Frank Reed and Karen Reed v. Lake Country Property Owners Association, Inc.

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-17-00136-CV
FRANK REED AND KAREN REED APPELLANTS
V.
LAKE COUNTRY PROPERTY APPELLEE
OWNERS ASSOCIATION, INC.
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FROM COUNTY COURT AT LAW NO. 3 OF TARRANT COUNTY
TRIAL COURT NO. 2013-004939-3
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MEMORANDUM OPINION1
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Appellants Frank and Karen Reed appeal from the trial court’s order
granting summary judgment in favor of appellee Lake Country Property Owners
Association, Inc. (LCPOA), permanently enjoining the Reeds from parking or
storing a recreational camper on their property. As is common in summary-
1
See Tex. R. App. P. 47.4.
judgment appeals, the established standard of review dictates our conclusion.
Accordingly, because the Reeds do not argue that LCPOA failed to conclusively
establish each essential element of its claim and because the Reeds wholly
failed to raise an issue of fact on each element of their pleaded affirmative
defenses through competent summary-judgment evidence, we affirm the trial
court’s summary judgment.
I. BACKGROUND
This is not the first time we have considered the fractious relationship
between the Reeds and their homeowners’ association—LCPOA. Previously,
LCPOA sought to enforce deed restrictions, which (1) were restrictive covenants
running with the properties in Lake Country Estates and (2) prohibited property
owners from parking “trailer[s], house car[s] or other moveable structure[s]” on
“any lot” and from storing “boats, boat trailers or recreational campers . . . on the
premises” in plain view of the streets fronting their residences. Reed v. Lake
Country Prop. Owners Assoc., Inc., No. 02-14-00282-CV, 2016 WL 3655589, at
*1 (Tex. App.—Fort Worth July 7, 2016, no pet.) (mem. op.) (Reed I); see also
Tex. Prop. Code Ann. § 202.001(4) (West 2014) (defining restrictive covenant).
In response to LCPOA’s efforts, the Reeds and other property owners in Lake
Country Estates filed suit against LCPOA, seeking a declaration that LCPOA
either was not authorized to enforce or was estopped from enforcing the
restrictive covenants. See Burkett v. Lake Country Prop. Owners Ass’n, Inc.,
No. 02-13-00090-CV, 2014 WL 1510137, at *1 (Tex. App.—Fort Worth Apr. 17,
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2014, no pet.) (mem. op.). The trial court granted summary judgment in favor of
LCPOA, which we affirmed. Id.
On August 13, 2013, before we issued Burkett, LCPOA filed suit against
the Reeds to enforce the restrictive covenant, seeking to permanently enjoin
them from parking an enclosed utility trailer on their property and from storing a
Sandpiper camper in view of the street fronting their home. Reed I, 2016 WL
3655589, at *2. In June of 2014 shortly after we issued our Burkett opinion, the
Reeds stopped parking the Sandpiper camper on their property. LCPOA sought
summary judgment on their claims, which the trial court granted on August 7,
2014, and enjoined the Reeds from violating the deed restriction regarding
parking or storing trailers or campers. Id. On October 7, 2014, the Reeds began
to park a Cedar Crest recreational camper on their property in view of the street.
On July 7, 2016, we affirmed the summary judgment and permanent injunction
regarding the trailer but we reversed regarding the Sandpiper camper because
the Reeds had raised a fact issue on their pleaded affirmative defense of
limitations in response to LCPOA’s summary-judgment motion.2 Id. at *8.
Specifically, we held that limitations as to the Sandpiper camper began to run no
later than January 5, 2005; thus, the four-year limitations period to enforce the
restrictive covenant expired January 5, 2009, rendering LCPOA’s August 13,
2013 petition arguably time-barred absent tolling. Id. at *5, *8.
2
On remand, the trial court rendered a partial summary judgment in
LCPOA’s favor regarding the trailer based on this court’s mandate.
3
On December 12, 2016, after we issued mandate in Reed I and remanded
LCPOA’s petition to the trial court, LCPOA amended its petition to allege that the
Reeds violated the restrictive covenant by storing a recreational camper in view
of the street “since October 2014.” LCPOA then filed a second motion for
summary judgment, arguing that it conclusively established its claim for
enforcement based on the Reeds’ failure to comply with the restrictive covenants.
In support, LCPOA relied on (1) the Reeds’ warranty deed under which they
acquired the property; (2) the Lake Country restrictive covenants that were filed
in Tarrant County and were incorporated into the warranty deed; (3) Frank’s
deposition admissions that he and Karen violated the restrictive covenants by
parking a recreational camper on their property; and (4) the affidavit of an
LCPOA board member who stated that the Reeds stored their Cedar Crest
camper in view of the street beginning on October 7, 2014, and attached an
October 7, 2014 photograph of the Reeds’ Cedar Crest camper parked on the
Reeds’ property in view of the street as well as several date-stamped
photographs of the Reeds’ property between June 9 and October 7, 2014,
showing no parked camper. In their summary-judgment motion, LCPOA also
addressed the Reeds’ previously asserted limitations defense, which resulted in
this court reversing the summary judgment regarding the Sandpiper camper in
Reed I, and argued that the absence of the Sandpiper camper between June
2014 and October 2014 and the Reeds’ parking of the new Cedar Crest camper
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in view of the street beginning in October 2014 resulted in limitations starting
anew in October 2014.
The Reeds did not respond to LCPOA’s second motion for summary
judgment and did not appear at the summary-judgment hearing. On January 13,
2017, the trial court granted LCPOA’s second motion for summary judgment and
permanently enjoined the Reeds from parking “a trailer, house car or other
moveable structure” and from storing “a boat, boat trailer or recreational camper”
within view of the street fronting the Reeds’ house. The trial court also awarded
LCPOA its attorney’s fees. The Reeds filed a motion for new trial, arguing that
LCPOA failed to conclusively prove that its enforcement of the restrictive
covenants was not barred by laches. The motion was overruled by operation of
law. See Tex. R. Civ. P. 329b(c).
The Reeds again appeal and argue that the trial court’s summary judgment
was in error because (1) LCPOA did not address laches in their second motion,
(2) the Cedar Crest camper did not restart the limitations period because the
Reeds had been engaged in litigation over the storage of a camper, and (3) a
material fact issue existed as to laches and whether LCPOA’s delay was
reasonable after Frank began building improvements in an attempt to comply
with the restrictive covenants. They also argue that the award of attorney’s fees
was erroneous because LCPOA was not entitled to such an award based on its
delay in seeking to enforce the restrictive covenants and because there was a
fact issue regarding reasonableness.
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II. PROPRIETY OF SUMMARY JUDGMENT
A. STANDARD OF REVIEW
Although a permanent injunction normally is reviewed for an abuse of
discretion, we apply the summary-judgment standard of review because the
injunction was issued as the result of a summary-judgment motion. See Jim
Rutherford Invs., Inc. v. Terramar Beach Cmty. Ass’n, 25 S.W.3d 845, 848 (Tex.
App.—Houston [14th Dist.] 2000, pet. denied). In our de novo review of the
summary judgment, we consider the evidence in the light most favorable to the
Reeds, indulge every reasonable inference in their favor, and resolve any doubts
in their favor. See Samson Expl., LLC v. T.S. Reed Props., Inc., 521 S.W.3d
766, 774 (Tex. 2017); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d
211, 215–16 (Tex. 2003). LCPOA was entitled to summary judgment on its
cause of action if it conclusively established all essential elements of its claim as
a matter of law. See Tex. R. Civ. P. 166a(a), (c); City of Hous. v. Clear Creek
Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979); Nichols v. Smith, 507 S.W.2d
518, 520 (Tex. 1974). If LCPOA did so, it will not be prevented from obtaining
summary judgment merely because the Reeds pleaded an affirmative defense.
See Kirby Expl. Co. v. Mitchell Energy Corp., 701 S.W.2d 922, 926 (Tex. App.—
Houston [1st Dist.] 1985, writ ref’d n.r.e.); Clark v. Dedina, 658 S.W.2d 293, 296
(Tex. App.—Houston [1st Dist.] 1983, writ dism’d). An affirmative defense
prevents the granting of summary judgment in favor of LCPOA only if the Reeds
raised an issue of fact on each element of their defense through competent
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summary-judgment evidence. See Brownlee v. Brownlee, 665 S.W.2d 111, 112
(Tex. 1984); ‘Moore’ Burger, Inc. v. Phillips Petroleum Co., 492 S.W.2d 934,
936–37 (Tex. 1972); Songer v. Archer, 23 S.W.3d 139, 142 (Tex. App.—
Texarkana 2000, no pet.).
B. AFFIRMATIVE DEFENSES
In their first three issues, the Reeds argue that laches and limitations
barred LCPOA’s effort to enforce the restrictive covenants, rendering the
summary judgment in error. Both laches and limitations are affirmative defenses,
which the Reeds pleaded in their answer to LCPOA’s petition and argued in their
response to LCPOA’s first motion for summary judgment directed to the trailer
and the Sandpiper camper. See Tex. R. Civ. P. 94; Reed I, 2016 WL 3655589,
at *2. But the Reeds did not respond to LCPOA’s second motion for summary
judgment based on the amended petition and did not proffer competent
summary-judgment evidence raising a genuine issue of material fact on each
element of their affirmative defenses; thus, these affirmative defenses cannot,
standing alone as bare assertions, defeat LCPOA’s right to summary judgment.
See Lujan v. Navistar Fin. Corp., 433 S.W.3d 699, 704 (Tex. App.—Houston [1st
Dist.] 2014, no pet.).
In conclusively establishing the elements of its claim for the purposes of
summary judgment, LCPOA was not required to negate or even address the
Reeds’ affirmative defenses. See, e.g., Exxon Mobil Corp. v. Rincones,
520 S.W.3d 572, 593 (Tex. 2017); Brownlee, 665 S.W.2d at 112. All LCPOA
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was required to do was conclusively establish each element of its claim for
enforcement of the restrictive covenants, which the Reeds do not argue LCPOA
failed to do. Indeed, the Reeds completely failed to argue to the trial court that
LCPOA did not conclusively establish its claim and do not assert on appeal that
LCPOA’s summary-judgment grounds or proof were legally insufficient to
establish its claims for affirmative relief. See Clear Creek Basin, 589 S.W.2d at
678. The Reeds instead solely focus on LCPOA’s failure to negate the Reeds’
affirmative defenses, which was not LCPOA’s burden. See Brownlee,
665 S.W.2d at 112; Marx v. FDP, LP, 474 S.W.3d 368, 377–78 (Tex. App.—San
Antonio 2015, pet. denied). The Reeds’ attempt to raise a genuine issue of
material fact on each element of their affirmative defenses for the first time on
appeal is too little, too late. See Tex. R. Civ. P. 166a(c) (“Issues not expressly
presented to the trial court by written motion, answer[3] or other response shall
not be considered on appeal as grounds for reversal.”). See generally Judge
David Hittner & Lynne Liberato, Summary Judgments in Texas: State and
Federal Practice, 52 Hous. L. Rev. 773, 876 (2015) (“Absent a written response
to a motion for summary judgment, prior pleadings raising laches and the statute
of limitations are insufficient to preserve those issues for appeal.”).
3
“Answer” as used in the summary-judgment rule means an answer to the
motion for summary judgment, not an answer to the petition. See Clear Creek
Basin, 589 S.W.2d at 677.
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Because the Reeds failed to raise genuine issues of material fact on their
affirmative defenses, they are no bar to entry of judgment as a matter of law in
favor of LCPOA based on its motion and proof conclusively establishing their
claim for enforcement, which the Reeds do not dispute on appeal. Accordingly,
we overrule issues one, two, and three.
III. ATTORNEY’S FEES
In their fourth and fifth issues, the Reeds attack the award of attorney’s
fees. Issue four again relies on laches to avoid the award; but the Reeds failed
to raise genuine issues of material fact in the trial court regarding the affirmative
defense as applied to LCPOA’s second motion for summary judgment. We
overrule issue four for the same reasons we overruled issues one, two, and
three.
In their fifth issue, the Reeds contend that “an issue of genuine material
fact was raised as to the reasonableness of the fees claimed.” In support of this
contention, they rely on the fact that the amount awarded in Burnett was less
than that awarded here and point to the arguments they made in response to
LCPOA’s first motion for summary judgment, which was the subject of Reed I.
Although the Reeds cannot rely on evidence they submitted in response to
LCPOA’s first motion for summary judgment to raise a genuine issue of material
fact, they can challenge the sufficiency of the evidence to establish
reasonableness for the first time on appeal even in the absence of a summary-
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judgment response. See Auz v. Cisneros, 477 S.W.3d 355, 359 (Tex. App.—
Houston [14th Dist.] 2015, no pet.).
An award of attorney’s fees is mandatory for a prevailing party in an action
to enforce deed restrictions. See Tex. Prop. Code Ann. § 5.006(a) (West 2014).
The amount of the award, however, is a question of fact for the fact-finder and is
based on statutory factors. See id. § 5.006(b); Jim Rutherford, 25 S.W.3d at 853.
We review that determination for an abuse of discretion. See Fonmeadow Prop.
Owners’ Ass’n, Inc. v. Franklin, 817 S.W.2d 104, 105–06 (Tex. App.—Houston
[1st Dist.] 1991, no writ). In support of their request for attorney’s fees in their
second motion for summary judgment, LCPOA submitted a detailed affidavit that
requested $40,625.50 in attorney’s fees and addressed each of the statutory
factors a trial court must use to determine the amount of the mandatory award.
This evidence supported the trial court’s award to LCPOA of $40,625.50 in
attorney’s fees; therefore, it was not an abuse of discretion. See, e.g., Tien Tao
Ass’n, Inc. v. Kingsbridge Park Cmty. Ass’n, Inc., 953 S.W.2d 525, 531 (Tex.
App.—Houston [1st Dist.] 1997, no pet.); Fonmeadow Prop., 817 S.W.2d at 105–
06. We overrule issue five.
IV. CONCLUSION
We recognize that summary judgment was not proper merely based on the
Reeds’ failure to respond to LCPOA’s traditional motion for summary judgment.
See Rhône-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222–23 (Tex. 1999). But the
Reeds’ affirmative defenses, which are the only grounds they raise on appeal in
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attacking the summary judgment, cannot prevent summary judgment in the
absence of a response and summary-judgment proof raising genuine issues of
material fact on those pleaded defenses. Accordingly, their four appellate issues
relying on their affirmative defenses cannot assail the trial court’s summary
judgment. Finally, the Reeds have failed to show that the evidence was
insufficient to support the award of attorney’s fees in the amount requested by
LCPOA and supported by competent summary-judgment evidence. We affirm
the trial court’s judgment. See Tex. R. App. P. 43.2(a).
/s/ Lee Gabriel
LEE GABRIEL
JUSTICE
PANEL: SUDDERTH, C.J.; GABRIEL and PITTMAN, JJ.
DELIVERED: December 28, 2017
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