Mills v. Rupp

• Court: Texas Court of Appeals
• Writing for the Court: CLARISSA SILVA, JUSTICE
• Docket Number: 13-24-00074-CV
• Decision Date: 15 January 2026
• Citation: Mills v. Rupp, 13-24-00074-CV (Tex. App. Jan 15, 2026)
• Parties: ZACHARY K. MILLS, ROBIN MILLS, AND EDGEGROVE HOMES, LLC, Appellants, v. DEBORAH RUPP AND EDWARD RUPP, Appellees.

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ZACHARY K. MILLS, ROBIN MILLS, AND EDGEGROVE HOMES, LLC, Appellants, v. DEBORAH RUPP AND EDWARD RUPP, Appellees.

No. 13-24-00074-CV

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

January 15, 2026

ON APPEAL FROM THE 200TH DISTRICT COURT OF TRAVIS COUNTY, TEXAS

Before Justices Silva, Cron, and Fonseca

MEMORANDUM OPINION

CLARISSA SILVA, JUSTICE

Appellants Zachary K. Mills, Robin Mills, and Edgegrove Homes, LLC (Edgegrove) (collectively the Millses) appeal the trial court's judgment awarding equitable relief, damages, and attorney's fees to appellees Deborah Rupp and Edward Rupp. The Millses argue by three issues that the Rupps' request for equitable relief was moot and that the awards for damages and attorney's fees were improper. We affirm in part, reverse in part, and render in part.

I. Background^[1]

On November 19, 2021, the Rupps filed their original petition seeking declaratory and injunctive relief. The Rupps alleged that they lived in the Treadwell Subdivision in Austin Texas, a residential neighborhood subject to the following deed restrictions:

1. All of said property shall be used for residences only. Except for garages and servants quarters, only one one-story single family dwelling unit shall be erected, placed or permitted to remain on any of said lots.

. . . .

6. Each residence erected on any of the above property shall be set back at least according to city requirements from the front property line, shall not be nearer than 12 feet to any side street line, and shall not be nearer than 10 feet to any inside property line.

The deed restrictions were binding unless a "majority vote of the owners" revoked or amended them. The Rupps alleged that the Millses purchased a residence next door to them in January 2021. According to the Rupps, Zachary was in the business of residential home development and owned and operated Edgegrove. Because he intended to demolish the house and build a two-story home, Zachary began a "door-to-door campaign seeking to obtain the signatures" of the Treadwell Subdivision's lot owners for a proposed amendment revoking the single-story home restriction but not the lateral setback restriction. According to the Rupps, Zachary told the subdivision's lot owners, among other things, that he wanted to build a 3,500-square-foot two-story home to accommodate his family. Zachary obtained the signatures of twenty-three individuals from the subdivision who were in favor of the amendment. Subsequently, he filed the amendment to the deed restrictions, with attached signatures, in the Travis County real property records.

During the summer of 2021, the Millses demolished the house located on the lot they purchased and filed proposed building plans with the City of Austin. The plans reflected that the Millses sought approval to build a two-story, 5,108-square-foot home, which also intruded into the ten-foot lateral setback required by the deed restrictions. According to the Rupps, the proposed home plan would be two or three times the size of other homes in the subdivision. The Rupps retained counsel and on October 5, 2021, requested the Millses to honor the setback requirements and build a "more reasonably-sized structure." The Millses declined, stating the letter was premature because the City had not granted the building permit. On October 26, 2021, the building permit was issued by the City, and the Millses thereafter began construction on their lot.

In their original petition, the Rupps requested the trial court to render declaratory judgment pursuant to Chapter 37 of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. § 37.001-.011. Specifically, the Rupps sought, among other things, a declaration that the Millses' amendment to the deed restrictions was invalid. The Rupps also sought a temporary injunction prohibiting the Millses from further construction. The Rupps prayed for court costs, attorney's fees, and general relief.

On December 8, 2021, the Millses filed their original answer generally denying the Rupps' claims. The Millses also raised a counterclaim requesting a declaratory judgment that the setback restrictions had been "abandoned and its enforcement waived by the persistent and widespread existing violations of the restriction throughout the subdivision." In the alternative, the Millses requested the trial court to render a declaratory judgment that "the Rupps' home violates the [s]etback . . . restrictions" and order "the demolition or movement of the Rupps' structure." The Millses also asserted affirmative defenses of unclean hands, waiver, and equitable estoppel, alleging that the injunctive relief sought by the Rupps was wrongful because they previously violated the setback restrictions and caused economic damages to the Millses. The Millses also sought attorney's fees.

On January 13, 2022, the Rupps filed their first amended petition and answer generally denying the Millses' counterclaim. In this filing, the Rupps additionally requested entry of a permanent injunction. Soon thereafter, the trial court granted a temporary injunction in favor of the Rupps and directed the parties to mediation.

On March 28, 2022, the Millses filed their "Motion to Require Joinder of Indispensable Parties and Motion to Abate." In said motion, the Millses asserted that the Rupps were required to join the other lot owners of the Treadwell Subdivision as indispensable parties because "a declaratory judgment as to the enforcement of the vote on the amendment to the [d]eed [r]estriction affects everyone in the neighborhood." Accordingly, the Millses requested the trial court to abate the case until the other lot owners of the subdivision were joined as defendants.

On April 28, 2022, the Rupps filed their second amended petition, the live pleading, which added a breach of contract claim based upon the Millses' alleged violations of the deed restrictions. The Rupps also pleaded for a breach of restrictive covenant by which they asserted "an equity cause of action against . . . [the] Mills[es] to construe and enforce the [d]eed [r]estrictions." With respect to this deed enforcement claim, the Rupps sought "a judgment on this claim that would be binding only upon [the Millses] . . . and request that any final judgment in favor of [the Rupps] contain language stating no non-party lot owner is bound by the judgment." In their prayer for relief, the Rupps sought temporary and permanent injunctions, a declaratory judgment, court costs, reasonable attorney's fees, and general relief.

On May 4, 2022, the Rupps filed their notice of nonsuit as to "their claim for declaratory relief set forth in Section V-C of their Second Amended Original Petition and Answer to Counterclaim." On the same day, the trial court denied the Millses' motion for joinder and abatement. On June 8, 2022, the Millses filed their notice of nonsuit regarding their counterclaim against the Rupps.

On December 20, 2022, the Millses filed their pretrial stipulations. They stipulated, in relevant part, to the following:

1. The deed restrictions . . . permit[ ]only one-story single family dwellings, garages and servant quarters on any property covered by the [d]eed [r]estrictions and prohibits, among other things, any residence constructed closer than ten feet (10') from any inside property line.

2. The [Millses' attempted amendment] was not effective to amend the [d]eed [r]estrictions.

3. The [d]eed [r]estrictions apply to [the] . . . Mills[es]' property. . . .

4. [The Millses] commenced construction of a two-story house that would have violated the ten foot (10') inside property lien [sic] set back set forth in the [d]eed [r]estrictions, but ceased such construction when the Court entered the [t]emporary [injunction] in this case.

On January 25, 2023, the Millses filed their "Plea to the Jurisdiction, Motion to Dismiss Case for Lack of Justiciable Controversy and Jurisdiction, and Trial Brief on Attorney's Fees." In said motion, the Millses argued, in relevant part, that "[b]y virtue of the [Rupps] dropping their declaratory judgment claim over the [a]mendment to [the deed restrictions] and the [Millses] dropping their counterclaim and filing the [s]tipulations, the parties removed any justiciable controversy in this case."

A bench trial commenced the following day. During opening statements, the Millses suggested to the trial court that the Rupps were "asking for an advisory opinion to establish their breach case" because the Rupps had nonsuited their declaratory judgment claim. The Millses also informed the trial court that the Rupps had not pleaded for any damages. The Rupps then filed a motion for leave to file an amendment to their live pleading to request "nominal damages of not more than $5[,]000 for their contract and equitable enforcement claims." The Rupps argued that they had previously disclosed their request for $5,000 in nominal damages in their disclosures to the Millses. The Millses objected to the amendment, arguing that they were prejudiced because their "whole strategy today was based on the fact that [the Rupps] w[ere not] seeking damages," and that the Millses "would have done discovery" if the Rupps had sought damages. The trial court did not rule on the motion, and the parties proceeded to trial.

Several exhibits were admitted into evidence, including a copy of the Treadwell Subdivision deed restrictions, the Millses' amendment, and the Millses' stipulations. Edward testified that he and his wife had lived in the Treadwell Subdivision for thirty-one years. He stated that most of the homes in the subdivision ranged in size from 1,500 to 2,500 square feet, and were constructed in the 1950s. According to Edward, the Millses had demolished the...