Li Li v. Pemberton Park Community Association ( 2021 )

Supreme Court of Texas
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No. 20-0571
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Li Li,
Petitioner,
v.
Pemberton Park Community Association,
Respondent
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On Petition for Review from the
Court of Appeals for the Fourteenth District of Texas
═══════════════════════════════════════
PER CURIAM
Petitioner Li owns a residence in Houston that is subject to
restrictive covenants found in the “Declaration of Covenants,
Restrictions and Easements for Pemberton Park” (Covenants).
Respondent Pemberton Park Community Association (Association)
enforces the Covenants. The Association sued Li for violations of several
Covenants. Li represented herself during most of the trial court
proceedings. The trial court granted summary judgment for the
Association, and the court of appeals affirmed. ___ S.W.3d ___, 2020
WL 1467350 (Tex. App.—Houston [14th Dist.] Mar. 26, 2020). Li,
represented in this Court by counsel, contends that the court of appeals
erred by holding that she failed to preserve for appeal her argument that
the Association’s enforcement of the Covenants was “arbitrary,
capricious, or discriminatory” in violation of section 202.004(a) of the
Property Code. We agree. The court of appeals’ judgment is reversed,
and the case is remanded to that court for further proceedings.
I.
In September 2014, a hailstorm caused a hairline crack in the
exterior stucco of Li’s home. The contractor she hired used transparent
caulk to seal the crack. In November 2015, the Association asked Li to
conceal the crack with paint within 30 days. Li did so and notified the
Association on November 16. A representative of the Association
responded the next day, saying she “ha[d] notated [Li’s] account and
closed the violation.” In March 2016, however, the Association informed
Li that the problem was not fixed because the paint Li used was not the
same color as the rest of her home’s exterior. Following another attempt
by Li to comply and another rejection of her efforts by the Association,
the Association informed Li in a September 2016 letter of its intent to
sue her. In response, Li sued the Association in justice court. The
Association brought the present suit in district court in March 2017.
The justice court later dismissed Li’s suit.
The Association alleged that Li violated sections 6.02.2 and 8.01.3
of the Covenants by failing to re-paint the damaged area in a color
matching the rest of the home’s exterior.1 The Association sought a
1Those two sections, respectively, provide that “[e]ach Owner shall
maintain the exterior of each Owner’s residence . . . in an attractive, sound and
well maintained condition, including proper maintenance and repair as needed
2
permanent injunction, statutory damages under section 202.004(c) of
the Property Code, and attorney’s fees. Li, acting pro se, filed an answer.
She alleged, among other defenses, that “[m]any other property owners
have lived with much worse violations for many years without being
enforced, sued, [or] fined by the [Association], including the President
and Directors of the Board of the . . . Association. The [Association]
breached the Declaration of Covenant of fair dealing of equal and same
manner, Sec. 4.02.3.”
The Association moved for summary judgment. Li filed a
competing summary-judgment motion, in which she repeated her
selective-enforcement allegation and pointed to photographic evidence
supporting it. In her response to the Association’s motion, Li provided
examples and details supporting her claim that the Association
“selectively enforced the Defendant and . . . breached the Declaration of
Covenant of fair dealing, and of equal and same manner, Sec 4.02.3.” Li
added that this disparate treatment may have been related to
complaints she made on unrelated issues such as unleashed dogs and
security gates. At an August 25 hearing, the district court denied the
Association’s motion for summary judgment to allow the parties to
conduct discovery on the defense of selective enforcement.
of paint . . . . The exterior paint on each Owner’s residence must be
maintained so that . . . all painted portions remain neat and free of mildew and
discoloration”; and “[a]ll residences, buildings and structures must be kept in
good repair, must be painted . . . when necessary to preserve their
attractiveness and must otherwise be maintained in such manner as to obtain
and maintain Prevailing Community Standards.”
3
Following discovery, Li filed another document titled “Cross
Motion for Summary Judgment,” which alleged that the Association “not
only selectively sent out deed violation enforcement letters, but also
selectively took follow-up actions for enforcement. The [Association]
breached the Declaration of Covenant of fair dealing, and of equal and
same manner, Sec. 4.02.3. The Defendant was selectively enforced by
the [Association].” She described instances in which the Association
allegedly disregarded more serious violations by other residents. The
Association responded with evidence intended to demonstrate that “of
the fourteen violations which were open during the same time period as
Ms. Li’s violation, Ms. Li was the only owner who refused to cure the
violation.” During the trial court proceedings, neither party used the
phrase “arbitrary, capricious, or discriminatory” or cited section
202.004(a).2 “Sec. 4.02.3,” to which Li’s pleadings repeatedly referred,
is a provision of the Covenants entitled “Manner and Effect of Adoption
of Architectural Guidelines.” It has nothing to do with evenhanded
enforcement of the Covenants.
The trial court granted the Association’s motion for summary
judgment and denied Li’s cross-motion. The court issued an injunction
ordering Li to re-paint the affected part of her home and directing her
to pay the Association $1,000 in statutory damages, court costs, and
attorney’s fees of $16,572. About a week later, Li, represented by
2 Section 202.004(a) of the Property Code provides that an “exercise of
discretionary authority by a 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.”
4
counsel for the first time, filed a motion to set aside the summary
judgment. This filing restated Li’s earlier defenses, including her claim
of selective enforcement, though it still made no express mention of
section 202.004(a) of the Property Code. The district court denied the
motion, and Li appealed.
Li raised two issues on appeal. She argued that summary
judgment was improper because a fact issue existed on (1) whether the
Association’s enforcement of the Covenants was arbitrary, capricious, or
discriminatory under section 202.004(a); and (2) whether the
Association had abandoned the provisions that Li allegedly violated.
The court of appeals refused to consider either argument. It concluded
that Li had not raised these points in her summary-judgment response,
which meant summary judgment could not be reversed on either basis.
2020 WL 1467350, at *3-4. In this Court, Li challenges the court of
appeals’ error-preservation holding on the first issue.
II.
“Issues not expressly presented to the trial court by written
motion, answer or other response shall not be considered on appeal as
grounds for reversal” of summary judgment. TEX. R. CIV. P. 166a(c).
Nevertheless, Rule 166a(c), like “all . . . procedural rules . . . should be
construed liberally so that the right to appeal is not lost unnecessarily.”
Arkoma Basin Expl. Co. v. FMF Assocs. 1990-A, Ltd., 249 S.W.3d 380,
388 (Tex. 2008). Appellate courts should “hesitate to turn away claims
based on waiver or failure to preserve the issue.” First United
Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214, 221 (Tex.
2017). This is especially so “where the party has clearly and timely
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registered its objection” to the ruling challenged on appeal. Nath v. Tex.
Children’s Hosp., 446 S.W.3d 355, 365 (Tex. 2014).
This Court has “often held that a party sufficiently preserves an
issue for review by arguing the issue’s substance, even if the party does
not call the issue by name.” St. John Missionary Baptist Church v.
Flakes, 595 S.W.3d 211, 214 (Tex. 2020). In the same vein, parties on
appeal need not always “rely on precisely the same case law or statutory
subpart” on which they relied below. Adams v. Starside Custom
Builders, LLC, 547 S.W.3d 890, 896 (Tex. 2018). And while appellate
courts “do not consider issues that were not raised . . . below,” parties
may “construct new arguments in support of issues” that were raised.
Greene v. Farmers Ins. Exch., 446 S.W.3d 761, 764 n.4 (Tex. 2014).
These principles have been applied in reviewing grants of summary
judgment. See Scripps NP Operating, LLC v. Carter, 573 S.W.3d 781,
791 (Tex. 2019); Nath, 446 S.W.3d at 365.
The question is whether Li sufficiently preserved the issue of
arbitrary enforcement under section 202.004(a) of the Property Code for
review by arguing the issue’s substance, even though she did not specify
the statutory subpart on which she now focuses or couch her argument
in the subpart’s terminology. We hold that she did. Both Li’s response
to the Association’s summary-judgment motion and her cross-motion for
summary judgment argued that the Association “selectively enforced”
its restrictive covenants and failed to engage in “fair dealing” or apply
the covenants in an “equal and same manner [sic].” Although she did
not use the words “arbitrary, capricious, or discriminatory” or cite
section 202.004(a), she argued the issue’s substance despite not calling
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it by name. Flakes, 595 S.W.3d at 214. She did so by arguing that she
was singled out for discriminatory and arbitrary treatment because the
deed restrictions were “selectively enforced” against her.
Li’s pleadings further elaborated on the selective-enforcement
argument contained in her summary-judgment papers by explaining
that “[m]any other property owners . . . have lived with much worse
violations . . . for many years without being enforced, sued, [or] fined by
the [Association].” She claimed that she was singled out because she
had complained about unrelated neighborhood issues. Such
inconsistent treatment of similarly situated property owners is just the
kind of “arbitrary, capricious, or discriminatory . . . exercise of
discretionary authority” prohibited by section 202.004(a).3
The Association contends that even if Li’s allegation of selective
enforcement would otherwise have been enough to preserve a complaint
under section 202.004(a), she disclaimed reliance on section 202.004 by
instead citing section 4.02.3 of the Covenants. We have held, however,
that mistakenly citing the wrong legal authority does not necessarily
waive an argument whose substance is otherwise made known to the
court. See Nath, 446 S.W.3d at 364-65 (party adequately preserved for
appeal issue of whether sanctions were excessive in violation of due
process clause even though he mistakenly cited Eighth Amendment).
3 See, e.g., Sierra Crest Homeowners Ass’n v. Villalobos, 527 S.W.3d 235,
243-44, 248 (Tex. App.—El Paso 2016, no pet.); Nolan v. Hunter, No. 04-13-
00072-CV, 2013 WL 5431050, at *4 (Tex. App.—San Antonio Sept. 25, 2013,
no pet.); Leake v. Campbell, 352 S.W.3d 180, 190 (Tex. App.—Fort Worth 2011,
no pet.); Glenwood Acres Landowners Ass’n v. Alvis, No. 12-07-00072-CV, 2007
WL 2178554, at *2 (Tex. App.—Tyler July 31, 2007, no pet.).
7
Li’s inapposite reference to section 4.02.3 was a mistake by a pro se
litigant, not an invocation of alternative authority that altered the
substance of Li’s argument.
Indeed, the record indicates that the Association was under no
misimpression as to the substance of Li’s argument. The Association
responded to Li’s claim of “selective enforcement” by introducing
evidence that, “of the fourteen violations which were open during the
same time period as Ms. Li’s violation, Ms. Li was the only owner who
refused to cure the violation.” That the Association introduced evidence
intended to justify its treatment of Li as compared to other property
owners indicates that the Association understood that Li’s argument
was in substance a complaint about arbitrary or discriminatory
enforcement. Under the fair-notice standard governing pleadings, a
party’s filing need only provide enough “notice of the facts upon which
the pleader bases his claim” such that “the opposing party [has]
information sufficient to enable him to prepare a defense.” Roark v.
Allen, 633 S.W.2d 804, 810 (Tex. 1982). Even vague legal terminology
may clear this bar if it “alert[s]” the opposing party of the conduct for
which the pleader “intend[s] to hold him liable” or otherwise legally
responsible. Id. This standard has been applied not only to petitions
and answers, but also to filings relating to motions for summary
judgment. See Parker, 514 S.W.3d at 224-25. In this case, the standard
was met: Li argued “selective enforcement” and, despite citing the wrong
authority, she described the allegation with enough clarity to allow the
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Association to respond in much the same manner as it would have if Li
had invoked the correct authority.4
Finally, it bears noting that Li represented herself during the
relevant stages of the district court proceedings. This Court has said
that “[t]here cannot be two sets of procedural rules, one for litigants with
counsel and the other for litigants representing themselves.” Mansfield
State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978). Likewise,
“[l]itigants who represent themselves must comply with the applicable
procedural rules.” Id. at 185. Our more recent cases, however, have
explained that application of a procedural rule—particularly one that
“turns on an actor’s state of mind”—“may require a different result when
the actor is not a lawyer. [This] does not create a separate rule, but
recognizes the differences the rule itself contains.” Wheeler v. Green,
157 S.W.3d 439, 444 (Tex. 2005). This principle is applicable here,
because courts’ construction of a party’s filings in part “turns on [a
litigant’s] state of mind.” Id.; see also Tex. Dep’t of Parks & Wildlife v.
Miranda, 133 S.W.3d 217, 226 (Tex. 2004) (“We construe . . . pleadings”
by “look[ing] to the pleaders’ intent.”). Courts of appeals have
accordingly converged upon the view that courts should “review and
evaluate pro se pleadings with liberality and patience.” Corona v.
4 The Association argues that it was prejudiced by Li’s failure to cite the
Property Code because section 202.004(a) only applies to a property owners’
association’s “exercise of discretionary authority,” and the absence of citation
to section 202.004(a) meant the Association had no opportunity to present a
defense on this issue. This argument is unpersuasive. The Association
provides no reason to doubt that its enforcement of the Covenants against Li
was the “exercise of discretionary authority,” and we see no possibility it could
have shown otherwise if given the chance.
9
Pilgrim’s Pride Corp., 245 S.W.3d 75, 78 n.3 (Tex. App.—Texarkana
2008, pet. denied).5
In sum, we hold that Li preserved for appeal her argument that
the Association’s enforcement of the Covenants was “arbitrary,
capricious, or discriminatory” under Texas Property Code section
202.004(a). The parties also dispute whether the summary-judgment
evidence created a material fact issue on this point, and the Association
further raises questions about the consequence of a section 202.004(a)
finding that its actions were “arbitrary, capricious, or discriminatory.”
Since the court of appeals disposed of this case on error-preservation
grounds, it did not consider these matters. We therefore remand this
case to the court of appeals for consideration of any issues properly
raised in, but not decided by, that court. See PNC Mortg. v. Howard,
616 S.W.3d 581, 585 n.8 (Tex. 2021); TEX. R. APP. P. 53.4.
For these reasons, without hearing oral argument, the court of
appeals’ judgment is reversed, and the case is remanded to the court of
appeals for further proceedings consistent with this opinion. TEX. R.
APP. P. 59.1.
OPINION DELIVERED: October 1, 2021
5 See In re A.G.D., No. 07-15-00201-CV, 2016 WL 316879, at *2 (Tex.
App.—Amarillo Jan. 22, 2016, no pet.); Stewart v. Tex. Health & Human Servs.
Comm’n, No. 03-09-00226-CV, 2010 WL 5019285, at *2 (Tex. App.—Austin
Dec. 9, 2010, no pet.); Siddiqui v. Siddiqui, No. 14-07-00235-CV, 2009 WL
508260, at *1 (Tex. App.—Houston [14th Dist.] Mar. 3, 2009, pet. denied);
Chambers v. State, 261 S.W.3d 755, 757 (Tex. App.—Dallas 2008, pet. denied);
In re Taylor, 28 S.W.3d 240, 246 (Tex. App.—Waco 2000, orig. proceeding);
White v. Cole, 880 S.W.2d 292, 294 (Tex. App.—Beaumont 1994, writ denied);
Thomas v. Collins, 860 S.W.2d 500, 503 (Tex. App.—Houston [1st Dist.] 1993,
writ denied).
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