Diane Streit and Eric Streit v. Grand Lakes Community Association, Inc. ( 2024 )

Opinion issued March 28, 2024
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-22-00600-CV
———————————
DIANE STREIT AND ERIC STREIT, Appellant
V.
GRAND LAKES COMMUNITY ASSOCIATION, INC., Appellee
On Appeal from the 240th District Court
Fort Bend County, Texas
Trial Court Case No. 21-DCV-282387
MEMORANDUM OPINION
The Streits live in Katy, Texas in a community subject to restrictive
covenants. When their backyard neighbors erected a storage unit that exceeded the
height and size limitations in the restrictive covenants, the Streits complained to
the homeowners’ association, the Grand Lakes Community Association, Inc. (the
“Association”). The Association, which had approved the construction, did not
take the actions that the Streits requested. The Streits sued both the Association
and their neighbors. The trial court dismissed the claims against the neighbors with
prejudice to refiling and severed those claims. The Association filed a plea to the
jurisdiction arguing that the Streits’ claims were not justiciable because they were
barred by provisions in the restrictive covenants. The Streits filed an amended
pleading to address some of the Association’s arguments and added a nuisance
claim against the neighbors. They never re-served the neighbors, and after the trial
court dismissed the Association, the Streits nonsuited their nuisance claim against
the neighbors.
On appeal, the Streits raise two issues. First, they argue that the trial court
erred by granting the Association’s plea to the jurisdiction because the plea
initially attacked the causes of action in the original petition, not the first amended
petition. Second, the Streits argue that the trial court erred by granting the plea to
the jurisdiction because they have both standing and capacity to sue the
Association for negligence, declaratory relief, and injunctive relief.
On appeal, the Association filed a motion to dismiss the appeal. It argues
that the Streits’ notice of appeal was untimely because the order granting the plea
to the jurisdiction, not the later order granting the nonsuit, was the final judgment
in this case. The Association reasons that the Streits’ failure to serve the neighbors
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with the amended petition, along with surrounding litigation circumstances, acted
as a discontinuation and therefore the earlier order granting the plea to the
jurisdiction resolved all pending parties and claims.
We deny the motion to dismiss the appeal because the record on appeal
includes some indication that the Streits intended to serve the neighbors with the
amended petition. We affirm the trial court’s judgment dismissing the Streits’
claims against the Association.
Background
When the Streits noticed their backyard neighbors1 building an outbuilding
that exceed the size limitations in their community’s restrictive covenants, the
Declaration of Covenants, Conditions, and Restrictions for Grand Lakes (the
“Declaration” or “restrictive covenants”), they promptly emailed the Association’s
property manager, Ashley Howard, and asked her to send the neighbors a cease
and desist due the nonconforming nature of the structure they were building.2
About a month later, on April 9, 2021, the Streits filed suit against the neighbors
and the Association. The Streits alleged claims for breach of covenant and
1
The neighbors are Stephanie Waters and Douglas Paradis. They are not parties to
this appeal.
2
The Streits allege that they first noticed the construction on or about March 5,
2021, and they sent the email to the property manager on March 11, 2011. The
March 11, 2021 email is not included in the appellate record.
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injunctive relief. The claims against the neighbors were dismissed and severed, and
the Streits later filed an amended petition.
In their amended petition, the Streits further alleged that about two weeks
after they initially filed suit, they attended an Association meeting and learned that
their neighbors’ building application had been automatically approved and no
board member recalled seeing or voting on it. In their amended petition, the Streits
sought a declaratory judgment against the Association regarding the validity of the
approval of the neighbor’s application. They also alleged causes of action for
negligence against the Association and for private nuisance against the neighbors.
Finally, the Streits sought injunctive relief against the Association and the
neighbors to require enforcement of the restrictive covenants.
After the claims against the neighbors were dismissed and severed but
before the Streits filed their amended petition, the Association filed a plea to the
jurisdiction seeking dismissal. The Association argued that the Streits lacked
standing and capacity to sue. It argued that the Declaration gives a homeowner
enforcement authority when the Association “fails or refuses to enforce a provision
of th[e] Declaration for a period of thirty (30) days after written notice from . . .
any owner.” The Association asserted that the Streits did not allege facts that
supported their right to enforce the Declaration. The Association attached
documentation showing that the neighbors had submitted a modification request to
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the Association’s Architectural Control Committee (“ACC”) and that the ACC had
approved the request.
In response to the Association’s plea to the jurisdiction, the Streits amended
their petition, adding the allegations that the Association failed to comply with the
Declaration in approving the neighbors’ modification request and alleging
negligence and private nuisance instead of breach of covenant.
The hearing on the plea to the jurisdiction was held about a month after the
Streits amended their petition. At the hearing, the Streits’ counsel said: “[W]e have
not—we intend to, but we have not brought Paradis and Waters back in on our
nuisance claim yet.”3 The trial court granted the Association’s plea to the
jurisdiction on April 1, 2022. The Streits did not immediately file a notice of
appeal, and nothing in the appellate record indicates that they served the neighbors
with the amended petition. About four months after the trial court granted the plea
to the jurisdiction, the Streits filed a notice of nonsuit as to their claims against the
neighbors. The following day, July 27, 2022, trial court granted the nonsuit. The
Streits filed their notice of appeal on August 18, 2022.
3
At the hearing, the Streits argued that the Association’s evidence—the
modification request and approval—was hearsay and not authenticated because
the actual documents were provided in the litigation by the neighbors who were no
longer parties to the suit. In this context, the Streits’ counsel indicated that they
intended to serve the neighbors with the private nuisance claim.
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Analysis
On appeal, the Streits raise two issues challenging the grant of the plea to the
jurisdiction. First, they argue that the court erred by granting the plea because it
was “directed at” their original petition, not their amended petition. Second, they
argue that the trial court erred by granting the plea because they have both standing
and capacity.
While the appeal was pending in this court, the Association filed a motion to
dismiss the appeal. The Association argues that the April 1, 2022 order granting
the plea to the jurisdiction was a final judgment because it disposed of all parties
and all claims because the Streits had not served the neighbors with the private
nuisance claim. We will consider the challenge to our appellate jurisdiction first.
I. Appellate jurisdiction
A judgment is final for purposes of appeal if it “disposes of all pending
parties and claims in the record,” “finally disposes of all remaining parties and
claims . . . regardless of its language,” or “clearly and unequivocally states that it
finally disposes of all claims and parties.” Lehmann v. Har-Con Corp., 39 S.W.3d
191, 195, 200, 205 (Tex. 2001); accord Old Am. Cnty. Mut. Fire Ins. Co. v.
Villegas, No. 01-17-00750-CV, 2019 WL 3121853, at *2 (Tex. App.—Houston
[1st Dist.] July 16, 2019, no pet.) (mem. op.). “To determine whether an order
disposes of all pending claims and parties, it may of course be necessary for the
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appellate court to look to the record in the case.” Lehmann, 39 S.W.3d at 205–06.
“The language of an order or judgment cannot make it interlocutory when, in fact,
on the record, it is a final disposition of the case.” Id. at 200.
“A judgment that expressly disposes of some, but not all, of the defendants
is nevertheless final for purposes of appeal if the only remaining defendants have
not been served or filed answers and nothing in the record indicates that the
plaintiff ever expected to obtain service on the unserved defendants.” Bradley v.
Authur, No. 01-15-00065-CV, 2016 WL 7011412, at *1–2 (Tex. App.—Houston
[1st Dist.] Dec. 1, 2016, pet. denied) (mem. op.) (citing M.O. Dental Lab v. Rape,
139 S.W.3d 671, 674–75 (Tex. 2004) (per curiam), and Youngstown Sheet & Tube
Co. v. Penn, 363 S.W.2d 230, 232 (Tex. 1962)). “In these circumstances the case
stands as if there had been a discontinuance as to [the unserved party], and the
judgment is to be regarded as final for the purposes of appeal.” Penn, 363 S.W.2d
at 232.
The failure to effect service of process against an unserved defendant,
however, does not, by itself, demonstrate a lack of intent to serve that defendant. In
re Sheppard, 193 S.W.3d 181, 188 (Tex. App.—Houston [1st Dist.] 2006, orig.
proceeding). In such cases, the Court must determine whether the record
demonstrates an intention to serve the unserved defendant. See, e.g., In re Minter
Elec. Co., Inc., 277 S.W.3d 540, 544 (Tex. App.—Dallas 2009, orig. proceeding
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[mand. denied]) (concluding record demonstrated intention to serve unserved
defendant where petition recited where defendant could be served, citation was
paid for and issued for him, case had been pending less than one year, plaintiffs
continued to include defendant in pleadings, and trial court struck through word
“final” in heading of judgment).
In this case, the Streits’ amended petition recited where the neighbors could
be served. The case had been pending about a year when the trial court granted the
Association’s plea to the jurisdiction, but the amended petition had been pending
for only a month. The private nuisance claim was included in the amended petition,
and the Streits did not seek clarification about the finality of the order granting the
plea to the jurisdiction, which itself did not purport to be a final judgment or
dispose of all parties and claims. And the Streits lawyer told the trial court that
they intended to bring the neighbors back into the case on the nuisance claim. We
conclude that record demonstrates an intention to serve the unserved defendants.
See id.; see also Villegas, 2019 WL 3121853, at *3 (holding that judgment was
interlocutory when pleadings showed unserved defendant’s amenability to service,
claims against unserved defendant included in pleading amendment, and plaintiff
did not seek clarification about finality of interlocutory order granting default
judgment as to codefendant); Bradley, 2016 WL 7011412 at *2 (dismissing appeal
as attempt to appeal interlocutory order when plaintiff informed trial court of
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interest in prosecuting claim and frustration with procuring service on unserved
defendant).
We deny the Association’s motion to dismiss this appeal.
II. Subject-matter jurisdiction
We now consider the Streits’ issues on appeal.
A. Standard of review
Standing is a component of subject-matter jurisdiction that focuses on the
question of who may bring an action. Vernco Constr., Inc. v. Nelson, 460 S.W.3d
145, 149 (Tex. 2015); Patterson v. Planned Parenthood of Hous. & Se. Tex., Inc.,
971 S.W.2d 439, 442 (Tex. 1998). “Courts lack subject-matter jurisdiction to
adjudicate disputes initiated by parties lacking standing.” Vernco Constr., 460
S.W.3d at 149. Subject-matter jurisdiction is an issue that cannot be waived by the
parties and may be raised at any time. Tex. Ass’n of Bus. v. Tex. Air Control Bd.,
852 S.W.2d 440, 445 (Tex. 1993). Whether a court has subject-matter jurisdiction
is a question of law, and accordingly we review a trial court’s ruling on a plea to
the jurisdiction de novo. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d
217, 226 (Tex. 2004). A party may challenge a trial court’s subject-matter
jurisdiction by filing a plea to the jurisdiction. See Bland Indep. Sch. Dist. v. Blue,
34 S.W.3d 547, 554 (Tex. 2000).
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Ordinarily a plea to the jurisdiction challenges the plaintiff’s pleadings,
asserting that the alleged facts do not affirmatively demonstrate the court’s
jurisdiction. See Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 635
(Tex. 2012). We “construe the plaintiff’s pleadings liberally, taking all factual
assertions as true, and look to the plaintiff’s intent.” Heckman v. Williamson Cty.,
369 S.W.3d 137, 150 (Tex. 2012). A plea to the jurisdiction may also challenge the
existence of jurisdictional facts, and when it does, the parties may present
evidence. Mission Consol. Indep. Sch. Dist., 372 S.W.3d at 635. “When a
jurisdictional issue is not intertwined with the merits of the claims, which is the
case here, disputed fact issues are resolved by the court, not the jury.” Vernco
Constr., 460 S.W.3d at 149.
When a plea to the jurisdiction challenges the existence of jurisdictional
facts, “a trial court’s review of a plea to the jurisdiction mirrors that of a traditional
summary judgment motion.” Mission Consol. Indep. Sch. Dist., 372 S.W.3d at 635.
The movant must present summary-judgment proof demonstrating that the court
lacks jurisdiction. Id. The burden then shifts to the nonmovant to show that there is
a disputed material fact on the jurisdictional issue. Id.; see TEX. R. CIV. P. 166a(c)
(providing that to prevail on traditional summary judgment motion, movant must
establish that no genuine issues of material fact exist and that it is entitled to
judgment as matter of law).
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B. The Streits did not show that the trial court ignored the factual
allegations in the amended petition.
On appeal, the Streits first argue that the court ignored the factual allegations
and causes of action pleaded in their first amended petition. In the plea to the
jurisdiction, the Association argued in part that the Streits failed to allege facts that
would trigger their right to enforce the Declaration. In particular, it argued that the
Streits did not allege that the Association failed or refused to enforce a provision of
the Declaration but that the Streits disagreed with the decision the Association
made. In response, the Streits filed an amended petition in which they alleged facts
to support their contention that the Association failed or refused to enforce the
Declaration. At the hearing, the trial court acknowledged that the Streits had filed
an amended petition alleging negligence against the Association. The trial court
informed the parties of its intention to reread their filings before making a decision.
At the hearing, the Association urged another reason to explain why the
Streits lack standing. The Association argued that although the Streits repleaded
their claim as a cause of action for negligence rather than breach of covenant, the
Streits were nevertheless barred from bringing such an action against the
Association because the Declaration provides that no party having the right to
enforce the Declaration may be held liable for the failure to do so. Thus, the
Association argued, the Streits lacked standing. The order granting the plea to the
jurisdiction stated that the court considered “the motion, the response, and the
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argument of counsel.” Thus, we conclude that the trial court properly considered
the alternative argument that the Association advanced to explain why the Streits
lacked standing. See, e.g., Rusk State Hosp. v. Black, 392 S.W.3d 88, 95 (Tex.
2012) (holding that subject-matter jurisdiction can be raised at any time, including
for first time on appeal).
The Streits have not demonstrated that the trial court failed to consider the
amended pleading in ruling on the plea to the jurisdiction, and the Association
offered an alternative reason to grant its motion that did not depend on facts that
the Streits added in their amended petition. We overrule the first issue.
C. The trial court correctly granted the plea to the jurisdiction
because the Streits’ claim is foreclosed by the Declaration.
In their second issue, the Streits argue that the trial court erred by granting
the plea to the jurisdiction because they have both capacity and standing.
1. Capacity
“A plaintiff must have both standing and capacity to bring a lawsuit.” Austin
Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 848 (Tex. 2005). “[A] party has
capacity when it has the legal authority to act, regardless of whether it has a
justiciable interest in the controversy.” Nootsie, Ltd. v. Williamson Cnty. Appraisal
Dist., 925 S.W.2d 659, 661 (Tex. 1996) (emphasis omitted). While standing is a
jurisdictional issue, capacity is not. Sixth RMA Partners v. Sibley, 111 S.W.3d 46,
12
56 (Tex. 2003). The Streits’ argument that they have capacity to sue is not a reason
to reverse the trial court’s grant of the plea to the jurisdiction.
2. Standing
“In Texas, the standing doctrine requires a concrete injury to the plaintiff
and a real controversy between the parties that will be resolved by the court.”
Heckman, 369 S.W.3d 137, 154 (Tex. 2012). “The standing requirement derives
from the Texas Constitution’s provision for separation of powers among the
branches of government, which denies the judiciary authority to decide issues in
the abstract, and from the open courts provision, which provides court access only
to a ‘person for an injury done him.’” Meyers v. JDC/Firethorne, Ltd., 548 S.W.3d
477, 484 (Tex. 2018) (quoting TEX. CONST. art. I, § 13); see Tex. Ass’n of Bus., 852
S.W.2d at 443–44.
Texas’s standing test parallels the federal test for Article III standing, which
requires a plaintiff to allege “personal injury fairly traceable to the defendant’s
allegedly unlawful conduct and likely to be redressed by the requested relief.”
Heckman, 369 S.W.3d at 154; see also Pike v. Tex. EMC Mgmt., LLC, 610 S.W.3d
763, 776 (Tex. 2020) (looking to federal jurisprudence to resolve issue of standing
under Texas law). The Texas Supreme Court has adopted the three-element test for
standing articulated by the United States Supreme Court:
First, the plaintiff must have suffered an “injury in fact”—an invasion
of a legally protected interest which is (a) concrete and particularized,
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and (b) “actual or imminent, not ‘conjectural’ or ‘hypothetical.’”
Second, there must be a causal connection between the injury and the
conduct complained of—the injury has to be “fairly . . . trace[able] to
the challenged action of the defendant, and not . . . th[e] result [of] the
independent action of some third party not before the court.” Third, it
must be “likely,” as opposed to merely “speculative,” that the injury
will be “redressed by a favorable decision.”
Heckman, 369 S.W.3d at 154–55 (quoting Lujan v. Defenders of Wildlife, 504 U.S.
555, 560–61 (1992)) (citations omitted); see In re Abbott, 601 S.W.3d 802, 808
(Tex. 2020) (noting that Supreme Court of Texas has adopted this standard).
In general, “any person entitled to benefit under the terms of a restrictive
covenant may enforce it.” Ammerman v. Ranches of Clear Creek Cmty. Ass’n, Inc.,
562 S.W.3d 622, 636 (Tex. App.—Houston [1st Dist.] 2018, no pet.) (quoting
Moseley v. Arnold, 486 S.W.3d 656, 662 (Tex. App.—Texarkana 2016, no pet.)
(quoting Girsh v. St. John, 218 S.W.3d 921, 923 (Tex. App.—Beaumont 2007, no
pet.))). “A restrictive covenant is ordinarily enforceable only by the contracting
parties and those in direct privity of estate with them.” Oyoque v. Henning, No. 09-
17-00018-CV, 2018 WL 1527892, at *3 (Tex. App.—Beaumont Mar. 29, 2018, no
pet.) (mem. op.); see Wasson Ints., Ltd. v. Adams, 405 S.W.3d 971, 973 (Tex.
App.—Tyler 2013, no pet.); Ski Masters of Tex., LLC v. Heinemeyer, 269 S.W.3d
662, 668 (Tex. App.—San Antonio 2008, no pet.). “There is a well-established
exception in Texas when a general plan or scheme is adopted by the owner of a
tract for the development and improvement of a property that is divided into streets
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and lots, and where the general plan restricts the uses to which the lots may be put,
a purchaser and his assigns may enforce the covenant against any other purchaser.”
Oyoque, 2018 WL 1527892, at *3; see Hooper v. Lottman, 171 S.W. 270, 272
(Tex. Civ. App.—El Paso 1914, no writ); see also Ski Masters, 269 S.W.3d at 669.
In other words, “[a] property owner may subdivide his property into lots and sell
the lots to separate grantees, imposing restrictions on the use of each lot or parcel
pursuant to a general plan or scheme of development; each grantee may then
enforce the restrictions against each other grantee.” Wasson Ints., 405 S.W.3d at
974. Thus, a homeowner whose property is subject to a restrictive covenant would
ordinarily have standing to sue another homeowner whose property is also subject
to the same restrictive covenant.
Here, homeowners whose property is subject to the Declaration have sued
the Association, which is authorized to enforce the Declaration by its own terms.
We must, therefore, consider the language of the Declaration itself. “Restrictive
covenants are construed using the general rules of contract construction.”
Ammerman, 562 S.W.3d at 636. “Courts must examine the covenants as a whole in
light of the circumstances present when the parties entered the agreement.”
Pilarcik v. Emmons, 966 S.W.2d 474, 478 (Tex. 1998). Restrictive covenants are
“unambiguous as a matter of law if [they] can be given a definite or certain legal
meaning.” Pilarcik, 966 S.W.2d at 478. The Declaration states: “No party having
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the right to enforce this Declaration shall be liable for failure to enforce this
Declaration.” Article XII, Section 15 (Enforcement), Clerk’s R. 236.
The Streits sued the Association alleging claims for negligence and a
declaratory judgment. As to their negligence claim, they allege that they have
suffered an injury due to their neighbors’ construction of the building. In their
amended petition, the Streits alleged that the Association breached a duty of care
that it owed them because the Association “takes upon itself the enforcement of the
deed restrictions [restrictive covenants]” and that it breached this duty by failing to
review the modification request in accordance with the Declaration. The Streits
also alleged that they were damaged by the Association’s breach of its duty of care
because of the structure built by their neighbors:
Plaintiffs have been damaged by the breach of Defendant Grand
Lakes’ [the Association] duties to them as homeowners, because
Defendant Paradis and Waters constructed a massive barn-like
outbuilding in violation of their covenants not to—without a variance,
proper approval, or process. Defendants Paradis and Waters’ structure
disrupts Plaintiffs quiet enjoyment of their property, is an eyesore, and
a nuisance, diminishing the marketability and value of the Plaintiffs’
own property.
The Streits argue that they are personally aggrieved by the nuisance created
by the structure, and they argue on appeal that they were injured by the
Association, “which had the opportunity to enforce the deed restrictions [restrictive
covenants] but refused to.” App. Br. 16.
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The Streits also seek a declaratory judgment invalidating the Association’s
approval of their neighbors’ building and stating that they have “the right . . . to
enforce the [Declaration] against Defendants Paradis and Waters,” and injunctive
relief to require the Association to enforce the Declaration and to prevent any
future violations by the Association. On appeal, the Streits argue that their “request
for declaratory relief is derived precisely from this controversy between
themselves and Grand Lakes. The fact that the very conflict of whether the Streits
can pursue their individual rights under the [Declaration] is the basis for their
request for declaratory relief, and alone confers standing.” App. Br. 17.
Both the negligence claim and the declaratory judgment action rely on
allegations that the Association failed to enforce the Declaration. The Streits’
claimed injury in negligence is the Association’s failure to prevent the construction
of the neighbors’ building by failing to enforce the Declaration. The Streits’
declaratory judgment requests include determinations that the Association failed to
enforce the Declaration.
The parties to this appeal agree that the Association has the right to enforce
the Declaration. The relief sought by the Streits in its claims against the
Association are foreclosed by the plain language of the Declaration. See Article
XII, Section 15 (Enforcement), Clerk’s R. 236 (“No party having the right to
enforce this Declaration shall be liable for failure to enforce this Declaration.”).
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The Streits’ negligence and declaratory judgment claims are not likely to result in a
decision that could redress their alleged injury, which is the use and enjoyment of
their property due to their neighbors’ construction. See Heckman, 369 S.W.3d at
154–55; see Severs v. Mira Vista Homeowners Ass’n, Inc., 559 S.W.3d 684, 700
(Tex. App.—Fort Worth 2018, pet. denied) (holding that UDJA does not “permit
courts to grant declaratory relief when the real issue is determining whether a party
breached an agreement.”). Accordingly, we conclude that the Streits lack standing
to pursue these claims. See Heckman, 369 S.W.3d at 154–55.
To the extent that the Streits seek a judgment that prohibits the Association
from failing to enforce the Declaration in the future, that issue is not justiciable,
and any such judgment would amount to an advisory opinion. See Elec. Reliability
Council of Tex., Inc. v. Panda Power Generation Infrastructure Fund, LLC, 619
S.W.3d 628, 634–35 (Tex. 2021) (courts lack jurisdiction to render advisory
opinions); see Valley Baptist Med. Ctr. v. Gonzalez, 33 S.W.3d 821, 822 (Tex.
2000) (per curiam) (“Under article II, section 1 of the Texas Constitution, courts
have no jurisdiction to issue advisory opinions.”); Patterson, 971 S.W.2d at 443
(“The courts of this state are not empowered to give advisory opinions.”); see also
TEX. CONST. art. II, § 1 (separation of powers).
We overrule the Streits’ second issue.
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Conclusion
We affirm the judgment of the trial court.
Peter Kelly
Justice
Panel consists of Justices Kelly, Hightower, and Guerra.
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