Carolyn Frost Keenan v. River Oaks Property Owners, Inc.

Opinion issued March 17, 2022
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-20-00493-CV
———————————
CAROLYN FROST KEENAN, Appellant
V.
RIVER OAKS PROPERTY OWNERS, INC., Appellee
On Appeal from the 133rd District Court
Harris County, Texas
Trial Court Case No. 2014-03190
MEMORANDUM OPINION
Appellant, Carolyn Frost Keenan (“Keenan”), challenges the trial court’s
summary judgments in favor of appellee, River Oaks Property Owners, Inc.
(“ROPO”), in ROPO’s suit against Keenan for a violation of a restrictive covenant
and for declaratory judgment, and on Keenan’s counterclaims to quiet title and for
violations of the Fair Housing Amendments Act of 1988 (“FHAA”), the Texas Fair
Housing Act (“TFHA”), and the City of Houston Fair Housing Ordinance
(“HFHO”).1 In two issues, Keenan contends that the trial court erred in granting
summary judgment and in striking portions of her summary-judgment evidence.
We affirm.
Background
River Oaks is a residential subdivision located near downtown Houston that
was developed in the 1920’s. According to the record, in 1926, the developer, “River
Oaks Corporation” (“ROC”), adopted the “Section One (1) Reservations,
Restrictions and Covenants in the River Oaks Addition” (the “Original
Restrictions”). They were made part of “each and every contract, deed or
conveyance” and made “binding upon the successors, heirs, assigns and legal
representatives of [ROC] and of the grantee in every such contract or deed.”
Thereafter, as the River Oaks area grew, supplemental sets of restrictions were
adopted for each section. In 1929, as pertinent here, ROC adopted the “Section Five
(5) Additional Reservations, Restrictions and Covenants in River Oaks Addition
Supplementing Resolutions of [various dates]” (the “Supplemental Restrictions”).
The Original and Supplemental Restrictions (collectively, the “Restrictions”) set out
1
See 42 U.S.C. § 3604 (FHAA); TEX. PROP. CODE § 301.025 (TFHA); HOUSTON,
TEX., CODE OF ORDINANCES, ch. 17, art. III, § 17-12(f) (2021) (HFHO).
2
a series of General Restrictions on the use of property in River Oaks and authorized
ROC to enter property and to “summarily abate or remove” any violation. The
Restrictions provided that their term expired on January 1, 1955, but that they could
be extended for successive additional ten-year periods, as follows:
These restrictions shall be effective until January 1, 1955, but at any
time within five years before January 1, 1955, the then owners of a
majority of the square foot area of the lots in this Addition may, by
written declaration, signed and acknowledged by them, and recorded in
the deed records of Harris County, Texas, extend these restrictions,
conditions and covenants, (or any others hereafter adopted with
reference to this property in accordance herewith) for a period of ten
years additional, and then similarly, for successive additional periods
of ten years as often and as long as the owners of the majority of the
square feet of the property may desire.
In 1954, ROPO was formed. Its corporate charter states that its purpose
included “the protection of properties and rights.” In 1963, ROC assigned to ROPO
“all of the rights relative to the restrictions.”
The record shows that the River Oaks property owners extended and re-
adopted the Restrictions in 1955, 1965, 1975, 1985, and 1995. At each renewal, the
property owners expressly authorized ROPO, as successor to ROC, to act in their
names and on their behalf.
In 2004, ROPO’s Board of Directors (the “Board”) formed a Restrictions
Restatement Committee (the “Committee”) to modernize and consolidate the 23 sets
of restrictions governing the different sections of River Oaks into one set of
restrictions and to provide for their automatic renewal. The Committee held various
3
town hall meetings. In October 2004, ROPO sent a letter to all of the River Oaks
property owners, presenting a list of proposed amendments and inviting them to a
meeting. In March 2005, ROPO mailed letters to the property owners, along with
the final version of the proposed amended restrictions, a summary of the
amendments, and a ballot seeking affirmative votes.
It is undisputed that, in August 2005, a River Oaks resident, Bert Langdon,
formed a group to protest the proposed amended restrictions. Langdon created and
circulated to each property owner a false ballot and letter asking them to vote against
the proposed amendments and to return their vote to him. He also circulated a false
rescission form, purporting to allow any property owner who had previously
submitted an affirmative vote to ROPO to rescind their vote.
In January 2006, ROPO determined that the official ballots that it had
circulated to property owners did not include a date by which the property owner
had to return the ballot for it to be counted, as required under the Texas Property
Code. In February 2006, ROPO returned each of the ballots that had been submitted,
with a stamp asking for a re-affirmation of the vote and directing that it be returned
to ROPO by December 1, 2006. ROPO also sent a corrected ballot to each of the
property owners who had not previously voted.
On June 2, 2006, ROPO, having determined that it had a sufficient number of
votes to approve the amendments, filed in the real property records a “Certification
4
of Receiving and Counting Ballots on Amendments to Reservations, Restrictions,
and Covenants Applicable to All Properties Located Within River Oaks Additions.”
ROPO’s Certification stated that it had circulated to each of the property owners in
River Oaks a copy of the proposed “Amendments to Reservations, Restrictions and
Covenant Applicable to All Properties Located within River Oaks Additions,
Including Tall Timbers Section and Country Club Estates Addition” (the “Amended
Restrictions”), a summary of the amendments, and a ballot, containing the date by
which it had to be returned to be counted. And, as required by Property Code section
204.005, the owners of at least 75 percent of the real properties in River Oaks had
voted in favor of and to approve the Amended Restrictions. ROPO certified that:
According to the ownership records maintained by the Association, the
total square footage within all properties in the Subdivision [all sections
of River Oaks] is 32,602,253, and the owners of the properties in the
Subdivision containing a total square footage of 24,735,885 voted in
favor of and to approve the Amended Restrictions (75.87%). The
Ballots are and will be kept in the files of the Association.[2]
Thereafter, the Amended Restrictions became effective unless terminated by a vote.
On November 11, 2011, ROPO recorded its updated “Policies and Procedures
with Architectural Review and Approval Process” (the “Policies and Procedures”),
2
See In re Keenan, 501 S.W.3d 74, 78 (Tex. 2016) (granting “mandamus relief
directing the trial court to permit Keenan to copy the ballots and disclose them for
purposes of discovery, expert analysis, trial preparation, and trial”).
5
which governed the procedures for obtaining the required approval from the Board
for proposed designs and the construction of improvements on an owner’s lot.
At some point in or prior to 2011, Keenan, who lived in River Oaks and had
voted in favor of the Amended Restrictions, inherited another River Oaks property.
She became the sole owner of a lot with an existing house in the River Oaks
Addition, Section 5, at 2940 Chevy Chase, Houston, Texas (the “Property”). Keenan
had plans drawn up for the construction of a new house on the Property.
In its petition, ROPO alleged that, on November 15, 2011, Keenan submitted
a proposed plan (“Proposal 1”) to the Board for the construction of a new house and
landscaping on the Property. Keenan’s Proposal 1 included: (1) a parking area
adjacent to the front door and off of the main driveway that was approximately 22
feet long and 17 feet wide; (2) a concrete wheelchair ramp, sloping up to a landing
outside the front door of the residence; and (3) a concrete walkway from the city
sidewalk to the front-door landing.
As pertinent here, paragraph 14 of the Amended Restrictions limited the
impermeable area of a lot to a specific percentage of the total building area:
After the effective date of this instrument, the total area of the footprints
of a residential dwelling, garage, outbuilding and other improvement
on a lot which has a foundation, and any impermeable hardscape on the
lot, including by way of example and not in limitation, synthetic grass,
driveways, walkways, swimming pools and tennis courts, shall not
exceed one hundred percent (100%) of the total building area of the lot
within the front, side and rear setbacks applicable to the lot, or, in the
case of a lot with a total area less than 15,000 square feet, one hundred
6
ten percent (110%) of the total building area of the lot within the front,
side and rear setbacks applicable to the lot, in addition to any other
limitations on size, dimension or area. . . .
The stated purpose of this provision is to “preserve permeable areas for surface
water, minimize the diversion of surface water to streets and adjacent lots, and
preserve the historical character of River Oaks as a subdivision with substantial
vegetation and open spaces.” The Restrictions provide that plans for all walkways
and driveways must be submitted to the Board “prior to installation or construction.”
In Proposal 1, Keenan represented that the area of her lot was 12,472 square
feet, that the allowable impermeable cover under the terms of the Amended
Restrictions totaled 6,618 square feet, and that her proposed impermeable cover
totaled 6,615 square feet.
On December 15, 2011, the Board granted Keenan preliminary approval of
Proposal 1. Keenan then submitted a slightly revised version of Proposal 1 to the
City of Houston (the “City”), who approved it and issued a building permit. On July
23, 2012, the Board, having determined that Keenan’s changes were not material
and that she was still within limitations, authorized her to commence construction.
On February 20, 2013, however, Keenan submitted a revised plan (“Proposal
2”) to ROPO that differed significantly from Proposal 1 and from the City-permitted
plan. In Proposal 2, Keenan sought to (1) increase the parking area adjacent to the
front porch to approximately 33 feet long by 18 feet wide; (2) replace the sloping
7
concrete wheelchair ramp with a larger porch to be accessed by multiple steps on
two sides of the porch; (3) replace the straight and non-continuous walkway with a
curved and continuous walkway from the city sidewalk to the front landing; (4) add
two side-yard brick-and-paver patios; and (5) add a concrete walkway and pad at the
door to the garage apartment, as a back entrance. Proposal 2 increased the
impermeable surface area of the Property from 6,615 square feet to 7,845 square
feet, which was 1,230 square feet over Proposal 1.
On March 19, 2013, ROPO notified Keenan that it would not approve
Proposal 2 because it exceeded the impermeable surface-area limitation in the
Amended Restrictions. ROPO noted that Keenan could proceed with construction
as previously approved in Proposal 1.
ROPO alleged that, in November 2013, it discovered that Keenan had in fact
commenced construction of improvements in accordance with Proposal 2. On
December 2, 2013, ROPO directed Keenan to stop the work, but she refused. By
January 2014, Keenan had completed the work pursuant to Proposal 2. In 2014,
Keenan and her husband moved into the new house on the Property.
ROPO sued Keenan for violating the Amended Restrictions, alleging that
Keenan was bound by the Amended Restrictions governing the Property; that ROPO
was entitled to enforce the Amended Restrictions; that Keenan had breached the
terms of the Amended Restrictions by constructing improvements in violation of the
8
impermeable surface-area limitation; and that Keenan had refused to reduce any
portion of the area installed. It also sought a permanent injunction requiring her to
remove 1,260 square feet of impermeable cover, or the amount exceeding 110
percent of the total building area of her lot, within thirty days of judgment. ROPO
also sought a declaration that the Amended Restrictions were valid and enforceable,
that they constituted a valid contract between ROPO and Keenan, and that Keenan
was required to remove 1,260 square feet of impermeable cover from the Property.
Keenan answered, generally denying the allegations and asserting various
affirmative defenses. Keenan asserted that ROPO was not entitled to enforce the
Amended Restrictions “as they are so vague and indefinite as to be unenforceable or
impossible to perform,” that they were “not properly executed,” and that the “deed
restrictions” governing River Oaks were “invalid and/or void under the Texas
Property Code” and had “expired.” She asserted that ROPO lacked standing to
“enforce the restrictions at issue in this case, as its membership is limited to only
those persons that have entered contracts with it.” And, “[b]ecause its membership
does not consist of owners of property within the subdivision [it] is not the
designated representative of the owners in the subdivision.” Keenan also asserted
that the Restrictions “violate[d] the Fair Housing Act prohibition on discrimination
against disabled individuals.”
9
Keenan brought a counterclaim against ROPO to quiet her title, in which she
asserted that the Amended Restrictions were “not properly approved by the requisite
number of properties in River Oaks” and thus are unenforceable.3 She asserted that
the Amended Restrictions, if enforced, would interfere with her use and enjoyment
of the Property, and she sought to remove “this cloud on her title to the Property.”
Keenan also brought a counterclaim against ROPO for fair-housing
violations, under the FHAA, TFHA, the HFHO. She asserted that she had requested
an accommodation of the limitation on impermeable surfaces in the Amended
Restrictions to allow for the installation of a van-accessible driveway and parking
area for her disabled mother-in-law. She asserted that ROPO had refused to make a
reasonable accommodation, in accordance with these provisions, which prohibit
discrimination against a disabled person by refusing to make a reasonable
accommodation in rules, policies, or practices if such is necessary to afford the
person equal opportunity to use and enjoy a dwelling. Keenan sought a judgment
declaring that allowing an increase in the amount of hardscape on the Property was
3
In July 2015, the trial court abated the case and ordered that Keenan “join each and
every owner of real property in River Oaks, who is subject to the original and
amended deed restrictions at issue in this case as proper parties to the counterclaims
[she] asserted seeking to invalidate those restrictions.” The trial court ordered that,
if she failed or refused to do so, her counterclaims seeking to invalidate the
restrictions governing River Oaks would be deemed dismissed, with prejudice.
Thereafter, however, Keenan did not join the other property owners in River Oaks.
ROPO notes in its brief: “At the end of the abatement period, Keenan was forced
to amend her claims rather than proceed with joinder of all ROPO members.
10
a reasonable accommodation and that ROPO’s enforcement of the Amended
Restrictions relating to hardscape was arbitrary and capricious. Keenan also sought
injunctive relief and actual and punitive damages, attorney’s fees, and costs.
On May 20, 2015, ROPO moved to compel Keenan to identify her mother-in-
law and her handicap in order to evaluate Keenan’s fair-housing claims. At a June
1, 2015 hearing on the motion to compel, ROPO complained that Keenan was
required to identify a disabled person needing the asserted accommodation and that
Keenan had refused. Keenan’s counsel responded that because Keenan’s mother-
in-law would not be called to testify at trial, Keenan was not required to identify her.
Subsequently, during her June 17, 2015 deposition, Keenan identified her mother-
in-law as Lavera Gaines and testified that she had arthritis.
In September 2018, ROPO filed three motions for partial summary judgment,
encompassing all of its claims and Keenan’s counterclaims and affirmative defenses.
ROPO argued that the summary-judgment evidence conclusively established that it
was entitled to judgment on its claims against Keenan for violation of a restrictive
covenant and for declaratory relief, and against Keenan on her affirmative defenses
and counterclaims to quiet title and for fair-housing violations. ROPO attached
approximately 52 pieces of summary-judgment evidence, discussed as applicable
below. ROPO asserted that Keenan did not present evidence raising any genuine
issues of material fact.
11
With respect to its claim for violation of a restrictive covenant, ROPO argued
that it was entitled to judgment as a matter of law because Keenan had judicially
admitted, through assertions of fact in her pleadings, that she had violated the
Amended Restrictions by constructing improvements and installing impermeable
surfaces on more than 110% of the allowable building area of the Property. ROPO
asserted it was entitled to a permanent injunction requiring Keenan to remove 1,260
square feet of impermeable surface, or that exceeding 110 percent of the total
building area of her lot, within thirty days of judgment. ROPO further asserted that
it was entitled to a declaration that the Amended Restrictions were validly enacted
and enforceable by ROPO against Keenan’s Property; that the Amended Restrictions
constituted a valid contract between ROPO and Keenan; and that Keenan must
remove 1,260 square feet of impermeable surface area from her Property to comply
with the Amended Restrictions.
ROPO argued that it was entitled to judgment as a matter of law on Keenan’s
counterclaim against ROPO to quiet title because the evidence conclusively
established that it amended the Original and Supplemental Restrictions in
accordance with Property Code section 204.005, by obtaining approval of the
owners of at least 75% of the real property in River Oaks and by filing its petition as
a dedicatory instrument in the Harris County real property records. Thus, the
Amended Restrictions did not constitute a cloud on Keenan’s title.
12
ROPO argued that it was entitled to judgment as a matter of law on Keenan’s
counterclaim for violations of the FHAA, TFHA, and HFHO because the evidence
conclusively disproved the elements of her claims. ROPO argued that the evidence
established that Keenan did not, at the time she requested an accommodation from
ROPO, identify any person for whom she sought an accommodation or establish that
the person met the FHAA’s definition of “handicapped.” Rather, it was not until
two years after ROPO had rejected Proposal 2, eighteen months after litigation had
commenced, and only in response to a motion to compel, that she first revealed the
identity of her mother-in-law to ROPO. ROPO also asserted that Keenan’s request
for an accommodation exceeding the maximum allowable impermeable cover of the
Property was neither necessary nor reasonable and, if granted, would undermine the
legitimate purposes of ROPO’s land-use regulation designed to prevent flooding in
River Oaks. ROPO asserted that Keenan’s TFHA and HFHO claims similarly failed
and were time-barred.
ROPO also argued it was entitled to judgment as a matter of law on Keenan’s
asserted affirmative defenses, i.e., of lack of notice, waiver, laches, estoppel,
ratification, and waiver, because they failed as a matter of law.
In October 2018, Keenan filed a response to each of ROPO’s motions for
partial summary judgment, discussed in detail below, to which she attached various
pieces of evidence. She argued that ROPO was not entitled to summary judgment
13
on her counterclaim to quiet title because the Amended Restrictions were not valid.
She asserted that ROPO was not a “property owners association,” and thus was
without authority to amend the restrictions, and that it had failed to obtain approval
of the requisite number of property owners to enact the Amended Restrictions. In
support of her claim, Keenan presented the affidavit of Charles J. Jacobus, an
attorney who examined the ballots and opined regarding the percentage of property
owners who had approved the Amended Restrictions.
With respect to ROPO’s claim against her for violating a restrictive covenant,
Keenan presented the affidavit of Paul M. Valentine, a registered professional
surveyor, who testified regarding the impermeable surface area of the Property. She
also argued that ROPO was not entitled to attorney’s fees because it had failed to
give certain statutorily required notice.
Keenan argued that ROPO was not entitled to summary judgment on her
counterclaim for fair-housing violations because she identified her mother-in-law as
a disabled individual, and her request for an accommodation was reasonable. She
asserted that her claims were not time-barred. In support, Keenan cited portions of
her deposition testimony and certain December 2013 correspondence between her
counsel and ROPO. She also presented a letter and affidavit from Jeromy Murphy,
an accessibility expert, who opined that the driveway Keenan had requested was
reasonable and necessary.
14
ROPO moved to strike certain portions of Keenan’s evidence, namely,
portions of the affidavits of Jacobus and Murphy, and the affidavit of Valentine.
On January 2, 2019, Keenan’s mother-in-law, Gaines, died. In May 2019,
ROPO filed a supplement to its motion for summary judgment on Keenan’s
counterclaims, arguing that her claims for violations of the FHAA, TFHA, and
HFHO, and for declaratory relief, were moot because they were “completely
dependent upon proof that [Keenan’s] Property require[d] modification to
accommodate a disabled person.” As Keenan had ultimately identified Gaines,
ROPO requested that the trial court take judicial notice of her death.
Subsequently, the trial court took the requested judicial notice and rendered a
summary judgment in favor of ROPO on its claims for affirmative relief. The trial
court found that Keenan was the owner of the Property; that she was bound by the
Restrictions and Policies and Procedures; that she substantially breached the terms
of the Restrictions and Policies and Procedures by constructing improvements in
violation of the impermeable surface area limitation; and that ROPO was entitled to
enforce the Restrictions and Policies and Procedures. It found that the Amended
Restrictions were validly enacted and enforceable by ROPO against Keenan and her
Property and that the Amended Restrictions constituted a valid contract between
ROPO and Keenan. After finding that the River Oaks property owners would suffer
irreparable injury for which any remedy at law would be inadequate if the violation
15
were not corrected, the trial court entered a mandatory injunction against Keenan,
requiring her to remove 1,260 square feet of impermeable surface from her Property.
The trial court also rendered a summary judgment in favor of ROPO on
Keenan’s counterclaims and affirmative defenses. It ordered that Keenan take
nothing on her counterclaims and held that she did not establish her affirmative
defenses of failure of proper notice, waiver, abandonment, laches, estoppel,
ratification, and excuse, all of which it dismissed with prejudice. The trial court also
signed an order striking certain portions of Keenan’s summary-judgment evidence,
discussed below.
After a jury trial on attorney’s fees, the trial court signed a final judgment with
the following “declaratory findings”:
1. [Keenan] is and was at all relevant times the owner of the
[Property];
2. [Keenan] and the Property are bound by the Restrictions and
Policies and Procedures that burden the Property;
3. [Keenan] distinctly and substantially breached the terms of the
Restrictions and Policies and Procedures by constructing
improvements in violation of the impermeable surface area
limitation;
[4.] [ROPO] is entitled to enforce the Restrictions and Policies and
Procedures.
The trial court “provide[d] [ROPO] with the following declaratory relief”:
1. The Amended Restrictions, Policies and Procedures were validly
enacted and are enforceable by [ROPO] against [Keenan] and her
Property;
16
2. The Amended Restrictions constitute a valid contract between
[ROPO] and [Keenan]; and
3. [Keenan] must remove at least 1,260 square feet of impermeable
surface area from the Property to come into compliance with the
Amended Restrictions within thirty (30) days of the date of entry
of this Final Judgment.
The trial court found that ROPO established that Keenan violated the
Amended Restrictions and Policies and Procedures that burden the Property by
constructing improvements that exceeded the impermeable surface-area limitation
imposed by the Amended Restrictions. The trial court entered an injunction
requiring Keenan to remove 1,260 square feet of impermeable surface area from her
Property in accordance with the Amended Restrictions. Further, the trial court
ordered that Keenan take nothing on her counterclaims and ordered that she pay
ROPO attorney’s fees.
Summary Judgment
In her first issue, Keenan argues that the trial court erred in granting summary
judgment in favor of ROPO on its claims and on her counterclaims because ROPO
failed to conclusively establish its right to judgment. In her second issue, Keenan
argues that the trial court erred in striking portions of her summary-judgment
evidence.
17
Standard of Review and Overarching Legal Principles
We review a trial court’s summary judgment de novo. Valence Operating Co.
v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). In conducting our review, we take as
true all evidence favorable to the non-movant, and we indulge every reasonable
inference and resolve any doubts in the non-movant's favor. Id. If a trial court grants
summary judgment without specifying the grounds, we will uphold its judgment if
any of the theories advanced in the motion is meritorious. Beverick v. Koch Power,
Inc., 186 S.W.3d 145, 148 (Tex. App.—Houston [1st Dist.] 2005, pet. denied).
In a traditional motion for summary judgment, the movant has the burden to
establish that no genuine issue of material fact exists and that it is entitled to
judgment as a matter of law. See TEX. R. CIV. P. 166a(c); KPMG Peat Marwick v.
Harrison Cty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). A plaintiff
moving for summary judgment on its own claim must conclusively prove all
essential elements of its cause of action. Rhône–Poulenc, Inc. v. Steel, 997 S.W.2d
217, 223 (Tex. 1999). A defendant moving for summary judgment must
conclusively negate at least one essential element of the plaintiff’s cause of action
or conclusively establish each element of an affirmative defense. Sci. Spectrum, Inc.
v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997). A matter is conclusively established
if reasonable people could not differ as to the conclusion to be drawn from the
evidence. See City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005).
18
Only after the movant meets its burden does the burden shift to the
non-movant to present evidence raising a genuine issue of material fact precluding
summary judgment. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex.
1995); see also McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 342 (Tex.
1993) (“[S]ummary judgments must stand or fall on their own merits, and the
non-movant’s failure to except or respond cannot supply by default the . . . summary
judgment proof necessary to establish the movant’s right. . . .”). Evidence raises a
genuine issue if reasonable jurors could differ in their conclusions in light of all of
the summary-judgment evidence. Goodyear Tire & Rubber Co. v. Mayes, 236
S.W.3d 754, 755 (Tex. 2007).
A. ROPO’s Claim for Violation of a Restrictive Covenant
ROPO moved for a summary judgment on its claim against Keenan for
violation of a restrictive covenant, pursuant to Property Code sections 202.004 and
204.010, for which it sought injunctive relief. See TEX. PROP. CODE §§ 202.004,
204.010.
Property Code section 202.004(b) provides that a “property owners’
association or other representative designated by an owner of real property may
initiate, defend, or intervene in litigation . . . affecting the enforcement of a
restrictive covenant or the protection, preservation, or operation of the property
covered by the dedicatory instrument.” Id. § 202.004(b); see § 204.010 (authorizing
19
property owners’ association to exercise powers conferred by restrictions and to
“institute, defend, intervene in, settle, or compromise litigation . . . on matters
affecting the subdivision”). Section 202.004 establishes a cause of action and
authorizes a trial court to assess civil damages for each day of the violation of a
restrictive covenant. KBG Invs., LLC v. Greenspoint Prop. Owners’ Ass’n, Inc., 478
S.W.3d 111, 119 (Tex. App.—Houston [14th Dist.] 2015, no pet.). “A court may
assess civil damages for the violation of a restrictive covenant” of up to $200 for
each day of the violation. TEX. PROP. CODE § 202.004(c). Section 202.004 creates
a presumption that a property owners’ association or other representative exercises
its discretionary authority concerning a restrictive covenant reasonably “unless the
court determines by a preponderance of the evidence that the exercise of
discretionary authority was arbitrary, capricious, or discriminatory.” Id.
§ 202.004(a).
Ordinarily, injunctive relief may be granted only when the applicant proves
the occurrence of a wrongful act giving rise to imminent and irreparable harm for
which there is no adequate remedy at law. Tanglewood Homes Ass’n, Inc. v.
Feldman, 436 S.W.3d 48, 76 (Tex. App.—Houston [14th Dist.] 2014, pet. denied).
However, in the context of the enforcement of restrictive covenants, the applicant is
required to prove only that the defendant intends to do an act that would breach the
restrictive covenant. Id. at 76–77.
20
In support of its motion for summary judgment, ROPO presented a copy of
the Amended Restrictions. Paragraph 14 of the Amended Restrictions limits the
impermeable surface of a lot to a specific percentage of the total building area, as
follows:
[T]he total area of the footprints of a residential dwelling, garage,
outbuilding and other improvement on a lot which has a foundation,
and any impermeable hardscape on the lot, including by way of
example and not in limitation, synthetic grass, driveways, walkways,
swimming pools and tennis courts, shall not exceed one hundred
percent (100%) of the total building area of the lot within the front, side
and rear setbacks applicable to the lot, or, in the case of a lot with a total
area less than 15,000 square feet, one hundred ten percent (110%) of
the total building area of the lot within the front, side and rear setbacks
applicable to the lot, in addition to any other limitations on size,
dimension or area. . . .
We review a trial court’s interpretation of a restrictive covenant de novo. Tarr
v. Timberwood Park Owners Ass’n, 556 S.W.3d 274, 279 (Tex. 2018). Restrictive
covenants are subject to the general rules of contract construction. Id. at 280. In
construing a covenant, we give effect to the objective intent of the drafters of the
covenant as it is reflected in the language chosen. Id. When a restrictive covenant
is unambiguous, as here, we construe it according to the plain meaning of its express
wording and enforce it as written. Vance v. Popkowski, 534 S.W.3d 474, 478 (Tex.
App.—Houston [1st Dist.] 2017, pet. denied). The language in paragraph 14 of the
Amended Restrictions prohibits, in the case of a lot with a total area of less than
15,000 square feet, as here, the construction of improvements (with foundations) and
21
“impermeable hardscape” on more than 110% of the total building area of the lot,
within the setbacks.
ROPO presented the affidavit of Mathew J. Probstfeld, a registered
professional land surveyor, who testified that he conducted a survey of the Property
on October 8, 2014 (post-construction). He testified regarding the method he
employed in surveying the property, and he attached the survey to his affidavit. He
opined that, based on the survey and his inspection of the property, the allowable
building area of the Property was 5,982 square feet, that the amount of allowable
impermeable surface on the Property was 6,580 square feet, and that the combined
area of improvements and impermeable surfaces totaled 7,840 square feet.
In its motion, ROPO asserted that Keenan “admits in her live pleading that
she violated [paragraph 14] because the improvements on her property exceed the
impermeable surface covenant,” citing Keenan’s First Supplemental Answer and
Fourth Amended Counterclaim. The record shows that, in her First Supplemental
Answer and Fourth Amended Counterclaim, Keenan stated: “Under the formula
provided in the Restrictions, the allowable hardscape area for the Property is at least
6,788.4 square feet. The existing hardscape on the Property is 7,331 square feet.
Therefore, Keenan is only requesting an additional 542.6 square feet of hardscape
on the Property.” Thus, Keenan admitted, in her live pleading, that she constructed
impermeable surfaces in excess of that allowed under the Amended Restrictions.
22
Assertions of fact in a party’s live pleadings are regarded as formal judicial
admissions. Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 905 (Tex.
2000). A judicial admission “not only relieves [an] adversary from making proof of
the fact admitted but also bars the party himself from disputing it.” Id. (internal
quotations omitted).
ROPO also presented excerpts of Keenan’s deposition, in which she testified
as follows:
Q. You admit in your pleadings that you willfully violated the
restrictions, correct?
....
A. Correct. Because of my family situation, I felt I needed to
accommodate, and I could never get a final answer out of the
board.
Thus, ROPO presented summary-judgment evidence establishing that Keenan
intentionally violated the Amended Restrictions. Further, because ROPO
established that Keenan intentionally committed an act breaching a restrictive
covenant, ROPO was entitled to injunctive relief. See Feldman, 436 S.W.3d at 77.
Because ROPO’s summary judgment evidence establishes its right to
judgment against Keenan on its claim for violation of a restrictive covenant, the
burden shifted to Keenan to present evidence raising a genuine issue of material fact
precluding summary judgment. See Siegler, 899 S.W.2d at 197.
In her summary-judgment response, Keenan argued that ROPO’s exercise of
authority in enforcing the Amended Restrictions was arbitrary and capricious
23
because ROPO “is not a ‘property owners association,’” and therefore it was without
authority to act, and because the Amended Restrictions are not valid. See TEX. PROP.
CODE § 202.004(a) (creating statutory presumption that property owners’
association exercises its discretionary authority concerning a restrictive covenant
reasonably “unless the court determines by a preponderance of the evidence that the
exercise of discretionary authority was arbitrary, capricious, or discriminatory”);
Anderson v. New Prop. Owners’ Ass’n of Newport, Inc., 122 S.W.3d 378, 390 (Tex.
App.—Texarkana 2003, pet. denied) (holding that rejecting driveway plans without
establishing authority to do so represented arbitrary and capricious exercise of
discretionary authority).
1. Authority to Act
Keenan argued that ROPO was without authority to act as a property owners’
association in amending the restrictions because ROPO was neither created by the
deed restrictions nor formed pursuant to Property Code section 204.006. See TEX.
PROP. CODE § 204.006 (governing “Creation of Property Owners’ Association”
when “existing restrictions applicable to a subdivision do not provide for a property
owners’ association”).
As pertinent here, Property Code Chapter 204 defines a “property owners’
association” as follows:
(a) A property owner’s association is a designated representative of
the owners of property in a subdivision and may be referred to as
24
a “homeowners association,” community association,” “civic
association,” “civic club,” “association,” “committee,” or similar
term contained in the restrictions. The membership of the
association consists of the owners of property within the
subdivision.
(b) The association must be nonprofit and may be incorporated as a
Texas nonprofit corporation. An unincorporated association may
incorporate under the Texas Non-Profit Corporation Act [].
(c) The association’s board of directors or trustees must be elected
or appointed in accordance with the applicable provisions of the
restrictions and the association’s articles of incorporation or
bylaws.
Id. § 204.004.
ROPO presented evidence, as discussed above, that it has been the expressly
designated representative of the owners of property in River Oaks since at least 1963.
ROPO’s evidence includes a 1963 Assignment from ROC to ROPO of “all of the
rights relative to the restrictions.” The Assignment notes that ROPO “was created,
among other things, to assist in the enforcement of the[] restrictions.” ROPO’s
evidence further shows that, in each renewal of the Restrictions since 1965, the
property owners expressly designated ROPO to act in their names and on their
behalf. See id. § 204.004(a). (“A property owners’ association is a designated
representative of the owners of property in a subdivision. . . .”). ROPO’s evidence
also reflects that the members of the association are property owners in River Oaks.
See id.
25
In addition, ROPO presented its charter and articles of incorporation, which
reflect that ROPO was chartered and incorporated as a Texas nonprofit corporation
in 1954. Id. § 204.004(b) (“The association must be nonprofit and may be
incorporated as a Texas nonprofit corporation.”). Its corporate charter states that its
purpose includes “the protection of properties and rights.”
Keenan argued in her response that ROPO is not a property owners’
association under section 204.004 because its directors are not elected in compliance
with subsection (c). She complained that the restrictions make no mention of how
ROPO’s board is elected.
Section 204.004(c) provides: “The association’s board of directors or trustees
must be elected or appointed in accordance with the applicable provisions of the
restrictions and the association’s articles of incorporation or bylaws.” Id.
§ 204.004(c) (emphasis added). As ROPO argues, when there are no applicable
provisions in the restrictions, as here, the association’s articles of incorporation or
bylaws supplement the restrictions. Here, ROPO presented its articles of
incorporation, which state that the board is to be elected as “provided in the bylaws.”
And, its bylaws contain a section setting forth how its board is to be elected.
Thus, the requisites of section 204.004 are met and there are no genuine issues
of fact presented regarding ROPO’s authority to act as a property owners’
association.
26
2. Validity of the Amended Restrictions
In her summary-judgment response, Keenan argued that, even if ROPO had
the authority to act, it failed to obtain the proper approval from the property owners
to enact the Amended Restrictions.
ROPO asserted that it amended the restrictions pursuant to Property Code
section 204.005. See TEX. PROP. CODE § 204.005. Under section 204.005, a
property owners’ association has authority to approve and circulate a petition
relating to the extension of, addition to, or modification of existing restrictions. Id.
Such petition to extend, add to, or modify existing restrictions is effective if:
(1) the petition is approved by the owners, excluding lienholders,
contract purchasers, and the owners of mineral interests, of at
least 75 percent of the real property in the subdivision or a
smaller percentage required by the original dedicatory
instrument; and
(2) the petition is filed as a dedicatory instrument with the county
clerk of the county in which the subdivision is located.
Id. § 204.005(b). A property owners’ association must notify all record owners of
property in the subdivision in writing of the proposed extension, addition to, or
modification of the existing restrictions. Id. § 204.005(e).
Keenan argued that there is “no dispute that the [Amended Restrictions] are
not valid under section 204.005(b)” because ROPO “admits that it did not obtain
approval of the owners of 75% of the real property in the subdivision.” Her
argument is not supported by the evidence.
27
ROPO’s evidence shows that it, on June 2, 2006, ROPO, having determined
that it had a sufficient number of votes to approve the amendments, filed in the real
property records a “Certification of Receiving and Counting Ballots on Amendments
to Reservations, Restrictions, and Covenants Applicable to All Properties Located
Within River Oaks Additions.” The Certification stated that it had circulated to each
of the property owners in River Oaks a copy of the proposed Amended Restrictions,
a summary of the amendments, and a ballot, containing a date by which it had to be
returned to be counted. And, as required by section 204.005, the owners of at least
75 percent of the real property in River Oaks had voted in favor of and to approve
the Amended Restrictions. ROPO certified that:
According to the ownership records maintained by the Association, the
total square footage within all properties in the Subdivision [all sections
of River Oaks] is 32,602,253, and the owners of the properties in the
Subdivision containing a total square footage of 24,735,885 voted in
favor of and to approve the Amended Restrictions (75.87%). The
Ballots are and will be kept in the files of the Association.
Thus, even though the return date for the ballots was not until December 1, 2006,
ROPO, as early as June 2, 2006, already had the approval from the owners of “at
least 75 percent of the real property in the subdivision.” See id. § 204.005(b).
Keenan argues that ROPO failed to obtain the requisite vote on a section-by-
section basis in River Oaks. However, section 204.005(c) provides that
If a subdivision consisting of multiple sections, each with its own
restrictions, is represented by a single property owners’ association, the
approval requirement may be satisfied by obtaining approval of at least
28
75 percent of the owners on a section-by-section basis or of the total
number of properties in the property owners’ association’s jurisdiction.
Id. § 204.005(c) (emphasis added). Thus, subsection (c) provides an alternative that
ROPO was not required to utilize.
Keenan argues that ROPO improperly counted ballots circulated in 2005 in
achieving its totals. However, ROPO’s evidence shows that, in October 2004, it
sent a letter to each of the River Oaks property owners, with a list of proposed
amendments and a meeting invitation. In March 2005, ROPO sent each of the
property owners a copy of the final version of the proposed amended restrictions, a
summary of the amendments, a ballot, and a letter seeking an affirmative vote. In
January 2006, ROPO determined that the ballots it had circulated did not include a
date by which the property owner had to return the ballot for it to be counted,
pursuant to the Property Code. Thus, in February 2006, ROPO placed a stamp,
stating a due date of December 1, 2006, on each of the ballots that had been
previously submitted and returned the ballots to the respective property owners. In
an attached letter, ROPO asked the property owners to re-affirm and to re-submit
their votes by the due date. ROPO also sent a corrected ballot to each of the property
owners who had not previously voted. Thus, as ROPO explained, the presence of
the 2006 stamp on each ballot unequivocally established that it was not circulated
until 2006.
29
ROPO also presented the affidavit of its expert, Gregory S. Cagle, who
testified that the Amended Restrictions were properly approved by the property
owners. Cagle opined, based on his examination of the ballots related to the 2006
proposed amendments, that the ballots were “signed by the owners of property in the
River Oaks Subdivision and the Ballot Results Report accurately reflects as to each
affirmative ballot received: (1) the identity of the property for which the ballot
relates; (2) the square footage of such property; and (3) the section in which such
property is located.” Cagle testified:
Based on my analysis of the Ballot Results Report, the 2006
Declaration Amendment was approved by the owners of more than
75% of the real property (in terms of square footage) in the River Oaks
Subdivision. In order to form my expert opinion, I performed an audit
of the ballots cast by the owners of the real property subject to the 2006
Declaration Amendment (the “River Oaks Subdivision”) concerning
the approval of the 2006 Declaration Amendment using the 2006
Billing Roll utilized by the Association (the “2006 ROPO Master
Database”) and the 2006 Master Database of Properties generated by
Harris Central Appraisal District (the “2006 HCAD Database” ).
Cagle further testified, based on his analysis, that:
a. owners of 78.39% of the real property in the River Oaks
Subdivision (based on the square footage numbers from the 2006
ROPO Master Database) approved the 2006 Declaration
Amendment;
b. 82.00% of the owners of real property in the “fifth section ” of
River Oaks Addition, consisting of Blocks Twenty-Nine (29) and
Thirty (30), in River Oaks Section Five, a subdivision in Harris
County, Texas, according to the map or plat recorded in Volume
10, Page 18 , of the Map Records of Harris County, Texas
(hereinafter referred to as “Section Five”) (based on the number
30
of owners for each property contained therein as reflected in the
2006 HCAD Database) approved the 2006 Declaration
Amendment; and
c. Owners of 75.39% of the total number of properties in the
Association’s jurisdiction (based on the total number of
properties identified in the 2006 ROPO Master Database)
approved the 2006 Declaration.
Keenan complained that Cagle’s calculations were flawed because, in his
deposition, he testified that he counted ballots that were dated in 2005, prior to the
recirculation of the corrected ballots. The record shows, however, that Cagle
testified that he only counted ballots that contained both stamps, i.e., that were
circulated on or after February 8, 2006.
Keenan does not direct us to any evidence that raises a genuine issue of
material fact as to ROPO’s enforcement of the Amended Restrictions as arbitrary
and capricious on her asserted grounds.
Having concluded that ROPO presented evidence establishing its right to
judgment on its claim for breach of restrictive covenant and that Keenan did not
present evidence raising a genuine issue of material fact, we conclude that ROPO
conclusively established its right to judgment. We hold that the trial court did not
err in granting summary judgment in favor of ROPO on its claim for violation of a
restrictive covenant. See TEX. R. CIV. P. 166a(c); KPMG Peat Marwick, 988 S.W.2d
at 748.
31
B. ROPO’s Declaratory Claims
ROPO also moved for a summary judgment asserting that it was entitled as a
matter of law to declarations that the Amended Restrictions were validly enacted
and enforceable against Keenan’s Property; that the Amended Restrictions
constituted a valid contract between ROPO and Keenan; and that Keenan was
required to remove 1,260 square feet of impermeable surface from the Property to
bring it into compliance with the Amended Restrictions.
Declaratory judgments rendered by summary judgment are reviewed under
the same standards that govern summary judgments generally. Hourani v. Katzen,
305 S.W.3d 239, 248 (Tex. App.—Houston [1st Dist.] 2009, pet. denied). Texas
Civil Practice and Remedies Code section 37.004 provides that a “person interested
under a . . . written contract . . . may have determined any question of construction
or validity arising under the . . . contract . . . and obtain a declaration of rights, status,
or other legal relations thereunder.” TEX. CIV. PRAC. & REM. CODE § 37.004(a). A
contract “may be construed either before or after there has been a breach.” Id.
§ 37.004(b). In a declaratory-judgment action, a party who asserts a claim for
affirmative relief has the burden of proving its allegations. Alanis v. US Bank Nat’l
Ass’n, 489 S.W.3d 485, 500 (Tex. App.—Houston [1st Dist.] 2015, pet. denied).
As discussed above, ROPO presented evidence that the Amended Restrictions
were validly enacted and enforceable against the Property. Accordingly, we
32
conclude that the trial court did not err in granting ROPO summary judgment on its
claim for a declaration that the Amended Restrictions were validly enacted and
enforceable against Keenan’s Property.
In addition, restrictive covenants constitute a contract between an association
and a property owner. See Hourani, 305 S.W.3d at 251; Tien Tao Ass’n, Inc, v.
Kingsbridge Park Cmty. Ass’n, Inc., 953 S.W.2d 525, 533 (Tex. App.—Houston [1st
Dist.] 1997, no pet.). Thus, having concluded that the Amended Restrictions are
valid and enforceable, we conclude that the trial court did not err in declaring that
they constitute a valid contract between ROPO and Keenan. Notably, the evidence
reflects that Keenan herself voted in favor of the Amended Restrictions.
Finally, as discussed above, ROPO presented the affidavit of Probstfeld, who
testified, based on his survey and inspection, that the allowable impermeable surface
area of the Property is 6,580 square feet and that the total combined impermeable
surface area in place totals 7,840 square feet. As discussed, Keenan did not present
evidence raising a genuine issue of material fact. Thus, ROPO conclusively
established that Keenan exceeded the allowable impermeable surface area by 1,260
square feet. We conclude that the trial court did not err in granting summary
judgment for ROPO on its claim for a declaration requiring Keenan to remove 1,260
square feet of impermeable surface area from the Property to bring it into compliance
with the Amended Restrictions.
33
C. Keenan’s Counterclaim to Quiet Title
Keenan argues that the trial court erred in granting summary judgment in favor
of ROPO on her counterclaim to quiet title because the Amended Restrictions were
“not properly approved by the requisite number of properties in River Oaks.” Thus,
ROPO’s claim for violation of a restrictive covenant, if enforced, would interfere
with her use and enjoyment of the Property. And, the trial court erred in not
removing “this cloud on her title to the Property.”
To prevail on a claim to quiet title, Keenan must show (1) an interest in a
specific property, (2) that title to the property is affected by a claim by ROPO, and
(3) that the claim, although facially valid, is invalid or unenforceable. Vernon v.
Perrien, 390 S.W.3d 47, 61–62 (Tex. App.—El Paso 2012, pet. denied). Thus, her
suit to quiet title relies on the invalidity of ROPO’s claim to the Property. See Essex
Crane Rental Corp. v. Carter, 371 S.W.3d 366, 388 (Tex. App.—Houston [1st Dist.]
2012, pet. denied). Having concluded above that the Amended Restrictions are valid
and enforceable, we conclude that the trial court did not err in granting summary
judgment for ROPO on Keenan’s counterclaim to quiet title.
D. Keenan’s Counterclaim for Fair-Housing Violations
Keenan argues that the trial court erred in granting summary judgment in favor
of ROPO on her “fair-housing counterclaims and related defenses.” She brought a
counterclaim against ROPO for violations of the FHAA, TFHA, and HFHO. See 42
34
U.S.C. § 3604 (FHAA); TEX. PROP. CODE § 301.025 (TFHA); HOUSTON, TEX.,
CODE OF ORDINANCES, ch. 17, art. III, § 17-12(f) (2021) (HFHO).
ROPO argues that the trial court did not err in granting summary judgment in
its favor on Keenan’s counterclaim because a review of the record as a whole
demonstrates that there were no genuine issues of material fact. ROPO further
argues that the FHAA does not apply to Keenan’s single-family residence and that
this issue became moot upon Gaines’s death.
1. Fair-Housing Acts and Ordinance
In 1988, Congress amended the Fair Housing Act to prohibit discrimination
against disabled individuals in the national housing market. Groome Res. Ltd.,
L.L.C. v. Par. of Jefferson, 234 F.3d 192, 200–01 (5th Cir. 2000). In 1993, the Texas
Legislature enacted the TFHA to provide rights and remedies substantially
equivalent to those granted under federal law. See TEX. PROP. CODE § 301.002. Both
the FHAA and the TFHA make it unlawful:
To discriminate in the sale or rental, or to otherwise make unavailable
or deny, a dwelling to any buyer or renter because of a handicap of—
(A) that buyer or renter;
(B) a person residing in or intending to reside in that dwelling after
it is sold, rented, or made available; or
(C) any person associated with that buyer or renter.
42 U.S.C. § 3604(f)(1); see TEX. PROP. CODE § 301.025(a).
35
Similarly, it is unlawful:
To discriminate against any person in the terms, conditions, or
privileges of sale or rental of a dwelling, or in the provision of services
or facilities in connection with such dwelling, because of a handicap
of—
(A) that person; or
(B) a person residing in or intending to reside in that dwelling after
it is so sold, rented, or made available; or
(C) any person associated with that person.
42 U.S.C. § 3604(f)(2); see TEX. PROP. CODE § 301.025(b).
Under the FHAA and TFHA, “discrimination” includes:
(A) a refusal to permit, at the expense of the handicapped person,
reasonable modifications of existing premises occupied or to be
occupied by such person if such modifications may be necessary
to afford such person full enjoyment of the premises . . . [;]
(B) a refusal to make reasonable accommodations in rules, policies,
practices, or services, when such accommodations may be
necessary to afford such person equal opportunity to use and
enjoy a dwelling[.]
42 U.S.C. § 3604(f)(3); see TEX. PROP. CODE § 301.025(c).
A “handicap” is defined as (1) a physical or mental impairment that
substantially limits one or more of a person’s major life activities, (2) a record of
having such an impairment, or (3) being regarded as having such an impairment. 42
U.S.C. § 3602(h); see TEX. PROP. CODE § 301.003(6) (similarly defining
“disability”). A “dwelling” includes “any building, structure, or portion thereof
36
which is occupied as, or designed or intended for occupancy as, a residence by one
or more families.” 42 U.S.C. § 3602(b); see TEX. PROP. CODE § 301.003(8).
The FHAA and TFHA each provide that an “aggrieved person” may file a
civil action to obtain relief. 42 U.S.C. § 3613(a); see TEX. PROP. CODE § 301.151.
If a trial court finds that a discriminatory housing practice has occurred or is about
to occur, it may award the plaintiff actual and punitive damages and may order
injunctive relief. 42 U.S.C. § 3613(c); see TEX. PROP. CODE § 301.153. It may also
award certain attorney’s fees and costs. 42 U.S.C. § 3613(c); see TEX. PROP. CODE
§ 301.153.
The HFHO contains substantially similar provisions, including that a person
commits an offense if he:
Refuses to make reasonable accommodations in rules, policies,
practices, or services when the accommodations may be necessary to
afford a person with a disability equal opportunity to use and enjoy a
housing accommodation; . . . .
HOUSTON, TEX., CODE OF ORDINANCES, ch. 17, art. III, § 17-12(f)(2). The HFHO
also provides that “[a]n aggrieved person may file a civil action in state district
court” to obtain appropriate relief without regard to whether a complaint has been
filed for review by the fair housing administrator. Id. art. VI, sec. 17-51(a), (b). If
a trial court finds that a discriminatory housing practice has occurred, it may order
injunctive relief and may award damages, certain attorney’s fees, and costs. Id. art.
VI, sec. 17-51(d), (e).
37
2. Applicability
As a threshold matter, ROPO argues that Keenan’s “fair housing claims fail
as a matter of law because the [FHAA] does not apply to the Property.”4 ROPO
asserts that, in Meehl v. Wise, the court of appeals “squarely held” that the FHAA
“does not apply to single-family homes like Keenan’s.” 285 S.W.3d 561, 571 (Tex.
App.—Houston [14th Dist.] 2009, no pet.).
In Meehl, homeowners purchased two adjoining lots in a subdivision, on
which they began constructing a retreat center, consisting of four guest suites, for
persons with bipolar disorder. Id. at 564. Asserting that the subdivision deed
restrictions prohibited use of a lot for anything other than a single-family residence,
neighbors sued the homeowners. Id. The trial court rendered judgment for the
neighbors, permanently enjoining the homeowners from constructing the
community home. Id. On appeal, the homeowners argued that the trial court erred
in finding that they had failed to show that discrimination under the FHAA had
occurred or would occur, as a result of the enforcement of the restriction. Id. at 570.
4
The TFHA “provide[s] rights and remedies substantially equivalent to those granted
under federal law.” TEX. PROP. CODE § 301.002. The language in TFHA
subsections 301.025(a), (b), and (c)(2) is nearly identical to that in FHAA
subsections 3604(f)(1), (2), and (3)(B). Chavez v. Aber, 122 F. Supp. 3d 581, 601
(W.D. Tex. 2015) (comparing TEX. PROP. CODE § 301.025 with 42 U.S.C.
§ 3604(f)). The HFHO contains substantially similar provisions. See HOUSTON,
TEX., CODE OF ORDINANCES, ch. 17, art. III, § 17-12(a), (b), (e), and (f).
Accordingly, we analyze Keenan’s claims in the context of the federal act’s
provisions, but the discussion applies equally to her claims brought under the state
and city analogues.
38
They argued that FHAA section 3604(f)(1), (2), and (3)(B) made it unlawful to
discriminate in the provision of housing based on a handicap or to refuse to make
reasonable accommodations as necessary to afford an equal opportunity to use and
enjoy a dwelling. Id. at 570–71.
The court of appeals in Meehl concluded, based on FHAA section 3603(b)(2),
that “these provisions [section 3604(f)(1), (2), and (3)(B)] do not apply to ‘rooms or
units in dwellings containing living quarters occupied or intended to be occupied by
no more than four families living independently of each other, if the owner actually
maintains and occupies one of such living quarters as his residence.’” Id. at 571
(quoting 42 U.S.C. § 3603(b)(2)). Because it was undisputed that the house at issue
was a single-family residence in which the homeowners resided and it was not
intended to be occupied by more than four families, the court concluded that “section
3604(f) [did] not apply.” Id. The court held that, apart from inapplicable exception
for certain publications, “[s]ection 3603(b)(2) exempts resident homeowners from
the protections of all provisions of section of 3604.” Id.We disagree that section 3603 should be read to broadly “exempt[] resident
homeowners from the protections of all provisions of section 3604.” See id. The
United States Supreme Court has instructed that exemptions from the FHAA are to
be read narrowly. City of Edmonds v. Oxford House, Inc., 514 U.S. 725, 731–32
(1995).
39
FHAA section 3603(a) provides that the “prohibitions against discrimination
in the sale or rental of housing set forth in section 3604 of this title shall apply . . .
to all dwellings [owned, operated, or funded by the federal government] and to all
other dwellings except as exempted by subsection (b).” 42 U.S.C. § 3603(a)(2)
(emphasis added). Subsection (b) provides that “[n]othing in section 3604,” with
inapplicable exception, shall apply to:
(1) any single-family house sold or rented by an owner: Provided,
That such private individual owner does not own more than three
such single-family houses at any one time: Provided further,
That in the case of the sale of any such single-family house by a
private individual owner not residing in such house at the time of
such sale or who was not the most recent resident of such house
prior to such sale, the exemption granted by this subsection shall
apply only with respect to one such sale within any twenty-four
month period: Provided further, That such bona fide private
individual owner does not own any interest in, nor is there owned
or reserved on his behalf, under any express or voluntary
agreement, title to or any right to all or a portion of the proceeds
from the sale or rental of, more than three such single-family
houses at any one time: Provided further, That after December
31, 1969, the sale or rental of any such single-family house shall
be excepted from the application of this subchapter only if such
house is sold or rented (A) without the use in any manner of the
sales or rental facilities or the sales or rental services of any real
estate broker, agent, or salesman, or of such facilities or services
of any person in the business of selling or renting dwellings, or
of any employee or agent of any such broker, agent, salesman, or
person and (B) without [certain prohibited publications]; . . . , or
(2) rooms or units in dwellings containing living quarters occupied
or intended to be occupied by no more than four families living
independently of each other, if the owner actually maintains and
occupies one of such living quarters as his residence.
40
42 U.S.C. § 3603(b) (emphasis in original).
Thus, section 3603(b) exempts sales or rental transactions (homes or rooms)
conducted by certain owners of single-family homes.5 See id. It does not exempt
land-use actions affecting single-family homes, as here. See Smith & Lee Assoc.,
Inc. v. City of Taylor, Mich., 13 F.3d 920, 924 n.5 (6th Cir. 1993) (rejecting that city
was exempt from section 3604(f) liability by reason of section 3603(b) and holding
section 3603(b) exemption applicable only to sale or rental transactions by single-
family homeowners and not to municipal actions affecting single-family homes).
5
Notably, the TFHA analogue clearly exempts certain sales or rental transactions
conducted by certain owners of single-family homes:
(a) Sections 301.021 . . . and 301.025 do not apply to:
(1) the sale or rental of a single-family house sold or rented by the
owner if:
(A) the owner does not:
(i) own more than three single-family houses at any one
time; or
(ii) own any interest in . . . more than three single-
family houses at any one time; and
(B) the house is sold or rented without:
(i) the use of the sales or rental facilities or services of a
broker, agent, or salesperson . . . ; or
(ii) [certain prohibited advertisements]; or
(2) the sale or rental of the rooms or units in a dwelling containing
living quarters occupied by or intended to be occupied by not
more than four families living independently of each other, if
the owner maintains and occupies one of the living quarters as
the owner’s residence.
TEX. PROP. CODE § 301.041 (“Certain Sales and Rentals Exempted”).
41
Indeed, the “legislative history of the [FHAA] reflects that when a zoning or
land-use ordinance restricts the ability of handicapped individuals [to live] in the
community of their choice, that regulation is unlawful.” Robinson v. City of
Friendswood, 890 F.Supp. 616, 622 (S.D. Tex. 1995) (citing H.R. Rep. No. 711,
100th Cong., 2d Sess. 24 (1988), reprinted in 1988 U.S. Code Cong. & Admin. News
2173, 2183). The House Report reflects that 3604(f) applies “to state or local land
use and health and safety laws, regulations, practices or decisions which discriminate
against individuals with handicaps” and is “intended to prohibit the application of
special requirements through land-use regulations, restrictive covenants, and
conditional or special use permits that have the effect of limiting the ability of such
individuals to live in the residence of their choice in the community.” H.R. Rep. No.
711, 100th Cong., 2d Sess. 24 (emphasis added). Thus, section 3604(f) applies “not
only to sellers or landlords, but to sophisticated practices such as enforcing zoning
or land use laws that have the effect of denying housing to the disabled.” Robinson,
890 F.Supp. at 622.
Here, Keenan alleges that ROPO’s enforcement of a restrictive covenant and
refusal of her requested accommodation had the effect of denying housing to her
disabled mother-in-law, in violation of section 3604(f). Thus, Keenan alleges that
ROPO took discriminatory enforcement action affecting her Property. We conclude
that the FHAA applies to the instant proceedings.
42
3. Mootness
ROPO argues that Keenan’s counterclaims for violations of the FHAA,
TFHA, and HFHO are moot. The record shows that the trial court took judicial
notice in its judgment that Keenan’s mother-in-law, Gaines, died during the course
of the proceedings.
The mootness doctrine implicates subject-matter jurisdiction. Trulock v. City
of Duncanville, 277 S.W.3d 920, 923 (Tex. App.—Dallas 2009, no pet.). An
appellate court is prohibited from deciding a moot controversy or rendering an
advisory opinion. See Nat’l Collegiate Athletic Ass’n v. Jones, 1 S.W.3d 83, 86
(Tex. 1999); City of Farmers Branch v. Ramos, 235 S.W.3d 462, 469 (Tex. App.–
Dallas 2007, no pet.) (noting that courts may only decide issues presenting “a live
controversy at the time of the decision”). If a controversy ceases to exist or the
parties lack a legally cognizable interest in the outcome at any stage, the case
becomes moot. Allstate Ins. Co. v. Hallman, 159 S.W.3d 640, 642 (Tex. 2005);
Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001) (noting that “controversy must
exist between the parties at every stage of the legal proceedings, including the
appeal”). The same is true if an appellate court’s judgment cannot have any practical
legal effect upon a then existing controversy. Zipp v. Wuemling, 218 S.W.3d 71, 73
(Tex. 2007) (“An appeal is moot when a court’s action on the merits cannot affect
the rights of the parties.”).
43
“The FHA allows any ‘aggrieved person’ to bring a housing-discrimination
lawsuit.” Bank of Am. Corp. v. City of Miami, Fla., 137 S. Ct. 1296, 1303 (2017)
(citing 42 U.S.C. § 3613(a)). The statute defines an “aggrieved person” as “any
person” who “claims to have been injured by a discriminatory housing practice.” Id.(citing 42 U.S.C. § 3602(i)); see also TEX. PROP. CODE § 301.003(1). There is not a
requirement that the complainant be the disabled person. In addition, under the
FHAA, “a violation occurs when the disabled resident is first denied a reasonable
accommodation.” Groome Res., 234 F.3d at 199. The FHAA, TFHA, and HFHO
provide for injunctive relief, actual and punitive damages, reasonable attorney’s
fees, and costs. See 42 U.S.C. § 3613(c); TEX. PROP. CODE § 301.153; HOUSTON,
TEX., CODE OF ORDINANCES, ch. 17, art. VI, sec. 17-51(d), (e).
Here, Keenan, and not Gaines, brought fair-housing claims against ROPO
based on its alleged refusal in 2013 to allow Keenan to exceed the impermeable
cover restriction at the Property in order to accommodate a disabled person. See 42
U.S.C. §§ 3604(f), 3613(a)). The asserted violation occurred in 2013. See Groome
Res., 234 F.3d at 199. Keenan’s requested relief includes actual and punitive
damages, attorney’s fees, and costs. See 42 U.S.C. § 3613(c); TEX. PROP. CODE
§ 301.153; HOUSTON, TEX., CODE OF ORDINANCES, ch. 17, art. VI, sec. 17-51(d), (e).
Whether Keenan can recover her asserted damages, attorney’s fees, and costs
remains a live controversy. See Hallman, 159 S.W.3d at 642; Briones v. Brazos
44
Bend Villa Apartments, 438 S.W.3d 808, 813 (Tex. App.—Houston [14th Dist.]
2014, no pet.) (concluding that fee dispute constituted live controversy).
Accordingly, we hold that Keenan’s fair-housing counterclaim is not moot.
4. Fair-Housing Counterclaim
In her counterclaim against ROPO, Keenan alleges that ROPO “refus[ed] to
make reasonable accommodations in rules, policies, practices, or services, when
such accommodations may be necessary to afford [a disabled person] equal
opportunity to use and enjoy a dwelling[.]” 42 U.S.C. § 3604(f)(3)(b).
Again, the FHAA makes it unlawful to discriminate in a sale or rental of, or
to otherwise make unavailable or deny, a dwelling to any buyer or renter or to
discriminate against any person in the terms, conditions, or privileges of a sale or
rental, or in the provision of services or facilities in connection with such dwelling,
because of a “handicap” of (A) a buyer or renter; (B) a person “residing in or
intending to reside in” the dwelling after it is sold, rented, or made available; or
(C) any associated person. Id. § 3604(f)(1), (2). “For purposes of [subsection (f)],
discrimination includes . . . a refusal to make reasonable accommodations in rules,
policies, practices, or services, when such accommodations may be necessary to
afford such person equal opportunity to use and enjoy a dwelling.” Id.
§ 3604(f)(3)(B).
45
Thus, to establish her claim of discrimination under section 3604(f), Keenan
must prove: (1) that she or a “person residing in or intending to reside in” her
dwelling is “handicapped,” as defined in section 3602(h); (2) that ROPO knew or
should reasonably have been expected to know of the disability; (3) that
accommodation of the handicap may be necessary to afford the disabled person an
equal opportunity to use and enjoy the dwelling; (4) that the accommodation is
reasonable; and (5) that ROPO refused to make the requested accommodation. See
42 U.S.C. §§ 3602(h), 3604(f)(1), (2), (3)(B); Chavez v. Aber, 122 F. Supp. 3d 581,
595 (W.D. Tex. 2015); see, e.g., Eastwood v. Willow Bend Lake Homeowners Ass’n,
Inc., No. 4:20-CV-00400, 2020 WL 3412409, at *2–3 (E.D. Tex. June 22, 2020).
In its motion for summary judgment, ROPO argued, with respect to the first
and second elements, that the summary-judgment evidence establishes that, at the
time she sought an accommodation, Keenan failed to identify a handicapped
individual who resided or intended to reside at the Property. See 42 U.S.C.
§§ 3602(h), 3604(f)(1), (2), (3)(B). And, thus, ROPO did not know, and could not
have reasonably been expected to know, of a disability at the time that it denied
Keenan’s requested accommodation, i.e., Proposal 2. See 42 U.S.C. § 3604(f)(3)(B);
Groome Res., 234 F.3d at 199 (holding FHAA violation occurs when disabled
resident is “first denied a reasonable accommodation”).
46
In support, ROPO presented Keenan’s Proposal 2, dated February 20, 2013,
which contains notations that Keenan’s stated objectives in seeking to exceed the
impermeable cover limitation were access, security, and “trying to get cars off the
street.” ROPO also presented the deposition testimony of Jeffrey L. Lyman, a
member of the Board and chairman of the ROPO Building and Restrictions
Committee in 2013. Lyman testified that, at a committee meeting in March 2013,
Keenan stated that she sought to exceed the impermeable cover limitation on behalf
of her niece, who “had some sort of debilitating disease that ultimately might require
her to come live with them.” And, “as a result, they wanted to accommodate the
potential need for her living there by installing these handicap access elements in
their house.”
ROPO’s evidence shows that, in a March 19, 2013 letter to Keenan, ROPO
notified her that it would not approve Proposal 2, but that she could proceed with
construction as previously approved in Proposal 1. And, in a December 2, 2013
letter to Keenan, ROPO notified her that it had discovered that she had commenced
construction in accordance with the rejected Proposal 2. ROPO demanded that
Keenan cease all installation of exterior surfaces and submit plans to remedy the
violation of the impermeable-surfaces limitation.
ROPO’s evidence also shows that, at a December 4, 2013 committee meeting,
Keenan stated that she had commenced construction in accordance with Proposal 2
47
because she volunteers and hosts events a minimum of once per month, “special
events require additional space,” she was trying to have the “most gracious access”
to the house possible, and that she was “not required to change [her] lifestyle.”
ROPO also presented Keenan’s July 12, 2018 deposition testimony, in which she
confirmed that this discussion was accurate.
ROPO’s evidence shows that, in a December 17, 2013 letter to ROPO,
Keenan’s counsel stated that Keenan was close to completing the construction of a
new house on the Property and that, during construction, her in-laws had “suffered
a decline in their health,” such that her mother-in-law “now requires a wheelchair.”
Accordingly, Keenan and her husband “modified their original plans to provide
wheelchair access and other accommodations to [her in-laws].” However, the letter
neither identified Keenan’s mother-in-law nor her handicap. See 42 U.S.C.
§ 3604(f)(1), (2), (3)(B).
On May 20, 2015, ROPO moved to compel Keenan to identify the mother-in-
law and her handicap. See 42 U.S.C. § 3604(f)(3)(B); see also § 3602(h) (defining
“handicap”). At a June 1, 2015 hearing on the motion to compel, ROPO complained
that Keenan, in order to support her claim under the FHAA, was required to identify
the disabled person needing the asserted accommodation and that Keenan had
refused. Keenan’s counsel responded that because Keenan’s mother-in-law would
not be called to testify at trial, Keenan was not required to identify her.
48
Subsequently, during her June 17, 2015 deposition testimony, Keenan identified her
mother-in-law as Lavera Gaines and testified that she had arthritis.
The FHAA prohibits a “refusal to make reasonable accommodations in rules,
policies, practices, or services, when such accommodations may be necessary to
afford such person equal opportunity to use and enjoy a dwelling[.]” 42 U.S.C.
§ 3604(f)(3)(B) (emphasis added). That is, a plaintiff must actually request an
accommodation and be refused in order to bring a claim under the FHAA. Schwarz
v. City of Treasure Island, 544 F.3d 1201, 1219 (11th Cir. 2008). The duty to make
a reasonable accommodation
does not simply spring from the fact that the handicapped person wants
such an accommodation made. Defendants must instead have been
given an opportunity to make a final decision with respect to [the]
request, which necessarily includes the ability to conduct a meaningful
review of the requested accommodation to determine if such an
accommodation is required by law.
Id. at 1218–19. “In other words, [a defendant] cannot be liable for refusing to grant
a reasonable and necessary accommodation if [it] never knew the accommodation
was in fact necessary.” Id. at 1219 (internal quotations omitted).
Here, the evidence shows that it was not until two years after ROPO’s March
19, 2013 rejection of Keenan’s Proposal 2, eighteen months after litigation had
commenced, and only in response to a motion to compel, that she first revealed the
identity of her mother-in-law to ROPO and the nature of her handicap. Thus,
ROPO’s summary-judgment evidence establishes that Keenan did not, before ROPO
49
denied her requested accommodation, identify to ROPO any individual as
“handicapped,” as defined by the FHAA. See 42 U.S.C. § 3604(f)(1), (2), (3)(B);
Groome Res., 234 F.3d at 199 (“Under the Fair Housing Act . . . a violation occurs
when the disabled resident is first denied a reasonable accommodation.”).
We conclude that ROPO’s summary judgment evidence establishes its right
to judgment against Keenan on her counterclaim for violations of the FHAA, TFHA,
and HFHO. See Siegler, 899 S.W.2d at 197. Accordingly, the burden shifted to
Keenan to present evidence raising a genuine issue of material fact precluding
summary judgment. See id.
In her summary-judgment response, Keenan asserted that she asked ROPO to
“allow her to exceed the hardscape limitation in the [Amended Restrictions] to
accommodate her handicapped mother- and father-in-law” on March 16, 2013, i.e.,
three days before ROPO’s March 19, 2013 rejection of Proposal 2. In support, she
cited the following portion of her deposition testimony:
Q. March 16, 2013 was the first time that you asked for an
accommodation for a disabled person, isn’t that correct?
A. That is correct.
Q. And for whom were you asking for the accommodation? I mean,
what is the name or the identity of the disabled person for whom
you were requesting an accommodation?
A. My husband’s mother and father.
Q. And can you give my their full names, please?
A. Well, his father is since deceased, but it’s Charles R. Gains.
Q. Uh-huh.
50
A. And Lavera Gaines.
Q. Were either Charles R. Gains or Lavera Gaines living with you
at [the Property]?
A. No, ma’am.
Keenan also quoted a lengthy portion of her deposition testimony in which
she described learning that her in-laws needed to come and live with her and her
husband. However, in the quoted portion of her deposition, Keenan testified that, at
the time that she first learned about her in-laws need to come and live with her: “My
house was already constructed at that point, to a point where it was—you know, we
were within six months or so of moving in . . . .” And, she testified that she moved
into the house in 2014.
Keenan further testified that, at the time she submitted Proposal 2 to ROPO,
in which she sought the accommodation, she was unaware of anyone who actually
needed an accommodation. Rather, only she and her husband resided at the
Property, and she sought it for herself and her husband for the future, as follows:
Q. Well, Ms. Keenan, you testified that Mr. Gaines, the senior Mr.
Gaines, informed you in November of 2011 that they were going
to have to come live with you. The plans you submitted to ROPO
were dated in 2011 and did not include—
A. I don’t believe that’s correct.
Q. I believe it is.
A. It was—
Q. Are you changing your testimony, Ms. Keenan?
51
A. No, ma’am. I’m clarifying what I—the dates I told you, it was
within less than six months of when we moved in, which was in
[20]14. So that . . . .
Q. That’s not what you previously testified to, Ms. Keenan.
A. Well, then I misspoke. Because it was—the timeline is not—
what you just told me is not correct. We didn’t know that that
far in advance.
Q. You knew, however, Ms. Keenan, that someone with a disability
was going to be living in your home in 2011 when you submitted
plans?
A. No, ma’am.
Q. So all the handicap accessibility features that you planned into
your home —
A. Were for my husband and myself. For future.
....
A. Because at the time, 2011, both my husband and I were hale and
hearty. . . .
(Emphasis added.) Thus, Keenan later “clarif[ied]” that she did not know that her
mother- and father-in-law needed the accommodation at issue until it “within less
than six months of when [Keenan] moved in, which was in [20]14.”
Further, during her 2018 deposition, when Keenan was asked whether she was
aware that none of the members of the Board or Committee recalled her having ever
mentioned Gaines at any of the meetings prior to December 2013, she replied in the
negative. When asked whether she had specifically named Gaines, she replied: “I
don’t recall if I did or not.”
Keenan also points to her counsel’s December 17, 2013 letter to ROPO,
“notifying” it that Keenan was close to completing the construction of a new house
52
on the Property and that her mother-in-law had suffered a decline such that she “now
requires a wheelchair.” However, this letter is dated 9 months after ROPO’s March
19, 2013 rejection of Proposal 2. In addition, the letter neither identifies Keenan’s
mother-in-law nor any handicap.
Keenan also points to a December 20, 2013 letter from ROPO to Keenan’s
counsel, in which she asserts that ROPO “confirmed that [Keenan] had informed
[ROPO] during the approval process that she had a disabled family member that
required modification to her landscaping plan.” The letter reflects that ROPO
reiterated that, on March 6, 2013, Keenan submitted revised landscape plans that
were significantly different than those submitted in November 2011. Among other
modifications, the proposed impermeable space increased to 7,845, which was well
above that allowed for the Property. ROPO noted that this request would, therefore,
require a variance. The revised landscape plan also added a raised landing and steps
on three sides at the front door. As this element was over the front setback line for
the home, a variance was also required for its approval. ROPO noted that, in support
of her request, Keenan had stated that she “needed the additional space and entryway
modifications because they entertained often” and because Keenan’s “niece (who is
handicapped) may need to live with them in the future.” On March 19, 2013, ROPO
advised Keenan that it had denied her requested variance, but that she could
commence construction based on her previous plan, i.e., Proposal 1. The letter does
53
not identify the niece, identify a handicap, state that the niece required handicap
accessibility, or assert that the niece resided or intended to reside at the Property.
Notably, the letter also does not mention Gaines.
Evidence raises a genuine issue if reasonable jurors could differ in their
conclusions in light of all of the summary-judgment evidence. Mayes, 236 S.W.3d
at 755. Here, ROPO’s evidence establishes that Keenan did not, at the time ROPO
denied her requested accommodation, i.e., Proposal 2, identify a handicapped
individual, as defined in section 3602(h), who resided or intended to reside at the
Property. See 42 U.S.C. § 3604(f)(1), (2), (3)(B). Thus, the evidence establishes
that ROPO did not know, and could not have reasonably been expected to know, of
a disability at the time that it denied Keenan’s requested accommodation, i.e.,
Proposal 2. See 42 U.S.C. § 3604(f)(1), (2), (3)(B); TEX. PROP. CODE
§ 301.025(c)(2); HOUSTON, TEX., CODE OF ORDINANCES, ch. 17, art. III, sec. 17-
12(f)(2); Groome Res., 234 F.3d at 199 (“Under the Fair Housing Act . . . a violation
occurs when the disabled resident is first denied a reasonable accommodation.”).
And, Keenan did not present evidence raising a genuine fact issue as to these
elements.
Accordingly, we conclude that ROPO conclusively established its right to
judgment on Keenan’s fair-housing counterclaim. See Schwarz, 544 F.3d at 1219(holding defendant “cannot be liable for refusing to grant a reasonable and necessary
54
accommodation if [it] never knew the accommodation was in fact necessary”);
Hawn v. Shoreline Towers Phase 1 Condo. Ass’n, Inc., 347 F. App’x 464, 468 (11th
Cir. 2009) (holding that trial court did not err in granting summary judgment for
condominium association on property owner’s federal and state fair-housing act
claims because his evidence, in which he presented unclear and inconsistent
explanations as to nature and extent of his disability and refused to comply with
subsequent requests for reasonable documentation, thus preventing association from
conducting meaningful review of his application, was insufficient to raise fact issue
on association’s knowledge of disability and necessity of accommodation).
We hold that the trial court did not err in granting summary judgment in favor
of ROPO on Keenan’s fair-housing counterclaim. See TEX. R. CIV. P. 166a(c);
Martinez, 941 S.W.2d at 911.
We overrule Keenan’s first issue.
Evidentiary Issues
In her second issue, Keenan asserts that the trial court erred in excluding
portions of her summary-judgment evidence. She challenges the exclusion of
(1) portions of the affidavit of Jacobus and two attachments; (2) portions of the
affidavit of Murphy and two attachments; and (3) the affidavit of Valentine.
We review a trial court’s decision to admit or exclude evidence for an abuse
of discretion. Owens-Corning Fiberglass Corp. v. Malone, 972 S.W.2d 35, 43 (Tex.
55
1998). “[I]n addition to showing an abuse of discretion, a party complaining of error
in the exclusion of evidence must also show that the trial court’s error was
reasonably calculated to cause, and probably did cause, the rendition of an improper
judgment.” Madison v. Williamson, 241 S.W.3d 145, 151 (Tex. App.—Houston [1st
Dist.] 2007, pet. denied); see TEX. R. APP. P. 44.1(a)(1); City of Brownsville v.
Alvarado, 897 S.W.2d 750, 753 (Tex. 1995).
1. Jacobus
Keenan complains that the trial court erred in excluding portions of the
affidavit of Jacobus, an attorney who examined the ROPO ballots and the Langdon
ballots and presented a conclusion that ROPO did not obtain sufficient approval of
the proposed Amended Restrictions. She also complains that the trial court erred in
striking the Langdon ballots and rescission forms.
ROPO moved to strike portions of the Jacobus affidavit because the trial court
had previously entered an order striking Keenan’s designation of Jacobus as an
expert insofar as he was to offer legal opinions and because Jacobus’s testimony was
conclusory. It moved to strike the Langdon ballots and rescission forms, which were
created and circulated by a property owner not affiliated with ROPO, as having no
legal effect.
Expert affidavits opposing a motion for summary judgment must present
probative evidence of the facts at issue. Ryland Group v. Hood, 924 S.W.2d 120,
56
122 (Tex. 1996). In addition, conclusory statements, not supported by factual
allegations, are insufficient to defeat summary judgment. Brownlee v. Brownlee,
665 S.W.2d 111, 112 (Tex. 1984). A statement is conclusory if it provides a legal
conclusion but does not provide the underlying facts to support the conclusion. See
Pipkin v. Kroger Tex., L.P., 383 S.W.3d 655, 670 (Tex. App.—Houston[14th Dist.]
2012, pet. denied).
In his affidavit, Jacobus offered legal conclusions, in contravention of the trial
court’s prior order. In addition, he offered conclusions “based on his audit” of the
total votes received without explaining any of his underlying methodology. Notably,
he states in his affidavit that he reviewed the Langdon ballots, which were not
created or circulated by ROPO and thus are of no legal effect. We conclude that the
trial court did not err in excluding the complained-of testimony and Langdon ballots
and rescission forms.
2. Murphy
Keenan complains that the trial court erred in excluding portions of the
affidavit of Murphy, an architect and accessibility specialist, who testified regarding
the reasonableness and necessity of the requested accommodation, i.e., exceeding
the impermeable cover limitations in the Amended Restrictions. She also complains
that the trial court struck his attached “General Site and Building Elements,”
discussing handicap accessibility, and his letter, dated December 3, 2013, containing
57
his opinions on the suitability and necessity of the parking area and loading zones at
the Property.
Because we held above that the trial court did not err in granting summary
judgment for ROPO on Keenan’s fair-housing claim based on the first and second
elements, i.e., identifying a person residing or intending to reside at the Property as
“handicapped” under the FHAA, we do not reach the third and fourth elements of
her claim, i.e., whether the requested accommodation was reasonable and necessary.
Because the Murphy evidence speaks to the third and fourth elements, we do not
reach whether the trial court erred in excluding this evidence.
3. Valentine
Keenan complains that the trial court erred in excluding the affidavit of Paul
M. Valentine, a registered professional surveyor, who testified that he performed a
survey of the Property on February 11, 2014 and that “the area of the house is 3,098
square feet, the area of the garage is 950 square feet, the area of the concrete flatwork
is 3,231, and the total surface area of these improvements is 7,279 square feet.”
Even were we to conclude that the trial court erred in excluding Valentine’s
affidavit, Keenan cannot show that such error was reasonably calculated to cause,
and probably did cause, the rendition of an improper judgment. See TEX. R. APP. P.
44.1(a)(1). Valentine’s calculations approximated those of ROPO’s expert,
Probstfeld, who testified that, based on his October 8, 2014 survey and his inspection
58
of the Property, the combined area of improvements and impermeable surfaces on
the Property totaled 7,840 square feet. Further, as discussed above, Keenan
judicially admitted that the existing hardscape on the Property totaled 7,331 square
feet. Thus, Valentine’s affidavit is cumulative of other evidence, including Keenan’s
admission that she exceeded the impermeable surface limitation in the Amended
Restrictions.
We overrule Keenan’s second issue.
Conclusion
We affirm the trial court’s judgment.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Kelly and Landau.
59