Kevin Tarr v. Lantana Southwest Homeowners' Association, Inc.

ACCEPTED
03-14-00714-CV
5333993
THIRD COURT OF APPEALS
AUSTIN, TEXAS
5/19/2015 9:43:10 AM
JEFFREY D. KYLE
CLERK
NO. 03-14-00714-CV
FILED IN
3rd COURT OF APPEALS
COURT OF APPEALS AUSTIN, TEXAS
THIRD JUDICIAL DISTRICT OF TEXAS 5/19/2015 9:43:10 AM
JEFFREY D. KYLE
AUSTIN, TEXAS Clerk
KEVINTARR
Appellant,
v.
LANTANA SOUTHWEST HOlvlEOWNERS' ASSOCIATION, INC.,
Appellee,
REPLY BRIEF OF APPELLEE
On Appeal from the 98th Judicial District Court
of Travis County
Trial Court No. D-1-GN-12-002467
Judge Rhonda Hurley, Presiding
GREGORY B. GODKIN
Texas State Bar No. 24002146
ROBERTS MARKEL WEINBERG BUTLER
HAILEY PC
111 Congress, Suite 1620
Austin, TX 78701
ggodkin@rmwbhlaw .com
Telephone: (512) 279-7344
Fax: (713) 840-9404
Attorneys for Appellee
1
STATEMENT REGARDING ORAL ARGUMENT
Because this case was to be decided on Motions for Summary
Judgment, and the evidence submitted in support thereof and .
Responses thereto,. Lantana believes that the record clearly
demonstrates that the Appellant failed to meet his evidentiary burden,
and that the Appellee Lantana met its burden, in obtaining a Final
Judgment; thus, oral argument is not necessary or required in this
appeal.
RECORD REFERENCES
In this brief, the following record citation forms will be used:
• Clerk's Record will beeited as "CR[page]."
• Supplemental Clerk's Record will be cited as "SCR[page]."
• Appellant Brief will be cited as "TB [page]."
• The Appendix will be cited as "App-[tab] at [page]."
• App-A (Final Judgment)
• App-B (Texas Property Code §5.006)
2
TABLE OF CONTENTS
Statement Regarding Oral Argument ............................................. 2
· Record References ................... ...................... ... ........ .. ... ............... 2
Table of Contents ... ............ ........................................................ 3-4
Index of Authorities ............................... ... ................................ 5-7
State.ment of Facts .......................................... .. ........................ 8-16
Summary of Arguments .......................................................... 16-18
I. Argument
A. The Trial Court Did Not Err in Granting Favor of Lantana on Its
Claim that Tarr was in Violation of the Declaration Use
Restriction ....·................ ....................... ... ... ....... .......... . 19-32
B. Tarr's Claim that Lantana failed to give him Proper Notice of the
Alleged Notice of the Violation of the Declaration was not Plead
and is, therefore, Waived ................................................. 32-34
II. The Trial Court did not Err in Granting Summary Judgment with
Respect to the Mfirmative Defenses that Statutory Law Prohibits
Enforcement of the Deed Restrictions ............................... 34-40
III. A. The Trial Court Did Not Erroneously Grant Summary
Judgment on Tarr's Counterclaims of the Federal Fair Housing
Act and The.Texas Fair Housing Act ............................... 41-46
B. There is no fact issue with respect to whether the residents are
"regarded as disabled" under the third definition of the Fair
Housing Act ................................................................... 4 7-48
IV. The Trial Court Did Not Err in Awarding Attorneys Fees (which
were agreed to by the parties) to Lantana ........................ .49-52
3
Conclusio.n and Prayer ........................................................... 52 .. 53
Certificate of Compliance ........................................................... 54
Certificate of Service ... .......... .. ....................... ..... ... ........ ............ 56
Appendix ................................................................................... 57
4
INDEX OF AUTHORITES
Cases
Abbott v. Equity Group, Inc.; 2 F.3d 613, 619 (5th Cir.l993) ........... 36,43
AHF Cmty. Dev. LLC v. City of Dallas, 633 F. Supp. 2d 287, 298 (N.D. ·
Tex. 2009) ...................................................................... 29, 36, 43
Amedisys, Inc. v. Kingwood Home Healthcare, LLC. 437 S.W.3d 507,
511 (Tex.2014) ............. .. ....... ..... ... ... ............... , .. ... ... .............. 20
Anderson v. New Property Owners' Ass'n of Newport, Inc. , 122 S.W.3d
378, 390 (Tex.App.-Texarkana 2003, pet. denied) .......................... 52
Briargrove Park Property Owners, Inc. v. Riner, 867 S.W.2d 58, 61
(Tex.App.-Texarkana 1993, writ denied) ...................................... 51
· Brookshire Katy Drainage Dist. v. Lily Gardens, LLC, 333 S.W.3d 301,
313 at FN. 3 (Tex.App.-Houston [1st Dist.] 2010, pet. denied) ......... 40
Burch v. Coca-Cola Co., 119 F.3d 305, 316 (5th Cir.1997) ...... .. ......... 48
Cadillac Bar West End Real Estate v. Landry's Restaurant, Inc., 399
S.W.3d 703, 707 (Tex. App.-Dallas 2013, pet. denied) . .................... 33
Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d
265 (1986). I I I I I If It If It• .29, 39,43
If It If tt It If I It ft ff If I It f t t I f f If It f tIt I If I tf I It I If I I I I I I I
City of Houston v. Muse, 788 S.W.2d 419, 424 (Tex.App.-Houston [1st
Dist.] 1990, no writ) ................................................................... 52
Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir.1996)
(en bane) .................. .... ........ ........... .. ............................... . .. .. 36-43
Espinoza v. Victoria Bank Trust Co., 572 S.W.2d 816, 827
(Tex.Civ.App.-Corpus Christi 1978, writ ref'd n.r.e.) ....................... 34
5
Forney 921 Lot Dev. Partners I, L.P. v. Paul Taylor Homes, Ltd., 349
S.W.3d 258, 267-68 (Tex.App.·Dallas 2011 , pet. denied) . ....... .. .. .. .. 33
Gillebaard v. Bayview Acres Ass'n., 263 S.W.3d 342, 347 (Tex.App. -
Houston [1st Dist.] 2007, pet. denied) ... .............. ... ..................... 21
Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 905 (Tex.
2000) . .... .... .. . ·· ···· .............. .......... .. ~ ................. .. .................... ... 24
Inwood North Homeowners' Ass'n, Inc. v. Meier, 625 S.W.2d 742, 743-
44 (Tex.Civ.App.-Houston [1st Dist.] 1981, no writ) ....................... 52
Jim Rutherford Investments, Inc. v. Terramar Beach Community Ass 'n,
25 S.W.3d 845, 853 (Tex.App.-Houstori [14th Dist.] 2000, pet.
denied.) ................ ;.. ,.. ........... ............ ............ ............ ................ .............. .. 51
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994) (en bane)
(per curiam) .......... ...................................... ...... ....... .... ....... .36-43
Lund and Westlake Assisted Living, L.L.C. v. Leible, 1999 WL 546996
*1, *6 (Tex. App. Austin. 1999) ......... .......................................... 29
Macy v. Waste Mgmt., Inc., 294 S.W.3d 638, 650-51 (Tex.App.-Houston
[1st Dist.] 2009, pet. filed) ............. .. ....... .... .... ... ........... ................ 40
Mastin v. Mastin, 70 S.W.3d 148, 154 (Tex.App.-San Antonio 2001, no
pet.) ..................... ....................................................................33
McKey v. Occidental Chem. Corp., 956 F .Supp. 1313, 1318
(S.D.Tex.1997) . ...... ·..................... ..................... ......... .......... 37, 46
Mendoza v. Fidelty & Guar. Ins. Underwriters, Inc., 606 S.W.2d 692,
694 (Tex. 1980) .................. .............................. .......... ... ........ ... 24
MMP, Ltd. v. Jones , 710 S.W.2d 59, 60 (Tex.1986) ... ........................ 20
6
Munson v. Milton , 948 S.W.2d 813, 815 (Tex.App.-San Antonio 1997,
pet. denied). . ................................................................ ......... .. 51
Nash v. Peters, 303 S.W.3d 359, 362 (Tex. App. El Paso 2009, no pet ... 51
Pebble Beach Prop. Owners' Ass'n v. Sherer, 2 S.W.3d 283, 291-92
(Tex.App.-San Antonio 1999, pet. denied) ...................................... . 52
Shoemake v. Fogel, Ltd., 826 S.W.2d 933, 937 (Tex.l992) .... ......... ... 34
Taylor v. Principal Financial Group, Inc., 93 F.3d 155, 164 (5th Cir.),
cert. denied, 519 U.S. 1029; 117 S. Ct. 586, 136 L. Ed. 2d 515 (1996).37,45
Statutes and Regulations
TEX. PROP.CODE ANN. § 5.006(a) ........................ 14, 18, 49, 51, 52, 56
Rules
-, TEX. R. CIV. P. 166a(c) ....................................... 10, 12, 19, 20, 41, 49
'
TEX. R. CIV. P. 166a(i) .. ............................................... 10, 35, 40, 41
TEX.. R. EVID. 902(4) ....................................... ............................. 22
TEX. R. CIV. P . 94 ....................................................................... 34
7
TO THE HONORABLE COURT OF APPEALS:
Appellee, Lantana Southwest Homeowners' Association
("Lantana") files this Reply Brief, pursuant to Texas Rules of Appellate
Procedure 38.2 and 38.6, and would respectfully show unto the Court
the following:
STATEMENT OF FACTS
Appellee Lantana Southwest Homeowners Association, Inc.
("Lantana"), is a not-for-profit homeowner's association for a residential
subdivision known as Lantana Southwest Single Family Properties
located in the city of Austin, Travis County, Texas. (CR6). The Lantana
Southwest subdivision is governed by a Declaration of Covenants,
Conditions, and Restrictions duly recorded in the records of Travis
County, Texas as Document No. 2003181938 (the "Declaration").
(CR10-36). Appellant Kevin Tarr's ("Tarr") property is located within
the Lantana's Southwest subdivision and is subject to the Declaration.
(CR401, ~ 40G; CR404 ~ 49).
Among other restrictions set forth in the Declaration, Article 4.1
requires that the Lots in the subdivision be used solely for single family
use. (CR16, ~ 4.1). The Declaration defines "single family'' as "any
8
number of persons related by blood, marriage or adoption, and shall
also include foster children and domestic servants." (CR16, ~ 4.1).
Article 4.1 of the Declaration further prohibits a building, outbuilding
or portion of either to be built on a Lot for use as income-producing
property (and uses as an example a lease to a tenant who does not
occupy the entire Lot). (CR16, ~ 4.1).
Specifically, the use Residential Use Restriction reads as follows:
4.1 Residential Use. All Lots shall be improved and used
solely for single family residential use, inclusive of a garage,
fencing and such other Improvements as are necessary or
customarily incident to residential use. No building,
outbuilding or portion of either may be built on a Lot for use
as income-producing property (i.e., for lease to tenants who
do not occupy an entire Lot). A "single family" shall be
defined as any number of persons related by blood, marriage
or adoption, and shall also include foster children and
domestic servants. This Declaration shall not, however,
exclude from a Lot any person who is authorized to so
remain by any state or federal law. If this Article 4, Section
4.1 is held to be in violation of any law, this Article 4, Section
4.1 shall be interpreted to be as restrictive as possible in
order to preserve as much of the original intent of this
Section as is permitted by law. (CR16, ,-r 4.1).
On August 14, 2012, Lantana sued Tarr for breaching the
Declaration after he converted his single family property into a duplex,
and then began renting his home as an income-producing property to
persons not related by blood, marriage, or adoption. (CR5-49).
9
In response to the lawsuit brought by Lantana, Tarr filed an
Answer with a litany of affirmative defenses, including the affirmative
defense · that the Federal and Texas Fair Housing Acts prohibits
-,
!
, Lantana from enforcing the Declaration, specifically the Residential
Use Restriction. (CR51-84). Tarr also filed a Counterclaim -asserting
that, by filing the suit and by interfering with Tarr's leasing, Lantana
violated the Federal and Texas Fair Housing Act. (CR81, ~IV.).
Lantana's First Motion for Partial Summary Judgment
On August 26, 2013, over a year after the suit was initially filed,
Lantana moved for Partial Summary Judgment on both TRCP 166a(c)
Traditional and TRCP 166a(i) No-Evidence grounds as to Tarr's
affirmative defenses. (CR168-285). In its No-Evidence Motion for
Partial Summary Judgment, Lantana argued that Tarr had the burden
of establishing a "handicap" under the Federal Fair Housing Act and a
"disability" under the Texas Fair Housing Act to support his affirmative
defenses and that, in spite of over a year of litigation and discovery, he
failed to meet his burden and the No-Evidence Summary Judgment
should be granted in Lantana's favor as to the Fair Housing Act
j affirmative defenses. (CR170-173). In his Response, Tarr submitted an
l
·i
10
.Mfidavit wherein he stated all tenants are required to have a
"handicap" as defined by the Federal Fair Housing Act in that they are
required to have a drug or alcohol addiction for which they are seeking
"recovery," and that all tenants are required to have a "disability" as
defined by the Texas Fair Housing Act, in that they are required to
have a drug or alcohol addiction for which they are seeking recovery.
(CR294-295).
The Court (Judge Stephen Yelenosky) reviewed the briefing
provided by Lantana and Tarr, reviewed Tarr's affidavits, heard
I
..
arguments, and ultimately ruled that Tarr had failed to meet his
required burden in producing evidence of his affirmative defense of the
Federal and Texas Fair Housing Act because he had not produced the
required evidence necessary to establish that his 1·enters were afforded
protections by the Acts. (CR297). The Court, therefore, granted the No-
Evidence Summary Judgment against Tarr's affirmative defenses of the
Federal and Texas Fair Housing Act. (CR297).
Lantana's Second Motion for Partial Summary Judgment
Lantana filed a second Motion for Partial Summary Judgment on
January 1, 2014. (CR298-416). The Motion for Partial Summary
11
' Judgment included a TRCP 166a(c) Traditional Summary Judgment as
to Tarr's counterclaims for the Federal and Texas Fair Housing Act.
(CR298-416). The other appeal-relevant portion of the Partial
Summary Judgment sought a TRCP 166a(c) Traditional Summary
Judgment as to Lantana's breach of Declaration claim against Tarr.
(CR298-416). Lantana also filed a Reply Brief to Tarr's Response,
which was also considered by the Court. (CR420-495; CR496-497).
The bases for the Traditional Motion for Summary Judgment as to
Tarr's Federal and Texas Fair Housing Act causes of action were two-
fold: first, no fact issue then existed as to said claims since the trial
court had already ruled that the renters were not afforded protections
under the Acts since they were not handicapped or disabled as defined
by the Acts. (CR298-301). Secondly, even if the court had not already
' ruled on the issue, summary judgment was still proper because Tarr
had (once again) failed to produce the required evidence in his Response
to the Second Motion for Partial Summary Judgment that the renters
were qualified individuals falling within the afforded protections of the
Acts because they are handicapped or disabled, a required element of
12
establishing the Fair Housing Act causes of action (for which he has the
burden). (CR430-432).
The Court (Judge Eric Shepperd) reviewed the Motion, Tarr's
Response, the Reply, as well as all evidence presented by Tarr in his
attempt to establish the required element of proof that the residents
were handicapped or disabled as defined . by the Acts, and he heard
argument of counsel, and subsequently granted partial summary·
judgment as to Tarr's Counterclaims for the Federal and Texas Fair
Housing Acts. (CR497 -498).
Lantana further sought a Traditional Summary Judgment as to
its breach of Declaration claim against Tarr in its second Motion for
•
Partial Summary Judgment. (CR304-305). In the motion, Lantana
established all of the required elements to prove that ~4.1 Use
Restriction of the Declaration was breached by Tarr. (CR304-305;
CR428-430). Because Lantana was able to establish all of the elements
of a breach of the Declaration, the trial court granted Lantana's Second
Motion for Partial Summary Judgment as to the breach of the
Declaration. (CR496).
Lantana's Motion for Final Summary Judgment
13
On June 12, 2014, Lantana filed a Motion for Final Summary
Judgment whereby it argued that, because Tarr's affirmative defenses
and counterclaims, including the affirmative defenses and
counterclaims of the Federal and Texas Fair Housing Act, were all
subject to prior Motions for Summary Judgment, and because the trial
court had ruled as a matter of law that Tarr was in breach of the
Declaration, it was entitled to a Final Summary Judgment seeking a
permanent injunction consistent with the Declaration. (CR499-605).
Lantana also sought its attorneys' fees pursuant to the Texas Property
Code §5.006. (CR499-605).
Tarr filed a Response and a Motion for Reconsideration. (CR606-
613). Tarr's Response focused on the attorney's fees, but he did not
attempt to refute Lantana's right to an injunction. (CR606-613). Tarr
failed to set the Motion for Reconsideration for hearing as required by
the rules, as such, the Court did not entertain the motion. (CR617).
On July 30, 2014, the Court (Judge Gisela D. Triana) granted
Lantana's motion in part only, ordering that Tarr be "commanded to
desist and refrain from breaching the Declaration of Covenants,
Conditions, Restrictions for Lantana Southwest single family
14
properties." (CR617). The Court did not grant Lantana's request for
attorney's fees because Judge Triana felt a fact issue existed, thereby .
precluding summary judgment. (CR617-620).
The Final Judgment
On September 5, 2014, the Court (Judge Amy Clark Meachum)
entered a Final Judgment which incorporated the orders from the
three-partial summary judgments. (SCR70-72). The Final Judgment
(which she termed "Agreed") also incorporated an agreement by and
between counsel for Lantana and Tarr whereby the parties agreed that
$88,000.00 are reasonable and necessary fees for the prosecution and
defense of the lawsuit filed by Lantana up to the signing of the Agreed
Final Judgment, and further agreed that $35. 000.00 are reasonable and
1
necessary fees to be paid to Lantana should Tarr file an unsuccessful
appeal of the cause to the Texas Court of Appeals. (SCR70-72).
This Final Judgment contained an error regarding a date of the
first partial summary judgment, which was corrected when, on October
28, 2014, the trial court (Judge Rhonda Hurley) entered its Final
Modified Judgment. (CR621-624).
i
. j
l
'
15
Tarr filed a Motion for New Trial which extended the trial court's
preliminary power, but never set said Motion for New Trial for hearing
so it was never considered by the trial court. (SCR73-85).
Tarr filed a Notice of Appeal on November 17, 2014. (CR625~627).
SUMMARY OF ARGUMENT
In his Appellate Brief, Tarr begins the "Argument" section by
stating that "the disjointed and piecemeal manner in which the issues
were presented to five different judges of the Travis County trial bench
confused the issues in the trial court and complicates the presentation
of the issues on appeal." (TB Pg. 16). This position could not be further
from the truth, both factually and legally. Tarr's case, and this appeal,
begins and ends with the fact that after over a year of discovery and
litigation, Tarr failed to meet his r~quired evidentiary burden in
proving that the Federal and Texas Fair Housing Acts afforded his
renters protections because he was unable to produce the required
evidence to establish a "handicap" or "disability" in responding to
Lantana's First and Second Motions for Partial Summary Judgment.
Tarr had two different opportunities to meet his required evidentiary
burden in responding to the Motions for Partial Summary Judgment,
16
and he had two other opportunities to argue the required evidence at a
Motion for Reconsideration and his Motion for New Trial, neither of
which he even set for a hearing; thus, they were never considered by the
trial court. At all opportunities, Tarr failed to meet his burden.
Again, the issue is a simple one: Tarr failed to meet his required
burden of producing evidence to meet the most critical element of his
Federal and Texas Fair Housing Acts affirmative defenses and causes of
action. All of the well-respected Travis County Judges who reviewed
the briefing and evidence presented followed the law and ruled
correctly.
Because Tarr failed to meet his required evidentiary burden of
proof, all of the rhetoric set forth in both his Responses to the Motions
for Partial Summary Judgments, and now in his Appellate Brief, that
the Fair Housing Acts protect group homes for persons falling within
the purview of the Federal and Texas Fair Housing Act is of absolutely
no relevance as Tarr failed to establish that the renters are qualified
individuals afforded protections under the Acts. This case has never
been about whether the Fair Housing Acts affords protections to
qualified individuals. That is not subject to dispute nor disagreed to by
17
Lantana. The issue is Tarr's failure to meet his required evidentiary
burden in establishing the applicability of the Federal and Texas Fair
Housing Acts, which he failed to do at the trial court level.
What was left in the case after Tarr failed to meet his required
burden of establishing the applicability of the Fair Housing Act
protections was an admitted breach by Tarr of the Use Restriction
Declaration.
There were no fact issues left, as Lantana had proven, as a matter
of law, that Tarr was in breach of the Declaration. The injunction was
proper under the Texas Property Code, and the attorneys' fees that Tarr
is complaining of in his appeal were actually agreed to in the Final
Judgment. They were also required (as a matter of law) under §5.006 of
the Texas Property Code.
As set forth below, all of the trial court judges carefully looked at
the requirements that both Tarr and Lantana had under the law and,
following a review of each parties' respective burdens, the issues
presented, the law, and the evidence, properly ruled in Lantana's favor.
18
I.
ARGUMENT
A. The Trial Court did not Err in Granting Summary
Judgment in Favor of Lantana on its Claim that Tarr was in
Violation of the Declaration's Use Restriction
. In its Second Motion for Partial Summary Judgment, Lantana
sought a TRCP 166a(c) Traditional Summary Judgment as to Tarr's
Counterclaims of his Federal and Texas Fair Housing Act causes of
action, as well as a Traditional Summary Judgment as to Lantana's
breach of Declaration claim against Tarr. (CR298~416).
The focus of the "Issue Presented" in this appeal is whether the
trial court properly granted summary judgment as to Lantana's breach
of Declaration cause of action against Tarr, which is separate and apart
from the Motion for Partial Summary Judgment as to Tarr's Fair
Housing Act counterclaims as the Texas Rules of Civil Procedure
specifically allow for a party seeking to recover upon a claim made,
anytime after the adverse party has appeared or answered, to move for
a summary judgment in its favor upon all or any part of its claims. See
TRCP 166a(c).
19
At the time Lantana filed it Motion for Partial Summary
Judgment as to its breach of Declaration cause of action against Tarr,
all of Tarr's affirmative defenses, including his affirmative defenses of
the Federal and Texas Fair Housing Act, were no longer viable in that
the trial court had previously granted a No-Evidence Motion for Partial
Summary Judgment as to those affirmative defenses. (CR297).
Because there were no viable, live affirmative defenses as to
Lantana's breach of Declaration cause of action, its only burden was to
show (1) that there was no genuine issue of material fact and (2) that it
was entitled to judgment as a matter of law. See TRCP 166a(c);
Amedisys, Inc. u. Kingwood Home Healthcare, LLC. 437 S.W.3d 507,
511 (Tex.2014). To prove it was entitled to summary judgment,
Lantana was required to establish each element of its claim as a matter
of law. MMP, Ltd. u. Jones, 710 S.W.2d 59, 60 (Tex.1986).
The specific portion of the Declaration the subject of Lantana's
cause of action and Motion for Partial Summary Judgment was
paragraph 4.1 of the Declaration, "Residential Use," which reads as
follows:
4.1 Residential Use. All Lots shall be improved and used
solely for single family residential use, inclusive of a garage,
20
fencing and such other Improvements as are necessary or
customarily incident to residential use. No building,
outbuilding or portion of either may be built on a Lot for use
as income-producing property (i.e., for lease to tenants who
do not occupy an entire Lot). A "single family" shall be
defined as any number of persons related by blood, marriage
or adoption, and shall also include foster children and
domestic servants. This Declaration shall not, however,
exclude from a Lot any person who is authorized to so
remain by any state or federal law. If this Article 4, Section
4.1 is held to be in violation of any law, this Article 4, Section
4.1 shall be interpreted to be as restrictive as possible in
order to preserve as much of the original intent of this
Section as is permitted by law. (CR16, ~ 4.1).
At the time Lantana presented its Motion for Partial Summary
Judgment as to the breach of Declaration, meeting its burden in
establishing all the elements of the cause of action was relatively simple
as the evidence (through admissions by Tarr and additional undisputed
facts) established all of the required elements: the existence of a valid
and enforceable Declaration, and the breach of said valid and
enforceable Declaration.
To prevail on its Motion for Partial Summary Judgment as to the
breach of Declaration, Lantana had the burden of proof to show that the
restriction was valid and enforceable. Gillebaard v. Bayview Acres
Ass'n., 263 S.W.3d 342, 347 (Tex.App. -Houston [1st Dist.] 2007, pet.
denied).
21
Proof of a valid Declaration was met by Lantana. Specifically, a
certified copy of the Declaration of Covenants, Conditions, and
Restrictions for Lantana Southwest single family properties was
--,
I
;
submitted to the Court as evidence in support of Lantana's Motion for
Partial Summary Judgment prior to the Court's ruling and hearing on
said motion. (CR433-473). Pursuant to Texas Rules of Evidence 902(4),
this certified copy was self-authenticating.
Lantana further proved the Declaration was valid and enforceable
to Tarr's Property, and that he was aware of the residential Use
Restriction. Specifically, Tarr testified that the Declaration in question
was applicable to his property:
Question: OK. When you purchased the home, were you
aware that there were
Deed Restrictions applicable to that property?
Answer: Yes
Question: OK. And I'm not going to go through all of them,
but the one that is particularly important in our
case would be the fact that it is a single family
use deed restricted community. Did you
understand that at the time you purchased the
home.
Answer: Yes.
22
Question: OK. Were you provided documents from the
Seller that showed you Declarations, etc., that
this was a single family residence deed restricted
community?
Answer: Yes.
Question: Okay. What does that mean to you?
Answer: That it1s a house to be used for single family.
(CR414 Pg. 13, ll. 6-22).
Tarr also wrote a self serving letter to his neighbors in response to
their concern that one of his renters was a registered sex offender for
child molestation and, in the letter, he specifically says that his
property is subject to single family use restrictions. (CR366). Thus,
there is no fact issue as Tarr admits that the Use Restriction is valid
and enforceable.
Secondly, Tarr's own counterclaim specifically states that he is a
"member/shareholder of Lantana," and he even tries to argue (albeit
without merit) that "Lantana Southwest's own deed restrictions protect
Tarr's sober house group home." (CR404, ~ 49; CR401, ~ 40G). Further,
the fact that the Declarations are valid and enforceable, and that Tarr's
property is subject to said Declarations, is not subject to Tarr's appeal
-· .
J
as, in his Appellate Brief, he specifically represents that "[his] property
23
is located within the Lantana Southwest subdivision and is subject to
homeowners' association deed restrictions," including the Residential
Use Restriction the subject of Lantana's breach of Declaration cause of
l action against him. (TB Pg. 4-5).
All of these statements constitute judicial admissions and the fact
that the Declaration is valid and applicable to Tarr's property is
conclusively established. As such, there is no fact question regarding
the same. See Horizon!CMS Healthcare Corp. v. Auld, 34 S.W.3d 887,
905 (Tex. 2000); Mendoza v. Fidelty & Guar. Ins. Underwriters, Inc.,
606 S.W.2d 692, 694 (Tex. 1980).
The next required element, that Tarr breached , 4.1 of the
Declaration, was also easily met as a matter of law because he had
admitted that he was violating the Use Restriction by renting rooms to
groups of unrelated individuals. Specifically, in Tarr's own pleadings,
he states that "(a]s Tarr's August 9. 2012 letter and advertisement
reflect, Tarr is operating a sober house, group home ... " (CR385). This is
a judicial admission establishing the required element. See Horizon at
905; See Mendoza at 694.
24
Tarr also testified at the time of his deposition that he currently
had ten renters, but at one point had a total of sixteen, and that he was
~arning income of $6,000.00 to $8,000.00 per month.
-.
8 Q. Is the Oteka residence or any entity related to
9 the Oteka residence set up or associated in any way with
10 a not for profit?
11 A. No.
12 Q. How much money on average do you gross each
13 month from the recovery home?
14 A. It fluctuates.
15 Q. On average.
16 A. I don't know exactly.
17 Q. How much do you charge residents?
18 A. Currently between 6- and 800 per month.
19 Q. And you currently have 10?
20 A. Approximately, yes.
21 Q. So, that's 6,000 to $8,000 a month?
22 A. That's correct.
23 Q. At one point you had 16?
25
24 A. Yes.
(CR415 Pg. 73, ll. 8-24).
Clearly, there is no genuine issue of material fact that his Lot is
being utilized for multi-family residential use, which is in direct
violation of the Residential Use language: "[a]ll Lots shall be approved
and used solely for single family residential use," and "single family
shall be defined as any number of persons related by blood, marriage or
adoption, and shall also include foster children and domestic servants."
(CR16, ~ 4.1).
Further, his single family property home has been modified for
use as income-producing duplex. Specifically, Tarr discusses his "brand
new," (one month old) duplex in an advertisement:
"Why live in a smaller or older house for the same price as a
brand new, (one month old) custom built, 5,400 sq. ft.
mansion with a 2,800 sq. ft. completely private duplex?
Rental house is 100% private duplex with a separate private
front door and private garage door entrances and is sealed
off from the downstairs house." (CR374). "This is one of the
most affordable, upscale townhomes on Craigslist! It is a
custom built, brand new, 1.5 year old, 2 story house that is
valued at $525,000.00 that is divided between an upstairs
and downstairs with two complete houses inside a 5,400 sq.
ft. mansion. Currently, the upstairs townhouse is for rent."
(CR372).
26
Clearly, Tarr's home is in violation of the ~ 4.1Residential Use
restriction language as well: "no building, out building or portion of
either may me built on a Lot for use as income-producing property (i.e.,
for lease to tenants who do not occupy an entire Lot." (CR16, ~ 4.1).
The trial court looked at all of the evidence presented, including
Plaintiffs own pleadings and admissions, whereby he admits that he is
violating the Declaration's Use Restriction, and ruled in Lantana's favor
for the breach of Declarations cause of action against Tarr. (CR496).
In his Appellant Brief, Tarr spends a considerable amount of time
-~
attempting to convince this Court that what is a clear breach of the
Declaration is not, in fact, a breach. Specifically, his first focus is his
attempt to assert that Lantana failed to meet its summary judgment
burden in establishing a breach of the Declaration by focusing on his
defunct affirmative defenses of the Federal and Texas Fair Housing Act.
(TB 21-24). Specifically, he argues that the Fair Housing Acts protect
group homes. (TB21). This is not in dispute. Lantana has not in the
past, nor is it now, asserting that the Federal and Texas Fair Housing
Acts when applicable to a particular property, i.e., after those
claiming protections under the Acts meet their burden of proof in
27
establishing a handicap or disability, afford certain protections against
single family use restrictions.
What Tarr is wholly and completely missing in his position as it
~
i
I relates to the Motion for Partial Summary Judgment granted in
Lantana's favor against Tarr for the breach of Declaration cause of
action is that Tarr had already lost a No-Evidence Motion for Partial
Summary Judgment as to his Federal and Texas Fair Housing Act
affirmative defenses and they were no longer a viable defense to
Lantana's breach of Declaration Motion for Partial Summary
Judgment. (CR412).
Tarr then attempts to argue in his Appellant Brief that it was
Lantana's burden to prove a negative: that Tarr's use of the Property
does not qualify as a group home for handicapped persons because 'If 4.1
of the Declaration specifically states "this Declaration shall not,
however, exclude from a Lot any person who is authorized to still
remain by any state or federal law." (TB23-24). This argument has no
merit. This portion of the Declaration simply says that if a person is
afforded protections under the law, like under the Fair Housing Act,
those protections trump the Use Restriction. But to be afforded these
28
protections, a person claiming federal protections must prove they fall
within the purview of the protections, which Tarr failed to do. It is the
burden of the person claiming protections to prove they are qualified
individuals falling within the purview of those protections. See AHF
Cmty. Dev. LLC v. City of Dallas, 633 F. Supp. 2d 287, 298 (N.D. Tex.
2009); Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91
L. Ed. 2d 265 (1986).
Once a violation of deed restrictions are shown, the burden shits
to the person claiming Fair Housing Act protection to provide a defense
on his or her failure to comply with the deed restriction. See Lund and
Westlake Assisted Living, L.L.C. v. Leible, 1999 WL 546996 *1, *6 (Tex.
App. Austin. 1999) (not designated for publication). Tarr had already
argued and lost his claim that the renters fell within the purview of
protections afforded by the Fair Housing Acts, so this defense was no
longer viable and all Lantana needed to prove was a breach of the
Declaration, which it clearly did giving rise to summary judgment.
Further, it is without dispute that Tarr modified his single family
residence and converted it to a duplex for the purposes of renting it out
to a large number of unrelated individuals, thereby breaching another
29
portion of the Declaration which states "no building, out building or
portion of either may be built on a Lot for use as income-producing
' property (i.e., for lease to tenants who do not occupy an entire Lot.")
--1
(CR16, , 4.1) . In his appellate brief, Tarr attempts to avoid the clear
breach of this portion of the Declaration by arguing that the use
restriction is an attempt to prohibit the construction of an improvement
for the purposes of producing income and that there is no proof his
property is a duplex. (TB24-27, TB28-29).
It is frankly unclear as to why Tarr would attempt this argument
as Tarr's own advertisements from Craigslist, that were presented as
evidence by Lantana in its Motion for Partial Summary Judgment
specifically, say that his single family residence has been built into a
"rental house" that is a "100% private duplex with a separate
private front door and private garage door entrance and is
sealed off from the downstairs house." (CR37 4).
There are numerous advertisements by · Tarr on Craigslist
whereby he discusses his "brand new," (one month old) duplex:
"Why live in a smaller or older house for the same price as a
brand new, (one month old) custom built, 5,400 sq. ft.
mansion with a 2,800 sq. ft. completely private duplex?
Rental house is 100% private duplex with a separate private
30
front door and private garage door entrances and is sealed
off from the downstairs house." (CR37 4). "This is one of the
most affordable, upscale townhomes on Craigslist! It is a
custom built, brand new, 1.5 year old, 2 story house that is
valued at $525,000.00 that is divided between an upstairs
and downstairs with two complete houses inside a 5,400 sq.
ft. mansion. Currently, the upstairs townhouse is for rent."
(CR372).
Clearly, in addition to violating the single family restriction on the
unrelated renters renting rooms in the home) Tarr also violated the
Declaration by building a duplex for use as an income-producing
property (i.e., for lease to tenants who did not occupy an entire Lot) (CR
16 ~ 4.1).
Tarr also testified that he generates income of $6,000.00 to
$8,000.00 per month from the rentals. (CR304). In his Appellate Brief,
Tarr focuses on "profits" (or lack thereof) as opposed to "income" in
arguing that there is no proof of a breach and states that Lantana has
misrepresented Tarr's testimony in its motion when it stated "that this
is a for-profit endeavor in which he is making at least $6,000.00 to
$8,000.00 per month." (TB24-25). Tarr then admits in his Appellate
Brief (thereby once again proving Lantana's point) that Tarr has "gross
collections between $6,000.00 and $8,000.00 each month." (TB25).
W ordsmithing as between "gross collections" and "profit" does not
31
matter legally as Tarr admitted in his deposition, and now admits in his
own Appellate Brief, that he was receiving income of at least $6,000.00
to $8,000.00 per month. (CR415; TB25).
-~
12 Q. How much money on average do you gross each
13 month from the recovery home?
14 A. It fluctuates.
15 Q. On average.
16 A. I don't know exactly.
17 Q. How much do you charge residents?
18 A. Currently between 6- and 800 per month.
19 Q. And you currently have 10?
20 A. Approximately, yes.
21 Q. So, that's 6,000 to $8,000 a month?
22 A. That's correct.
23 Q. At one point you had 16?
24 A. Yes.
(CR415 Pg. 73, ll. 12-24).
This testimony, coupled with the fact that he has admitted that
his home is a duplex that is "income producing" and that it is being
32
I
.J
rented to unrelated individuals not occupying the entire Lot,
demonstrates that there is no fact issue, and that Lantana proved as a
matter of law at the trial court level that Tarr was in breach of the
-;
1 Declaration (twice) giving rise to the summary judgment.
B. Tarr's claim that Lantana failed to give him proper
notice of the alleged violations of the Declaration was
not plead and it is, therefore, waived.
Tarr argues that section 12.8 of the Declaration requ1res that
Lantana give 10-days notice of an alleged violation of the deed
restriction before taking any action to enforce said restrictions. (TB46;
! CR34, ~12.8). Tarr argues that Lantana's alleged failure to give him
-~
proper notice is "fatal" to Lantana's claim. (TB47).
Courts have consistently held that lack of notice is an affirmative
i defense." Cadillac Bar West End Real Estate v. Landry's Restaurant,
Inc., 399 S.W.3d 703, 707 (Tex. App.-Dallas 2013, pet. denied). See, e.g.,
Forney 921 Lot Dev. Partners L L.P. v. Paul Taylor Homes, Ltd. , 349
S.W.3d 258, 267-68 (Tex.App.-Dallas 2011, pet. denied) (failure to give
required statutory notice is affirmative defense); Mastin v. Mastin, 70
S.W.3d 148, 154 (Tex.App.-San Antonio 2001, no pet.) (failure to give
notice of intent to accelerate contractual alimony payments is
33
affirmative defense); Espinoza v. Victoria Bank Trust Co., 572 S.W.2d
816, 827 (Tex.Civ.App.-Corpus Christi 1978, writ ref'd n.r.e.) (failure to
give notice of intent to accelerate maturity of promissory note is
affirmative defense).
An affirmative defense is waived if it is not pleaded. See Shoemake
v. Fogel~ Ltd., 826 S.W.2d 933, 937 (Tex.l992) (citing Tex. R. Civ. P. 94).
Tarr failed to plead said affirmative defense. (CR51-84). Because
Tarr failed to plead the affirmative defense of notice, it is waived and is
of no defense to Lantana's breach of Declaration cause of action.
II.
The Trial Court Did Not Err in Granting Summary Judgment
with Respect to the Affirmative Defenses that Statutory Law
Prohibits Enforcement of the
Deed Restrictions
On August 26, 2013, over a year after the suit was initially filed,
Lantana moved for partial summary judgment on both traditional and
no-evidence grounds as to Tarr's affirmative defenses. (CR168-285). In
its motion, Lantana argued that Tarr had the burden of establishing a
"handicap" under the Federal Fair Housing Act and a "disability" under
the Texas Fair Housing Act and that, in spite of over a year of litigation
34
and discovery, he failed to meet his burden and summary judgment
should be granted in Lantana's favor. (CR170-173).
1; In his Response, the only "evidence" submitted by Tarr in an
- -i
attempt to meet his burden under the Fair Housing Acts· and under
TRCP 166a(i) was an affidavit that said nothing more than the
following as it relates to a "handicap" and "disability": "all tenants of my
group home are required to have a "handicap" as defined by the Federal
Fair Housing Act, and they are required to have a drug or alcohol
addiction for which they are seeking recovery;" "all tenants of my group
home are required to have a "disability" as defined by the Texas Fair
Housing Act, in that they are required to have a drug or alcohol
addiction for which they are seeking recovery." (CR294-295).
Even under the most liberal standard, Tarr's affidavit woefully
fails to provide any evidence necessary to meet his evidentiary burden
in response to the No-Evidence Motion for Partial Summary Judgment
as to his Fair Housing Act affirmative defenses.
A party claiming protections under the Fair Housing Act will bear
the burden at trial on its Fair Housing Act claims, and a defendant to
those claims can obtain summary judgment by pointing the court to the
35
absence of evidence of an essential element of the claim in question. See
AHF Cmty. Dev. LLC v. City of Dallas, 633 F. Supp. 2d 287, 298 (N.D.
Tex. 2009); Celotex Corp. v. Catrett, 4 77 U.S. 317, 323, 106 S. Ct. 2548,
j
···;
91 L. Ed. 2d 265 (1986). Once it does so, the party claiming Fair Housing
Act protections must go beyond its pleadings and designate specific
facts demonstrating that there is a genuine issue for trial. Celotex, 106
S. Ct. 2548; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994)
(en bane) (per curiam). (Fitzwater, J.). Summary judgment is
mandatory if the Fair Housing Act claimant fails to meet his or her
burden. See Little, 37 F.3d at 1076.
Mere assertions of a factual dispute unsupported by probative
evidence will not prevent summary judgment. See Celotex, 106 S. Ct.
I 2505; Abbott v. Equity Group, Inc. , 2 F.3d 613, 619 (5th Cir.1993). In
-,
other words, conclusory statements, speculation and unsubstantiated
assertions will not suffice to defeat a motion for summary judgment.
Douglass v. United Servs. Auto. Ass 'n, 79 F.3d 1415, 1429 (5th Cir.1996)
(en bane).
Tarr's affidavit, which simply says that his residents are afforded
protections under the Federal and Texas Fair Housing Acts because
36
they "have a drug or alcohol addiction for which they are seeking
recovery," is not evidence required to prove protections afforded under
the Acts.
---,'
"The determination of whether an individual has a disability is
not necessarily based on the name or diagnosis of the impairment the
person has, but rather on the effect of that impairment on the life of the
individual." See Taylor v. Principal Financial Group, Inc. , 93 F.3d 155,
164 (5th Cir.), cert. denied, 519 U.S. 1029, 117 S. Ct. 586, 136 L. Ed. 2d
515 (1996). Therefore, a person claiming to be disabled because of
alcoholism must still establish that he satisfies the requirements of the
definition of a disability under the ADA and its accompanying
regulations. McKey v. Occidental Chem. Corp., 956 F. Supp. 1313, 1318
(S.D.Tex.1997). (addressing alcoholism under the ADA).
Whether impairment substantially limits a major life activity
must be determined, not by how "disabling" the impairment sounds, but
rather by the impact of the impairment on the individual. I d.
Tarr's statement that his residents are required to have a drug or
alcohol addiction is nothing more than a statement that they have
"impairment," but it offers none of the required evidence to establish a
37
handicap or disability. Id. Thus, Tarr failed to meet his evidentiary
burden of establishing a physical or mental impairment which
substantially limits one or more of.such person's major life activities.
Evidence that, when under the influence of drugs and alcohol it
impacted a person's ability to walk, talk, think, sleep, and work is not
evidence of a handicap or disability and "far more is required to trigger
coverage." See Burch v. Coca-Cola Co., 119 F.3d 305, 316 (5th Cir.1997).
"Permanency, not frequency, is a touchstone of a substantial living
impairment. Id. Burch involved an alcoholic claiming a disability and
'.
the Court determined that even with testimony from the Plaintiff and
his treating physician that he was significantly impacted in his ability
to live and work, these were not permanent impairments and did not
offer protections under the purview of the Americans with Disabilities
Act. Id.
It appears that Tarr has all but conceded in his Appellate Brief
that his affidavit failed to meet his evidentiary burden. None of the
cases cited by Tarr in his Appellant Brief refute the applicable case law
under both Texas and this Circuit Court of Appeals but is instead
focused on jurisdictions that have no relationship to the State of Texas
38
or 5th Circuit Court of Appeals authority. (TB34-39). This is by no
accident because the case law that is directly on point to the factual
scenario of Tarr's renters demonstrates that Tarr failed to meet his
evidentiary burden in establishing a handicap or disability as to his
Fair Housing Act causes of action.
Tarr then attempts to cite to "later-offered evidence" in support of
his position that this Court should ignore the fact that Tarr's initial
affidavit provided no evidence in his Response to the No-Evidence
Summary Judgment. (TB39, FN 9). Tarr's statement that "the trial
court could have reconsidered the summary judgment on the
affirmative defenses and considered the later-offered evidence" lacks
legal and factual merit in that Tarr did not ask for a Motion for
Reconsideration and the "additional evidence" that he cites to was never
even presented to the first trial court for consideration because it was
filed several months later in Response to Lantana's Second Motion for
Partial Summary Judgment, not the First No-Evidence Motion. (SCR
3-37). So they are of no evidence as to the Partial Summary Judgment
as to Tarr' s Fair Housing Act affirmative defenses.
39
Further, even if Tarr had set his Motion for Reconsideration, new
arguments to defeat summary judgment presented after the trial court
granted a summary judgment do not warrant reversaL See Brookshire
Katy Drainage Dist. v. Lily Gardens, LLC, 333 S.W.3d 301, 313 at FN. 3
(Tex.App.-Houston [1st Dist.] 2010, pet. denied), citing Macy v. Waste
Mgmt., Inc., 294 S.W.3d 638, 650-51 (Tex.App.-Houston [1st Dist.]
2009, pet. flied).
Tarr failed to produce the evidence of a handicap or disability as
required to fall within the purview of the Federal and Texas Fair
Housing Acts in response to Lantana's No-Evidence Motion for Partial
Summary Judgment as to his Fair Housing Act affirmative defense,
pursuant to Texas Rules of Civil Procedure 166a(i), and, as such, the
trial court's ruling in Lantana's favor was proper and should be upheld.
Tarr also asserts that there is a "fact issue with respect to
whether the residents are also "regarded as disabled'' under the third
definition (of the Fair Housing Act). (TB42-46). This argument also
fails as a matter of law. The evidence cited was not produced in
Response to the No-Evidence Motion for Partial Summary Judgment.
40
(CR286-295). Thus, it offers no support to the Fair Housing Act
affirmative defenses. See TRCP 166a(i).
III.
A. The Trial Court Did Not Erroneously Grant Summary
Judgment on Tarr's Counterclaims of the Federal Fair
Housing Act and The Texas Fair Housing Act
Lantana filed a second Motion for Partial Summary Judgment on
January 1, 2014. (CR298-416). Lantana also filed a Reply Brief Tarr's
Response which was also considered by the Court. (CR420-495; CR496-
497). The Motion for Partial Summary Judgment included a
Traditional Summary Judgment under TRCP 166a(c) as to Tarr's
counterclaims for the Federal and Texas Fair Housing Act. (CR301).
The bases for the Traditional Motion for Summary Judgment as to
Tarr's Federal and Texas Fair Housing Act causes of action were two-
fold: first, no fact issue then existed as to said claims since the trial
court had already ruled that the residents were not afforded protections
.under the act since they were not handicapped or disabled as defined by
the acts. (CR298-301). Secondly, even if the court had not already ruled
on the issue, summary judgment was still proper because Tarr had
(once again) failed to prove that the residents were qualified individuals
41
falling within the afforded protections of the Acts because they are
handicap or disabled, the most critical required element of establishing
the Fair Housing Act causes of action for which he has the burden.
(CR430-432).
The Court reviewed the briefing provided by Lantana and Tarr, as
well as all evidence presented by Tarr in his attempt to establish the
required elements of proof that the residents were handicapped or
disabled as defined by the acts as well as argument of counsel, and
ruled that the partial summary judgment as to Tarr's Counterclaims for
the Federal and Texas Fair Housing Acts should be granted. (CR497-
498).
Tarr first asserts that the trial court erred in granting the Motion
for Partial Summary Judgment as to his Federal and Texas Fair
Housing Act claims 1) "because a First Partial Summary Judgment was
in err, it cannot negate Mr. Tarr's Counterclaims"; 2) "Even a valid
partial summary judgment on Mr. Tarr's statutory affirmative defenses
would not negate the Counterclaims." (TB47-51).
A party claiming protections under the Fair Housing Act will bear
the burden at trial on its Fair Housing Act claims, and a defendant to
42
those claims can obtain summary judgment by pointing the court to the
absence of evidence of an essential element of the claim in question. See
AHF Cmty .. Dev. LLC v. City of Dallas, 633 F. Supp. 2d 287, 298 (N.D.
Tex. 2009); Celotex Corp. u. Catrett, 4 77 U.S. 317, 323, 106 S. Ct. 2548,
91 L. Ed. 2d 265 (1986). Once it does so, the party claiming Fair Housing
Act protections must go beyond its pleadings and designate specific
facts demonstrating that there is a genuine issue for trial. See Celotex,
106 S. Ct. 2548; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th
Cir.1994) (en bane) (per curiam). (Fitzwater, J.). Summary judgment is
mandatory if the Fair Housing Act claimant fails to meet his or her
burden. See Little, 37 F.3d at 1076.
Mere assertions of a factual dispute unsupported by probative
evidence will not prevent summary judgment. See Celotex 106 S. Ct.
2505; Abbott v. Equity Group, Inc., 2 F.3d 613, 619 (5th Cir.1993). In
other words, conclusory statements, speculation and unsubstantiated
assertions will not suffice to defeat a motion for summary judgment.
Douglass v. United Servs. Auto. Ass'n, 79 F .3d 1415, 1429 (5th Cir.1996)
(en bane).
43
.i
As set forth in the preceding section of this Reply Brief, the partial
summary judgment as to Tarr's affirmative defenses of the Federal and
Texas Fair Housing Act was absolutely correct because Tarr failed to
produce the requisite evidence required to meet his evidentiary burden
to avoid said affirmative defense. The Court has already ruled that the
renters were not handicapped or disabled, so there was no fact issue.
As such, there was no such "erroneous summary judgment on the
affirmative defenses" as argued in Tarr's Appellate Brief. (TB47-51).
Tarr's second argument, that even without the First Motion for
Partial Summary Judgment granted, there is evidence to establish a
"handicap" and "disability" under the Federal and Texas Fair Housing
Act cause of action which should have precluded summary judgment, is
also without merit. Tarr first attempts to argue that the Court should
(once again) reconsider affidavits filed in response to the Second Motion
for Partial Summary Judgment to somehow reconsider its First Motion
for Partial Summary Judgment as to the affirmative defenses even
though Tarr failed to file a Motion for Reconsideration. (TBS0-51). As
set forth above, Tarr never set a Motion for Reconsideration or
presented the new affidavits to the trial court who ruled on the Motion
44
for Partial Summary Judgment as to the affirmative defenses, so that
argument is waived.
Tarr then asserts that the affidavits create a fact issue as to
whether the residents of his group home were handicapped or disabled
within the meaning of the relevant statutes. (TB51). However, as
argued by Lantana in its Reply, which was also considered by the trial
court, these affidavits (like Tarr's first affidavit) do nothing more than
establish that the residents are alleged to suffer from alcohol and drug
dependency. (CR430-432; SCR 19-37). This is not evidence of a
handicap or disability under the Fair Housing Acts.
"The determination of whether an individual has a disability is
not necessarily based on the name or diagnosis of the impairment the
person has, but rather on the effect of that impairment on the life of the
individual." See Taylor v. Principal Financial Group, Inc., 93 F.3d 155,
164 (5th Cir.), cert. denied, 519 U.S. 1029, 117 S. Ct. 586, 136 L. Ed. 2d
515 (1996). Therefore, a person claiming to be disabled because of
alcoholism must still establish that he satisfies the requirements of the
definition of a disability under the ADA and its accompanying
45
regulations. McKey v. Occidental Chem. Corp., 956 F. Supp. 1313, 1318
(S.D.Tex.1997). (addressing alcoholism under the ADA).
Whether impairment substantially limits a major life activity
must be determined, not by how "disabling" the impairment sounds, but
rather by the impact of the impairment on the individual. !d.
Tarr's statement that his residents are required to have a drug or
alcohol addiction is nothing more than a statement that they have
"impai~ment," but it offers none of the required evidence to establish a
handicap or disability. Id. Thus, Tarr failed to meet his evidentiary
burden of establishing a physical or mental impairment which
substantially limits one or more of such person's major life activities.
Further, evidence that, when under the influence of drugs and
alcohol it impacted a person's ability to walk, talk, think, sleep, and
work is not evidence of a handicap or disability and "far more is
required to trigger coverage". See Burch v. Coca-Cola Co., 119 F.3d 305,
316 (5th Cir.1997). "Permanency, not frequency, is a touchstone of a
substantial living impairment. !d.
Burch involved an alcoholic claiming a disability and the Court
determined that even with testimony from the Plaintiff and his treating
46
physician that he was significantly impacted in his ability to live and
work these were not permanent impairments and did not offer
protections under the purview of the Americans with Disabilities Act.
I d.
All of the affidavits produced by Tarr in Response to Lantana's
Motion for Partial -Summary Judgment as to his Fair Housing Act
causes of action do nothing more than assert that the renters are
"alcoholics" and/or "former drug addicts" and the affidavits go through a
litany of arrest for DUI, imprisonment for drug possession, money
wasted, and relationships impacted which, as in Burch, is of no evidence
as the affidavits do not establish a permanent, substantially limiting
impairment. (SCR 19-37).
B. There is no fact issue with respect to whether the residents
are "regarded as disabled" under the third definition of the
Fair Housing Act
Tarr argues that the residents are regarded as disabled under the
Fair Housing Act and cites as evidence an email sent by the former
HOA president to the management company. (TB42-45).
Tarr's "evidence" actually proves there is no fact issue.
Specifically, the e-mail sent, per Tarr "clearly demonstrates that the
47
reason the HOA does not want Westlake recovery house residents living
· in the neighborhood is precisely because the home is a group home for
recovering alcoholics and drug addicts." (TB45). The reason this is not a
fact issue (and actually proves as a matter of law that there wasn't a
discrimination based upon a person that is "regarded as disabled" is
because simply regarding someone as an "alcoholic or drug addict"
without evidence that they actually believe that the person has a
physical impairment that substantially limits a major life activity
(when in fact they do not) is not a violation of the Federal Housing Act.
"Regarding [a claimant] as anything other than [what they] actually
[are]: an alcoholic whose alcoholism did not impair any major life
activity, including the major life activity of working, is insufficient to
support a 'regarded as having an impairment' claimant." See Burch v.
Coca-Cola at 322. Because there is no fact issue as to the "regarded as
disabled" prong of the Fair Housing Act, Summary Judgment was
proper.
48
IV.
The Trial Court Did Not Err in Awarding Attorneys Fees
(which were agreed to by the parties) to Lantana
On June 12, 2014, Lantana filed a Motion for Final Summary
Judgment whereby it argued that because Tarr's affirmative defenses
and counterclaims, including the affirmative defenses and
counterclaims of the Federal and Texas Fair Housing Act, had all been
subject to prior Motions for Summary Judgment, and because the trial
court had ruled as a matter of law that Tarr was in breach of the
Declaration, it was entitled to a Final Summary Judgment pursuant to
TRCP 166a(c) seeking a permanent injunction consistent with the
Declaration. (CR499M605). Lantana also sought its attorneys' fees
pursuant to the Texas Property Code §5.006. (CR499M605). The Court
partially granted the summary judgment and ordered Tarr to desist and
refrain from breaching the Declarations of Covenants, Conditions, and
Restrictions for Lantana Southwest single family properties, but it
denied the attorneys fees because it felt there was a fact issue on the
fees . (CR617 ~620).
Tarr's entire prem1se for this his argument fails because the
attorney's fees were not awarded based on an injunction but were
49
instead awarded pursuant to the Texas Property Code after Lantana
proved, as a matter of law, that Tarr was in breach of the Declaration
and, further, the attorney's fees that he is now complaining of were
actually agreed to by.Tarr and his prior counsel
Specifically, the attorney's fees were not awarded by the Court
when requested in Lantana's Third Motion for Summary Judgment.
(CR617 -620). While that court did issue an injunction, the court found
there was a fact issue as to the fees and did not award them. (CR61 7-
620).
Instead, the attorney's fees were later agreed to by the parties and
were made part of a Modified Final Judgment:
The Court finds based on the signature of their counsel that
Lantana and Tarr have agreed that $88,000.00 are
reasonable and necessary fees for the prosecution and
defense of the above-referenced lawsuit by Lantana up
to the signing of this Final Modified Judgment. Lantana and
Tarr further agreed that $35,000.00 are reasonable and
necessary fees to be paid to Lantana should Tarr file and
unsuccessful appeal of this case to the Texas Court of
Appeals. This agreed amount, however, is the maximum
amount to be paid by Tarr to Lantana in the event of said
appeal and all amounts due and payable must have been
incurred by or on behalf of Lantana. No part of this Final
Modified Judgment or the prior orders of this Court are
agreed to by Tarr except the amount of reasonable and
necessary attorney's fees set forth above, and Tarr
50
reserves his right to appeal from every other ruling in those
prior orders. (CR621-CR624).
However, even if the fees had not been agreed to by Tarr, the trial
court was required, pursuant to Texas Property Code §5.006, to award
said fees because Lantana was the "prevailing party". See Texas
Property Code §5.006. Specifically, all that was required for Lantana to
satisfy the "prevailing party" requirement under the Code was to prove
that Tarr had violated a deed restriction: "[n]or is there any
requirement 1n such suits that the plaintiff must plead monetary
damages to be labeled the prevailing party on a finding that a
defendant violated a deed restriction. Rather, the plaintiff simply must
prove that the defendant intended to do an act which would breach the
deed restriction or that the defendant violated the deed restriction."
Nash v. Peters, 303 S.W.3d 359, 362 (Tex. App. El Paso 2009, no pet.).
See also Jim Rutherford Investments, Inc. v. Terramar Beach
Community Ass'n, 25 S.W.3d 845, 853 (Tex.App.-Houston [14th Dist.]
2000, pet. denied); Munson v. Milton, 948 S.W.2d 813, 815 (Tex.App.-
San Antonio 1997, pet. denied). "If the court so finds, the plaintiff is the
prevailing party." Nash at 362. See also Briargrove Park Property
Owners, Inc. v. Riner, 867 S.W.2d 58, 61 (Tex.App.-Texarkana 1993,
51
writ denied); City of Houston u. Muse, 788 S.W.2d 419, 424 (Tex.App.-
Houston [1st Dist.] 1990, no writ). As the successful prosecutor of the
breach-of-deed restrict1on, the court must award him attorneys' fees.
Tex. Prop.Code Ann. § 5.006(a); Anderson v. New Property Owners'
Ass'n of Newport, Inc., 122 S.W.3d 378, 390 (Tex.App.-Texarkana 2003,
pet. denied); Pebble Beach Prop. Owners' Ass'n v. Sherer, 2 S.W.3d 283,
291-92 (Tex.App.-San Antonio 1999, pet. denied); Inwood North
Homeowners' Ass'n, Inc. u. Meier, 625 S.W.2d 742, 743-44
(Tex.Civ.App.-Houston [1st Dist.] 1981, no writ).
;
i
·---i
Because Lantana was the "prevailing party" pursuant to Texas
Property Code§ 5.006, and because Tarr agreed to said fees in the Final
Modified Judgment, the awards of fees was proper and should be
upheld.
CONCLUSION AND PRAYER
Mter a year of litigation and discovery, Tarr was unable to meet
his evidentiary burden in producing the requisite evidence needed to
establish that his breach of the Residential Use Declaration restriction
was protected by the Federal and Texas Fair Housing Act. The
respected Travis County Judges who reviewed all of the briefing and
52
evidence presented by both parties, and who eventually ruled in favor of
Lantana on its breach of Declaration cause of action against Tarr, and
against Tarr on all of his causes of action, followed the law in what led
to a Final Judgment in Lantana's favor. Because Tarr failed to meet
his burden, and because Lantana met its burden, Lantana respectfully
requests that this Honorable Court uphold the Final Judgment in
Lantana's favor.
Respectfully submitted,
ROBERTS MARKEL WEINBERG BUTLER
HAILEY PC
GREGORY B. GODKIN
Texas State Bar No. 24002146
111 Congress, Suite 1620
Austin, TX 78701
ggodkin@rmwbhlaw .com
Telephone: (512) 279-7344
Fax: (713} 840-9404
Attorneys for Lantana Southwest
Homeowners' Association, Inc.
53
CERTIFICATE OF COMPLIANCE
Pursuant to Texas Rules of Appellate Procedure 9.4(i)(3), I hereby
certify that this brief contains 10,097 words. This is a computer-
generated document created in Microsoft Word, using 14-point typeface
for all text. In making this certificate of compliance, I have relied on
the word count provided by the software used to prepare this document.
Gregory B. Godkin
54
CERTIFICATE OF SERVICE
I hereby certify that I served a true and correct copy of the
foregoing Reply Brief of Appellee on all counsel of record on March 18,
2015, as listed below:
Via Electronic Mail: Matthew@PloegerLaw.com
Mr. Matthew Ploeger
Law Office of Matthew Ploeger
901 S. Mopac Expressway, Suite 300
Barton Oaks Plaza, Building One
Austin, Texas 787 46
(512) 298-2088 Phone
Attorney for Kevin Tarr
.· ~
~B. GODKIN
55
APPENDIX
Appendix A: Final Judgment)
Appendix B: Texas Property Code §5.006)
56
Appendix A
57
DC BK14246 PG1793
'" @
Notice sent: Interlocutory None -~
2Eo
f4L{ i· (.)
Dlsp Parties:
Dlsp code:~ cLS1(_pLi
oc
~.; ...- ci
N
D
'D
Redact pgs:.-::---::-:-----=~-­
-``
VJI::
~ c::
41
::;:
j
Judge A(_rf) Clerk ,64 CAUSE NO. D-1-GN-12-002467 -:s
Oo
CIJ()
.s::ln
"'
=
0..
N
41
:J
.2'
i;
1-·- UJ 0
I c> (/) ·~
LANTANA SOUTHWEST § IN THE DISTRICT COURT OF_;~ .!!
J
I
HOMEOWNERS' ASSOCIATION,
INC.,
§ Cll ....
=o
u.
~