We agree.
    We cannot affirm the award of appellate attorney’s fees because that portion of the
    judgment fails to identify what party (or parties) the fees are awarded against.37 The Texas Rules of
    Civil Procedure require that “the entry of the judgment shall contain the full names of the parties . . .
    for and against whom the judgment is rendered.” Tex. R. Civ. P. 306 (emphasis added); see City of
    Austin v. Castillo, 
    25 S.W.3d 309
    , 314-15 (Tex. App.—Austin 2000, pet. denied) (trial court’s
    judgment defective because it failed to dispose of named plaintiff’s claim and awarded relief to one
    not named as plaintiff). In light of multiple trial-court findings to the effect that the POA and the
    Owners were under common control and acted together to improperly levy the special assessment,
    37
    The judgment states:
    UP Austin shall recover the following conditional awards of attorneys’ fees:
    (a) $15,000.00 for any post-judgment motion or request for findings of fact and
    conclusions of law filed by a defendant; (b) $90,000.00 if any defendant files a notice
    of appeal and does not prevail in such appeal; (c) $25,000.00 if any defendant files
    a petition for review in the Supreme Court of Texas and the Court dismisses or
    denies the petition without requesting briefs on the merits; (d) $30,000.00 if the
    Supreme Court of Texas requests merits briefs and the petitioning defendant does not
    prevail in such further appeal; and (e) $15,000.00 if the Supreme Court grants the
    petition for review and hears oral argument, and the petitioning defendant does not
    prevail in such further appeal.
    The judgment does not differentiate among the individual parties with regard to liability for the
    attorney’s fees conditionally awarded or expressly impose joint and several liability for the award.
    41
    we might infer that the trial court intended to impose joint and several liability for attorney’s fees
    against them. However, there are several reasons why it would be inappropriate to construe the
    judgment in that way. First, the judgment expressly imposes joint and several liability against the
    POA and the Owners for UP Austin’s costs of court. The absence of similar language with regard
    to the attorney-fee award suggests that the trial court did not intend to impose joint and several
    liability for post-judgment and appellate attorney’s fees. Second, it is error to award appellate
    attorney’s fees jointly and severally against multiple parties even if only one of them pursues an
    unsuccessful appeal. Zurita v. SVH-1 Partners, Ltd., No. 03-10-00650-CV, 
    2011 WL 6118573
    ,
    at *10 (Tex. App.—Austin Dec. 8, 2011, pet. denied) (mem. op.).
    Ultimately, however, we cannot ascertain with any degree of certainty against
    whom the award was intended aside from pure speculation. Cf. Ex parte Acker, 
    949 S.W.2d 314
    ,
    317 (Tex. 1997) (holding that “decree must set forth the obligation in clear, specific and
    unambiguous terms”). UP Austin asserts that the award for post-judgment and appellate attorney’s
    fees is conditioned on which party appeals and the result of that appeal; thus, the judgment need
    not have listed which party would be responsible for attorney’s fees in which instance. We do not
    agree that the judgment can be so clearly construed. The judgment may reasonably be construed as
    imposing joint and several liability for the amounts stated or, under UP Austin’s construction, the
    amounts stated multiplied by the number of parties appealing. Furthermore, the transcript of the
    hearing on attorney’s fees suggests that the possible intent was to treat CAA, Hospitality, and the
    Owner Declarant collectively, but separately from the POA for purposes of liability for the amounts
    stated in the judgment, which would also be consistent with the trial court’s findings. Because there
    42
    are a number of ways the judgment could be construed, the judgment lacks the specificity required
    for enforcement. Accordingly, it is necessary to remand for clarification of the judgment. Even if
    the trial court intended to impose joint and several liability or we could presume the same, we
    conclude that our disposition of the minority-oppression issue, the related remand for reconsideration
    of UP Austin’s receivership request, and residual issues impacting the prevailing-party analysis
    support reversing the award of post-judgment and appellate attorney’s fees and remanding that
    matter to the trial court for clarification.
    CONCLUSION
    We conclude that the POA did not have authority under its dedicatory instruments
    to levy a special assessment to pay for initial infrastructure; accordingly, we affirm that portion of
    the trial court’s judgment as well as the portion denying the POA’s counterclaims for payment of the
    special assessment and recovery of attorney’s fees. We further hold that the Owners cannot be held
    liable for minority oppression on the bases found by the trial court and, therefore, reverse the
    trial court’s judgment invalidating the second- and third-amended CCRs and enjoining the Owner
    Declarant from amending the CCRs in the same manner in the future; we render judgment that
    UP Austin take nothing on its minority-oppression claim. We likewise reverse the trial court’s
    judgment denying the Owners’ unjust-enrichment claims and render judgment that the POA shall
    refund the amounts the Owners paid pursuant to the invalid assessment as follows: $515,792 to the
    Owner Declarant; $291,972 to CAA; and $279,701 to Hospitality, plus interest from the date of our
    judgment. We further reverse and remand to the trial court (1) UP Austin’s request for appointment
    43
    of a receiver under section 11.404, (2) UP Austin’s and the Owners’ claims for attorney’s fees, and
    (3) the award of conditional post-judgment and appellate attorney’s fees to UP Austin.
    ____________________________________________
    J. Woodfin Jones, Chief Justice
    Before Chief Justice Jones, Justices Pemberton and Rose
    Affirmed in part; Reversed and Rendered in part; Reversed and Remanded in part
    Filed: December 8, 2014
    44