Carole G. Schoepflin, Individually and as Trustee for the Schoepflin Living Trust v. James C. Alley and Ada L. Alley William G. Bannon and Dorothy J. Bannon Bryan R. Crawley and Cheryl L. Crawley William L. Dyess and Cynthia Ann Dyess Richard L. Elsasser and Gayle Elsasser Richard J. Fleming

SCHOEPFLIN TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-94-00021-CV Carole G. Schoepflin, Individually & as Trustee for the Schoepflin Living Trust, Appellant v. James C. Alley & Ada L. Alley; William G. Bannon & Dorothy J. Bannon; Bryan R. Crawley & Cheryl L. Crawley; William L. Dyess & Cynthia Ann Dyess; Richard L. Elsasser & Gayle Elsasser; Richard J. Fleming; Richard W. Gooch & Terri A. Gooch; Dr. Richard Harbolovic & Valerie F. Harbolovic; Dr. K. E. Hunt & Mrs. K. E. Hunt; Benjamin F. Jones III & Eileen B. Jones; Bruce R. Katt & Patricia A. Katt; Louis D. Lorenzo & Barbara J. Lorenzo; Joseph J. Lovoi, Sr. & Mrs. Joseph J. Lovoi, Sr.; George C. Macauley & Linda W. Macauley; Gilbert R. Martinez & Sherry A. Martinez; Joe T. Minarovic & Wendy Minarovic; Ron Shelly & Nancy L. Shelly; Rick H. Trommer & Sherry R. Trommer; Bruce J. Wilkie & Diane L. Wilkie, Appellees FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 368TH JUDICIAL DISTRICT NO. 92-343-C368, HONORABLE BURT CARNES, JUDGE PRESIDING Appellees, a number of property owners in the Logan Ranch Subdivision, brought a suit for declaratory judgment requesting the district court to construe and enforce a single-family residential use provision in the subdivision deed restrictions against appellant Carole G. Schoepflin. After a bench trial, the trial court rendered judgment declaring the provision valid and construing the provision to permanently enjoin Schoepflin from engaging in certain commercial activities relating to the monkeys she plans to keep on her lot. Schoepflin, individually and as trustee for the Schoepflin Living Trust, appeals from the judgment, contending that the declaratory judgment and accompanying permanent injunction were rendered despite the fact that there was no evidence that she ever intends to engage in any commercial enterprise in any way related to her pet monkeys and despite clear evidence that she keeps the monkeys strictly as pets. We will reverse those portions of the judgment granting injunctive relief and denying Schoepflin's request for attorney's fees; dismiss those portions of the declaratory judgment that construe the deed restrictions as prohibiting enumerated commercial activities relating to Schoepflin's monkeys; and remand the cause to the trial court for further consideration regarding certain miniature monkeys known as marmosets and for reconsideration of attorney's fees in light of the final result. BACKGROUND Schoepflin and her family moved onto a five-acre lot in Logan Ranch in August 1992. The subdivision, which is located in Williamson County near the city of Georgetown, is subject to deed restrictions typical of a rural residential subdivision. The only restriction relevant to this controversy provides that Logan Ranch property "shall be used for single-family residential purposes only and no part of same shall ever be used for any business or commercial purpose or for carrying on a trade or profession." After moving into her Logan Ranch home, Schoepflin moved three pet monkeys onto the property and began construction of three large cages behind the house, two of which she testified were to be used as monkey cages. Schoepflin has kept pet monkeys since she was nine years old, and the Schoepflin Living Trust purchased the Logan Ranch property only after receiving advice from two attorneys that the deed restrictions in that subdivision would not prohibit the keeping of pet monkeys on the property. Apart from her miniature monkeys, Schoepflin had seven monkeys at the time of trial. At trial, Schoepflin testified that the maximum number of monkeys she would consider keeping on her property, not including the marmosets and other miniatures, which weigh less than one pound each, would be four monkeys over five pounds and eight monkeys under five pounds. (1) Appellees filed suit on November 10, 1992, pleading that Schoepflin's use and intended use of her property in Logan Ranch was a substantial breach of the single-family residential use provision of the deed restrictions. Appellees requested that the trial court permanently enjoin Schoepflin from using her property for the purpose of "[k]eeping, housing or otherwise maintaining any wild animals" or "keeping, housing or otherwise maintaining any animals . . . on [her] property . . . pursuant to a Federal business or professional license." In order to prove that Schoepflin intended to use her Logan Ranch property for purposes outside the scope of the single-family use provision, appellees introduced evidence at trial that Schoepflin filed an application with the United States Department of Agriculture ("USDA") for an exhibitor's license for her Logan Ranch property in late October 1992. (2) The USDA declined to issue the requested license. (3) Appellees also introduced evidence that Schoepflin had been involved in a proposed 1500-monkey facility in California a few years earlier. In addition, Merlin Lester, the person from whom Schoepflin purchased the Logan Ranch property, testified that Schoepflin told him that she was involved in behavioral research on monkeys and that there was a lot of money in that; however, he admitted that Schoepflin never said she was making money from such research. He further testified that Schoepflin told him she had some sick monkeys and that they discussed extra washing machines and incubators in connection with treating those monkeys. Lester also stated that Schoepflin and her husband mentioned to him that they were acquiring other property outside of Logan Ranch to go into a large scale operation involving behavioral research on monkeys. (4) Both Schoepflin and appellees requested a declaratory judgment construing the deed restrictions for Logan Ranch. In its judgment, the trial court determined that the single-family residential use provision for Logan Ranch had not been waived and that the provision includes within its meaning the right to keep a reasonable number of household pets incidental to typical single-family use, including the right to keep a reasonable number of small, tame monkeys solely as household pets. The trial court decided that the number and type of monkeys that Schoepflin testified at trial was the maximum she anticipated keeping on her Logan Ranch property, "to-wit: not more than 4 monkeys, each of which would weigh more than 5 pounds but less than 20 pounds, . . . ; plus not more than 8 monkeys, none of which would exceed 5 pounds in weight," would not exceed what may reasonably be considered as incidental to single-family residential use under the deed restrictions for this particular subdivision. However, the trial court concluded that the single-family use provision does prohibit certain activities: keeping animals (5) on the property pursuant to a federal license, medical and behavioral research on animals, medical rehabilitation of animals belonging to another, breeding animals for sale, and buying or receiving animals for resale. Accordingly, the trial court permanently enjoined Schoepflin from engaging in any of these prohibited activities on her property. DISCUSSION In twenty-three points of error, Schoepflin challenges the declaratory judgment and the permanent injunction. We will address four key arguments raised by Schoepflin. She contends that the trial court: (1) abused its discretion by enjoining Schoepflin from keeping monkeys on her property pursuant to a federal license because such an injunction is so broad as to prohibit her from enjoying lawful rights; (2) abused its discretion by enjoining Schoepflin from engaging in the other prohibited activities because there was no evidence or insufficient evidence that Schoepflin ever engaged in or intended to engage in such activities and, thus, no showing of a threat of irreparable harm; (3) erred in declaring that the residential use provision proscribed the prohibited activities because there was no justiciable controversy concerning any of the activities; and (4) erred by failing to issue a declaration as to whether the keeping of marmosets in addition to the twelve monkeys described in the judgment would violate the residential use provision of the deed restrictions. A. The Permanent Injunction A successful applicant for injunctive relief must demonstrate: (1) the existence of a wrongful or unlawful act; (2) the existence of imminent harm; (3) the existence of irreparable injury; and (4) the absence of an adequate remedy at law. Frey v. DeCordova Bend Estates Owners Ass'n, 632 S.W.2d 877, 881 (Tex. App.--Fort Worth 1982), aff'd, 647 S.W.2d 246 (Tex. 1983). The grant of an injunction is ordinarily within the sound discretion of the trial court. On appeal, review of the trial court's action is limited to the question of whether the action constituted a clear abuse of discretion. See Janus Films, Inc. v. City of Fort Worth, 358 S.W.2d 589, 589 (Tex. 1962); Priest v. Texas Animal Health Comm'n, 780 S.W.2d 874, 875 (Tex. App.--Dallas 1989, no writ). In its judgment, the trial court declared that keeping animals on the Logan Ranch property pursuant to a federal license violated the single-family residential use provision of the deed restrictions and accordingly enjoined Schoepflin from keeping monkeys on the property pursuant to a federal license. We are sympathetic to the difficulty the trial court faced in attempting to tailor a remedy in this dispute, but we are concerned that the trial court abused its discretion by issuing an injunction that is so broad as to prohibit Schoepflin from enjoying lawful rights. The trial court abuses its discretion when it issues an injunction that enjoins both legal and illegal acts if the acts of the party are divisible into lawful and unlawful conduct. "[A]n injunctive decree should not issue to restrain actions that are legal or about which there is no asserted complaint." Hellenic Inv., Inc. v. Kroger Co., 766 S.W.2d 861, 867 (Tex. App.--Houston [1st Dist.] 1989, no writ) (holding unenforceable an injunction against the operation of a "night club" in a shopping center that defined night club as an establishment with gross food sales making up less than seventy percent of gross sales from all sources). Appellees' sole basis for bringing their lawsuit was their allegation that Schoepflin's conduct or intended conduct violated the Logan Ranch deed restrictions. The injunction against possessing monkeys under a federal license fails to define the precise licenses or types of licenses included in the prohibition and in no way limits the injunction to prohibit only the keeping of monkeys pursuant to a federal license in violation of the deed restrictions. If Schoepflin needed a federal license to own a pet monkey, possession of a monkey pursuant to such a license would not violate the deed restrictions. Similarly, if Schoepflin needed a federal license to show her pet monkeys to a group of neighbors in order to quell their fears that the monkeys posed a threat to the neighborhood, possession of monkeys pursuant to such a license would not violate the deed restrictions. By contrast, if Schoepflin wanted a federal license in order to operate a research facility for monkeys, possession of monkeys pursuant to such a license would likely violate the single-family use provision because Schoepflin would be using her property for nonresidential purposes. Since the injunction issued by the trial court fails to distinguish between such lawful and unlawful purposes, it is overly broad. (6) Even if the court had tailored its judgment to enjoin only the keeping of monkeys pursuant to a federal license in violation of the deed restrictions, we would still find that the trial court had abused its discretion, but for a different reason. In such a situation, the trial court would have abused its discretion by ordering injunctive relief to prohibit anticipated conduct, not present unlawful conduct, because there is no evidence that Schoepflin intended to keep monkeys pursuant to a federal license that violated the deed restrictions. See Frey, 632 S.W.2d at 881 (holding injunctive relief improper without proof of unlawful conduct or intent to commit an unlawful act). A trial court must find that the defendant engaged in or intends to engage in an unlawful act before it can enjoin the conduct. The wrongful act to be prevented in this case was the violation of the deed restrictions. The court determined in its judgment that owning a reasonable number of pets, including monkeys, does not violate the deed restrictions. Therefore, in the absence of any showing that Schoepflin engaged in or intended to engage in an activity relating to her monkeys that violated the deed restrictions, she should not have been enjoined from engaging in such activities. See Loccous v. J. C. Kinley Corp., 376 S.W.2d 336, 341 (Tex. 1964); Hermann Hosp. v. Thu Nga Thi Tran, 730 S.W.2d 56, 58 (Tex. App.--Houston [14th Dist.] 1987, no writ) ("Since the evidence shows no intention on the part of appellant to do the things sought to be enjoined, the injunction should have been denied."). Schoepflin contends that appellees failed to produce any evidence that she had engaged in or intended to engage in any activity that violated the deed restrictions. In deciding a no-evidence point, we must consider only the evidence and inferences tending to support the finding of the trier of fact and disregard all evidence and inferences to the contrary. Alm v. Aluminum Co. of Am., 717 S.W.2d 588, 593 (Tex. 1986), cert. denied, 111 S.Ct. 135 (1990); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965). See generally William Powers, Jr. & Jack Ratliff, Another Look at "No Evidence" and "Insufficient Evidence", 69 Tex. L. Rev. 515 (1991). The evidence appellees presented at trial established that Schoepflin owned monkeys, had begun construction of at least two cages for her monkeys on her property, had referred to incubators and extra washing machines in her discussion with Lester and had claimed to have been involved with behavioral research on monkeys. Appellees' evidence also established that Schoepflin had considered building a large monkey facility in California years before, that she applied for a federal exhibitor's permit in October 1992, which was denied, and that she was looking into buying property outside Logan Ranch. None of this evidence, independently or cumulatively, constitutes proof that Schoepflin had engaged in or intended to engage in any of the activities prohibited by the injunction. Past acts and practices will not furnish a basis for injunctive relief unless it is shown that they probably will recur. Burkland v. Hackett, 575 S.W.2d 389, 392 (Tex. Civ. App.--Tyler 1978, no writ). Thus, the fact that Schoepflin had considered building a facility in California is an insufficient basis for injunctive relief because appellees produced no evidence to show that such conduct probably would occur on the Logan Ranch property. Neither will an injunction lie to prevent an alleged threatened act, the commission of which is purely speculative, or an anticipated act because such an act creates neither imminent harm nor irreparable injury. See Frey v. DeCordova Bend Estates Owners Ass'n, 647 S.W.2d 246, 248 (Tex. 1983) (determining that a trial court should deny injunctive relief if fear or apprehension of the possibility of injury is the sole basis for injunctive relief); Mother & Unborn Baby Care of N. Tex., Inc. v. Doe, 689 S.W.2d 336, 338 (Tex. App.--Fort Worth 1985, writ dism'd) ("The testimony of `fear', `apprehension', and `possibilities' is not sufficient to establish any injury, let alone `irreparable injury.'"); Schulman v. City of Houston, 406 S.W.2d 219, 225 (Tex. Civ. App.--Tyler 1966, writ ref'd n.r.e.). Furthermore, injunctions are extraordinary writs issued only to prevent imminent harm. Priest, 780 S.W.2d at 883 ("Injunction is a harsh remedy and must be carefully regulated and confined to proper cases."). Absent a showing that Schoepflin's conduct or intended conduct posed a threat of imminent harm to appellees, the court should not have granted the injunction. Schoepflin's statements to Lester concerning her involvement in behavioral research, the incubators, and the extra washing machines, along with the evidence concerning the cages, Schoepflin's application for a federal permit, her contemplated purchase of additional property outside of Logan Ranch, and her past activities in California provide nothing more than grounds for speculation that she would keep monkeys on her Logan Ranch property for purposes that violated the deed restrictions. The mere prospect that Schoepflin might someday engage in activity that violates the Logan Ranch deed restrictions is not a sufficient basis for an injunction. Because appellees failed to establish that Schoepflin intended to engage in conduct that violated the deed restrictions and that Schoepflin's conduct posed a threat of imminent harm and irreparable injury, the trial court abused its discretion in ordering the injunction. We accordingly sustain Schoepflin's points of error one through four, six, ten, twelve, and fourteen. B. The Declaratory Judgment A court has the power to declare the rights, status, and other legal relations between parties when there is a real matter in controversy. Tex. Civ. Prac. & Rem. Code Ann. § 37.003 (West 1986). A declaratory judgment should not issue unless a justiciable controversy exists between the parties. Section 37.003 gives a court no power to issue advisory opinions (7) or to determine matters not essential to the decision of an actual controversy although such questions may in the future require adjudication. California Prod., Inc. v. Puretex Lemon Juice, Inc., 334 S.W.2d 780, 782 (Tex. 1960). "To constitute a justiciable controversy, there must exist a real and substantial controversy involving a genuine conflict of tangible interests and not merely a theoretical dispute." Scurlock Permian Corp. v. Brazos County, 869 S.W.2d 478, 487 (Tex. App.--Houston [1st Dist.] 1993, writ denied). See also Beacon Nat'l Ins. Co. v. Texas State Bd. of Ins., 598 S.W.2d 694, 696 (Tex. Civ. App.--Austin 1980, writ ref'd n.r.e.) (noting that a court will not declare rights on occurrences that are uncertain, contingent, and which may never happen). There is no justiciable controversy before the court when the existence of a controversy is dependent upon the happening of some future event, Firemen's Ins. Co. v. Burch, 442 S.W.2d 331, 334 (Tex. 1968), or when there is no real intent to commit an unlawful act. Spradley v. Whitehall, 314 S.W.2d 615, 619 (Tex. Civ. App.--Fort Worth 1958, no writ) (holding that no justiciable controversy existed in the absence of any real threat or intention to violate a restrictive covenant). For example, if Schoepflin had been breeding monkeys for resale on her property in violation of the residential use only provision, a justiciable controversy would have been before the court. However, the justiciable controversy would not have existed until she began actual preparations for such breeding. As previously discussed, there is no evidence that Schoepflin has engaged in or intends to engage in any of the prohibited activities on her Logan Ranch property. Thus, the trial court erred in declaring that the residential use provision of the deed restrictions disallowed the prohibited activities because there was no justifiable controversy concerning any of these activities by Schoepflin. (8) A trial court lacks jurisdiction in a declaratory judgment action to declare rights when there is no justiciable controversy. Phillips Petroleum Co. v. Bivins, 423 S.W.2d 340, 345 (Tex. Civ. App.--Amarillo 1967, writ ref'd n.r.e.). The trial court's exercise of jurisdiction where there is none constitutes fundamental error that may be raised at any time. Id. When the trial court lacks jurisdiction, the appellate court likewise lacks jurisdiction. Id. Because there was no justiciable controversy in the present case, the trial court lacked jurisdiction to render that portion of the judgment purporting to declare that the deed restrictions forbade the prohibited activities. We therefore sustain Schoepflin's points of error sixteen through twenty. There was, however, a justiciable controversy over whether Schoepflin's possession of pet monkeys on her property violated the deed restrictions. The trial court declared that possession of twelve pet monkeys would not exceed what may reasonably be considered as incidental to single-family residential use under the deed restrictions. However, the judgment failed to account for the marmosets Schoepflin testified that she planned to keep in addition to the twelve monkeys. Accordingly, Schoepflin asks this Court to remand to the trial court for a declaration concerning the marmosets. We agree with Schoepflin's contention that the court erred by failing to include in the judgment a declaration concerning Schoepflin's pet marmosets. In a suit for declaratory relief, the trial court has the discretion to render a judgment declaring the rights of the parties only as to some of the issues raised. Southern Nat'l Bank v. City of Austin, 582 S.W.2d 229, 237 (Tex. Civ. App.--Tyler 1979, writ ref'd n.r.e.). However, the trial court has limited discretion to refuse a declaratory judgment only when the judgment would not remove the uncertainty giving rise to the proceeding. Tex. Civ. Prac. & Rem. Code Ann. § 37.008 (West 1986); James v. Hitchcock Indep. Sch. Dist., 742 S.W.2d 701, 704 (Tex. App.--Houston [1st Dist.] 1987, writ denied). Because a declaration by the trial court concerning the marmosets would remove any lingering uncertainty regarding Schoepflin's right to keep her pets on her property, we sustain Schoepflin's twenty-first point of error and remand the case to the trial court for a declaration concerning the marmosets. CONCLUSION Appellees failed to produce any evidence that Schoepflin engaged in or intended to engage in any of the prohibited activities. Additionally, there was no evidence that Schoepflin's conduct posed a threat of imminent harm and irreparable injury to the appellees. We therefore reverse those portions of the trial-court judgment granting injunctive relief and denying Schoepflin's request for attorney's fees and render judgment denying all injunctive relief. We dismiss those portions of the declaratory judgment which declare that the prohibited activities violate the deed restrictions for lack of jurisdiction. We remand the cause to the trial court for a declaration concerning the marmosets and for reconsideration of Schoepflin's claim for attorneys' fees in light of the final result. See Tex. Civ. Prac. & Rem. Code Ann. § 37.009 (West 1986) (allowing the court to award reasonable and necessary attorney's fees as are equitable and just). Jimmy Carroll, Chief Justice Before Chief Justice Carroll, Justices Powers and B. A. Smith Reversed and Rendered in Part; Reversed and Remanded in Part Filed: March 8, 1995 Do Not Publish 1. Schoepflin testified that she never intended to have more than 12 monkeys, not including the marmosets: "[W]e're lumping them together to try to give you like a total number of 12, bigger than 12 ounce guys [the marmosets]." 2. Appellees contend that Schoepflin applied for the federal permit to circumvent Williamson County wild animal regulations. In a letter dated October 29, 1992 attached to her license application, Schoepflin offered her reason for applying for the permit: "I would like to show approx. 50 Logan Ranch Road neighbors my pets so that they will see that what Mr. Fred List told them about me, is false. I have never had a baboon, much less an AIDS infected one. . . . We do not want to be in violation of not having an exhibitors permit if Mr. List tries to turn us in for not having one when he finds out that his neighbors were invited to see our pets." Fred List, a Logan Ranch property owner, had started rumors that Schoepflin planned to keep 2000 monkeys on her property. List had also reported Schoepflin to the Texas Water Commission for having AIDS-infected baboons and for dumping AIDS-infected baboon feces into the Edwards Aquifer drinking water. 3. The USDA did not issue the license because it determined that Schoepflin did not meet the USDA definition of exhibitor because she only wanted to show the monkeys to her neighbors. Accordingly, Schoepflin did not need a permit. 4. Schoepflin contradicted his testimony, testifying that they were considering the purchase of industrial property as an investment. 5. In the injunction, the court substituted the word "non-human primates" for "animals." The term non-human primates refers to monkeys. 6. Appellees contend that Schoepflin applied for the federal license in order to circumvent a county wild animal ordinance adopted by the Williamson County Commissioners' Court on July 25, 1988. However, a court should not issue an injunction to restrain the commission of a threatened act merely to prevent a violation of a law, especially where the law itself provides penalties for its violations. Pitman v. State, 234 S.W.2d 436, 439 (Tex. Civ. App.--Texarkana 1950, no writ). There is an exception to this rule: a court will interfere when necessary to protect civil or property rights. Gluck v. Texas Animal Health Comm'n, 510 S.W.2d 412, 415 (Tex. Civ. App.--San Antonio 1973, writ ref'd n.r.e.). Appellees must therefore prove that the federal license application posed a threat to their property rights, i.e., a threat of violation of the Logan Ranch deed restrictions. The trial court concluded in its judgment that keeping pet monkeys--apparently even if those monkeys must be kept pursuant to a county variance in order to comply with a wild animal law--is not inconsistent with single-family residential use and thus does not violate the deed restrictions. 7. An advisory opinion is one in which the judgment addresses only a hypothetical injury rather than remedying an actual or imminent harm. See Texas Ass'n of Business v. Texas Air Control Bd., 852 S.W.2d 440, 445 (Tex. 1993). 8. Likewise, while there is evidence that Schoepflin applied for a federal license, there is no evidence that she applied for a federal license in violation of the Logan Ranch deed restrictions. As discussed earlier, possession of a monkey pursuant to a federal license is not a per se violation of the deed restrictions.