Sunday Canyon Property Owners Association, Inc. v. Kathy Brorman, Creekwood Real Estate, LLC, Alyssa Heck, and David Wiggains ( 2024 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-23-00195-CV
SUNDAY CANYON PROPERTY OWNERS ASSOCIATION, INC., APPELLANT
V.
KATHY BRORMAN, CREEKWOOD REAL ESTATE, LLC,
ALYSSA HECK, AND DAVID WIGGAINS, APPELLEES
On Appeal from the 251st District Court
Randall County, Texas
Trial Court No. 76535C, Honorable Ana Estevez, Presiding
February 28, 2024
CONCURRING OPINION
Before QUINN, C.J., and PARKER and YARBROUGH, JJ
While my analysis ultimately leads to the same conclusion as the majority, I
respectfully concur in the result only. The majority’s opinion boils down to this—because
the partial summary judgment order merely “granted” the summary judgment motion
without accompanying decretal language, it adjudicated nothing. This leaves the claims
for declaratory relief pending for disposition and ultimate denial when the trial court
ordered, through the final judgment, that claims not expressly granted in that decree were
denied. Neither Appellant, the “HOA,” nor the Appellees, the “Short-Term Rentals,”
argued this in their briefing. In fact, both parties, in post-submission briefing, argue the
trial court granted the declaratory judgments the Short-Term Rentals sought. However,
in analyzing the HOA’s issues, we conclude the Short-Term Rentals were not entitled as
a matter of law to the relief they sought. Accordingly, while my analysis ultimately leads
to the same conclusion as the majority, I respectfully concur in the result only.
ISSUE ONE—FORM OF THE PARTIAL SUMMARY JUDGMENT ORDER
A. The issue was waived.
The HOA’s first issue complains the trial court erred in granting partial summary
judgment because the trial court’s order did not state the declared relief or clarify the legal
rights of the parties subject to said declarations. But the HOA failed to preserve its first
issue for appeal. Its complaint is to the form of the order, and objections to the form of
an order must be timely raised and ruled upon, or they are waived. TEX. R. APP. P. 33.1;
Bloom v. Graham, 825 S.W.2d 244, 247 (Tex. App.—Fort Worth 1992, pet. denied)
(failure to object to lack of particularity of sanctions order waived error). The record does
not contain a motion, objection, or request from the HOA to modify or amend its partial
summary judgment order. The first time the HOA complained about the lack of
particularity in the order was in its motion for new trial, over two years after the trial court
rendered the order.
The HOA hid behind the partial summary judgment order and waited on its hands
until after the bench trial concluded and the trial court ruled against it. By waiting to
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complain until after a final trial on the merits, the HOA failed to preserve error on its first
issue.
B. Assuming the issue was not waived, the partial summary judgment grants
declaratory relief.
Even if the HOA had preserved its first issue, the partial summary judgment order
was drafted sufficiently to grant declaratory relief. The majority agrees with the HOA,
finding the partial summary judgment order did not contain “decretal language.” However,
examining the order’s language in context, there is not only “decretal language,” but
enough for this Court to glean the intended relief granted.
At its core, a judgment grants or denies relief. Shetewy v. Mediation Inst. of N. Tex.,
LLC (MINT), 624 S.W.3d 285, 288 (Tex. App.—Fort Worth 2021, no pet.) (citation
omitted). Decretal language is the language employed to grant or deny that relief. Id.The Texas Supreme Court has taken the position decretal language does not require any
“‘[t]echnical formality’ nor ‘particular phraseology’ . . . so long as ‘the judgment is
expressed in language which is significant in common understanding and parlance.’” In
re Guardianship of Jones, 629 S.W.3d 921, 925–26 (Tex. 2021).
Here, the trial court’s order grants the relief requested by the Short-Term Rentals
by granting their motion. Although a specific statement of the declarations granted would
have been desirable, there is enough in the summary judgment record and pleadings for
us to “glean” and declare the rights of the parties. Petro Pro, Ltd. v. Upland Res., Inc.,
279 S.W.3d 743, 747–48 (Tex. App.—Amarillo 2007, pet. denied). There is no confusion
among the parties, or any person examining the record, what the intended result was:
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invalidating the HOA’s amendment restricting short-term rentals. The language of the
trial court, while not ideal, qualifies as “decretal language,” and the order adjudicates the
rights of the parties.
The majority opinion relies heavily on Anh Phan v. CL Invs., LLC, No. 01-20-00551-
CV, 2022 Tex. App. LEXIS 346 (Tex. App.—Houston [1st Dist.] Jan. 20, 2022, pet.
denied) (mem. op.) for the proposition a lack of decretal language “adjudicates nothing.”
However, Anh’s procedural posture is distinct from the case at bar. In Anh, the parties
litigated the validity of a promissory note, and the defendant moved for partial summary
judgment and a declaration the promissory note was invalid. The trial court granted the
motion, but the order contained no decretal language declaring the rights of the parties
or a final disposition of the suit.1 The parties subsequently nonsuited their claims. Later,
the plaintiff brought suit again and the defendant received a dismissal based upon res
judicata as the trial court determined the issue of the validity of the promissory note had
been decided in the first lawsuit. On appeal, the First Court of Appeals found the lack of
decretal language in the summary judgment order was not final, and therefore the
plaintiff’s claims were not barred by res judicata. Unlike the case at bar, the trial court in
Anh could have changed its mind regarding the granting of partial summary judgment
until the moment the nonsuit dismissed the case, and there was no finality regarding the
determination of the issues between the parties.
1 The trial court struck the “Adjudged, Decreed, and Ordered” decretal language, and the order
simply stated, “the Court GRANTS the Motion.”
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The present case, unlike Anh, proceeded to trial and a final judgment. The merits
of the issues between the parties were tried and disposed of fully and finally. In the case
at bar, there was no abrupt nonsuit by the parties dismissing the case which prevented
the final disposition of the issues, and the trial court never changed its mind regarding the
partial summary judgment and incorporated it into the final judgment. Anh is inapplicable
to the case at bar.
The HOA’s first issue, even if preserved, should have been overruled. Because I
find the form of the summary judgment was not defective, the HOA’s remaining issues—
whether the trial court erred in granting the partial summary judgment and whether it erred
in awarding damages—requires a full analysis of the merits of the Short-Term Rentals’
motion for partial summary judgment and their claims at trial.
ISSUE TWO—WHETHER THE TRIAL COURT ERRED IN GRANTING THE PARTIAL SUMMARY
JUDGMENT
STANDARD OF REVIEW
We review the trial court’s summary judgment de novo. Valence Operating Co. v.
Dorsett, 164 S.W.3d 656, 661 (Tex. 2005) (citations omitted). When reviewing a
summary judgment, we take as true all evidence favorable to the nonmovant, and we
indulge every reasonable inference and resolve any doubts in the nonmovant’s favor. Id.2
2 The trial court granted all of the HOA’s objections to the Short-Term Rentals’ summary judgment
evidence. Admission or exclusion of evidence in a summary judgment hearing is ordinarily reviewed under
an abuse of discretion standard. See Lujan v. Navistar, Inc., 555 S.W.3d 79, 84 (Tex. 2018). However, the
Short-Term Rentals have not challenged the exclusion of their evidence on appeal.
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ANALYSIS
At the outset, the trial court granted all of the HOA’s objections to the summary
judgment evidence presented by the Short-Term Rentals in support of their motion. We
may only review those portions of the evidence which survived the trial court’s
exclusionary ruling. See Estes v. Spears, No. 07-19-00375-CV, 2020 Tex. App. LEXIS
7498, at *4 (Tex. App.—Amarillo Sep. 16, 2020, no pet.) (mem. op.) (an appellate court
cannot consider summary judgment evidence not presented to the trial court).
We review a motion for summary judgment in light of the live pleading of the
moving party at the time of the filing of the motion. See In the Int. of J.A., No. 02-21-
00140-CV, 2022 Tex. App. LEXIS 4517, at *8 (Tex. App.—Fort Worth June 30, 2022, no
pet.) (mem. op.). The Short-Term Rentals’ live petition at the time of the filing of their
motion requested declarations that the HOA’s restriction on short-term leasing was
unenforceable based upon the following:
(a) the restriction is unenforceable under the theory of promissory estoppel;
(b) the restriction is unenforceable because it is arbitrary, capricious, and
discriminatory;
(c) the restriction is preempted by the Texas Legislature; and
(d) the restriction constitutes a regulatory taking.
However, they moved for summary judgment requesting nine different
declarations:
Declaration No. 1: the restriction is unenforceable because it does not
comply with the recording statute;
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Declaration No. 2: the restriction is unenforceable because the election
approving it did not comply with the governing
documents of the HOA;
Declaration No. 3: the restriction is unenforceable because it restricts
uses previously allowed without notice or consent;
Declaration No. 4: the restriction is unenforceable under the Restatement
of Servitudes;
Declaration No. 5: the restriction is unenforceable because of detrimental
reliance under the equitable theory of promissory
estoppel;
Declaration No. 6: the restrictions are unenforceable because they are
arbitrary, capricious, and discriminatory as applied to
the Short-Term Rentals;
Declaration No. 7: the restriction is preempted by the Texas Legislature;
Declaration No. 8: the restriction is an impermissible regulatory taking;
and
Declaration No. 9: the restriction is prohibited as a retroactive law under
the Texas Constitution.
Because a party cannot be awarded more relief than it requests in its pleadings,
the trial court could only grant relief based upon the requests for declaration stated in the
live pleadings. TEX. R. CIV. P. 301; Mafrige v. Ross, 866 S.W.2d 590, 592 (Tex. 1993),
overruled on other grounds by Lehmann v. Har-Con Corp., 39 S.W.3d 191 (Tex. 2001).
The live pleading requests are reflected in Declaration Nos. 5–8 above, none of which,
as discussed in further detail below, could have been granted by the trial court as a matter
of law.
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A. Declaration No. 5–Promissory Estoppel.
Under this Court’s precedent, promissory estoppel is not recognized as an
independent cause of action. Robbins v. Payne, 55 S.W.3d 740, 747 (Tex. App.—
Amarillo 2001, pet. denied) (promissory estoppel may only be raised as an affirmative
defense). Declaration No. 5 could not serve as a basis for the trial court’s granting
summary judgment as a matter of law.
B. Declaration No. 6–Arbitrary, Capricious, or Discriminatory.
Similarly, the trial court could not, as a matter of law, grant summary judgment
under Declaration No. 6. The Short-Term Rentals argue the restriction on short-term
leasing violates the Texas Property Code. Under section 202.004, the “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.” TEX. PROP. CODE ANN. § 202.004(a). The Short-Term Rentals argued
the passing of the restriction was the “exercise of discretionary authority” which was
“arbitrary, capricious, or discriminatory.” But, as the HOA points out, the statute
contemplates the “discretionary authority” is “concerning a[n existing] restrictive
covenant,” not the passing of a restriction under the governing rules of the dedicatory
instrument.3 Even if the statute were to apply, the Short-Term Rentals’ evidence—
3 See e.g., Dao v. Mission Bend Homeowners Ass’n, 667 S.W.3d 304, 309 (Tex. App.—Houston
[1st Dist.] 2022, no pet. h.) (fountain erected in front yard violated existing “lot maintenance” restriction);
Legacy Ests., LLC v. Signal Hill Estates Homeowners Ass’n, No. 08-22-00134-CV, 2023 Tex. App. LEXIS
4064, at *16–19 (Tex. App.—El Paso June 12, 2023, no pet.) (interpreting existing restrictive covenant for
approval of architectural plans for “arbitrary, capricious, or discriminatory” exercise of authority by
homeowners association); Park v. Escalera Ranch Owners’ Ass’n, 457 S.W.3d 571, 581–82, 598–600 (Tex.
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supporting affidavits from the affected homeowners—were excluded by the trial court,
and there is no evidence before us demonstrating the “arbitrary, capricious, or
discriminatory” actions of the HOA. The trial court could not have properly granted
summary judgment as a matter of law based on Declaration No. 6.
C. Declaration No. 7–Preemption.
Under Declaration No. 7, the Short-Term Rentals requested a declaration
invalidating the restriction based upon a theory of preemption by the Texas Legislature.
Although the Legislature has passed tax code provisions recognizing short-term rentals
for the purposes of assessing hotel taxes, it has not passed, as of yet, any legislation
regulating or prohibiting restrictions against short-term rentals in residential areas with a
homeowners association. TEX. TAX CODE ANN. § 156.001(b); Chu v. Windermere Lakes
Homeowners Ass’n, 652 S.W.3d 899, 904 (Tex. App.—Houston [14th Dist.] 2022, pet.
denied) (citing Teal Trading & Dev., LP v. Champee Springs Ranches Prop. Owners
Ass’n, 593 S.W.3d 324, 339 (Tex. 2020)). The movants were not entitled to summary
judgment under Declaration No. 7.
D. Declaration No. 8–Regulatory Taking.
Lastly, under Declaration No. 8, the Short-Term Rentals were not entitled to a
declaration invalidating the HOA’s restriction on short-term leasing under their theory of
a “regulatory taking.” A regulatory taking occurs when a regulation (1) compels the
App.—Austin 2015, no pet.) (homeowners association’s exercise of enforcing existing restrictions on types
of windows permitted not “arbitrary, capricious, or discriminatory” when homeowner changed the windows
from those approved during construction).
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property owner to suffer a physical invasion of his property, (2) denies all economically
beneficial or productive use of land, (3) does not substantially advance legitimate state
interests, or (4) goes “too far” and “become[s] too much like a physical taking.” Electro
Sales & Servs. v. City of Terrell Hills, No. 04-17-00077-CV, 2018 Tex. App. LEXIS 1868,
at *11 (Tex. App.—San Antonio Mar. 14, 2018, pet. denied) (mem. op.) (citing Sheffield
Dev. Co. v. City of Glenn Heights, 140 S.W.3d 660, 671–72 (Tex. 2004)); cf. Coastal Oil
& Gas Corp. v. Garza Energy Tr., 268 S.W.3d 1, 15 (Tex. 2008) (challenging “rule of
capture” in oil and gas as a regulatory taking). Here, the Short-Term Rentals have
identified no government regulation or interest which has caused the passing of the
restrictions or compelled the passing of the HOA’s restrictions. Accordingly, Declaration
No. 8 could also not serve as a basis for the trial court’s granting summary judgment as
a matter of law.4
ISSUE THREE—DAMAGES
While their requests for declaratory relief failed as a matter of law, the Short-Term
Rentals nonetheless supplemented their pleadings with a breach of contract claim prior
to the bench trial. Although I agree with the majority the Short-Term Rentals could not tie
their breach of contract action to the declaratory relief granted in error to establish liability,
they could have presented evidence of their claim at trial. The theory of breach in their
pleadings stated: “[The HOA] breached the restrictive covenants in effect before the
attempted amendment to ban short-term rentals . . . .” A review of the record does not
4 Moreover, the Short-Term Rentals, even if they were correct in claiming the short-term leasing
ban constitutes a regulatory taking, their only redress is compensation through an “inverse condemnation”
proceeding. City of Hous. v. Carlson, 451 S.W.3d 828, 831 (Tex. 2014).
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reveal any evidence admitted at trial where the HOA breached the restrictive covenants,
vis-à-vis preventing short-term rentals, before it amended the restrictions. Accordingly, I
agree with the majority the Short-Term Rentals did not have any basis for the damages
awarded. I also agree with the majority the award of attorney’s fees must be remanded
for determination under the Declaratory Judgments Act, which permits the award of “costs
and reasonable and necessary attorney’s fees as are equitable and just.” TEX. CIV. PRAC.
& REM. CODE ANN. § 37.009.
CONCLUSION
Although I concur in the result, I respectfully disagree with the reasoning of the
majority. Furthermore, because I find the trial court erred in granting summary judgment
to the Short-Term Rentals, I would also reverse the trial court’s order granting partial
summary judgment and remand for further proceedings in accordance with this opinion.
Alex Yarbrough
Justice
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