Opinion
NO. 03-14-00714-CV
12-16-2016
Kevin Tarr, Appellant v. Lantana Southwest Homeowners' Association, Inc., Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT
NO. D-1-GN-12-002467, HONORABLE RHONDA HURLEY, JUDGE PRESIDING
MEMORANDUM OPINION
This case involves a dispute between homeowner Kevin Tarr and Lantana Southwest Homeowners' Association, Inc. Tarr challenges the trial court's summary judgment finding that he violated a single-family restrictive covenant in the Declaration of Covenants, Conditions and Restrictions for Lantana Southwest Single Family Properties. For the reasons that follow, we will affirm in part and reverse and remand in part.
BACKGROUND
Lantana sued Tarr for breach of a single-family restrictive covenant in the Declaration of Covenants by leasing portions of his home to unrelated individuals whom Tarr claims are recovering alcohol and drug addicts. Lantana sought (1) an injunction prohibiting Tarr from leasing a portion of his home for any purpose other than a single-family residence and (2) attorney's fees under Texas Property Code section 5.006. See Tex. Prop. Code § 5.006 ("In an action based on breach of a restrictive covenant pertaining to real property, the court shall allow to a prevailing party who asserted the action reasonable attorney's fees . . . ."). In response, Tarr raised affirmative defenses based on various state and federal disability-protection statutes, including the federal Fair Housing Act ("FFHA"), Texas Fair Housing Act ("TFHA"), federal Americans with Disabilities Act ("ADA"), and federal Rehabilitation Act. See 42 U.S.C. § 3604(f)(1) (FFHA); Tex. Prop. Code § 301.025(a) (TFHA); 42 U.S.C. § 12132 (ADA); 29 U.S.C. § 794 (Rehabilitation Act). He also filed counterclaims based on those statutes. In support of his claims and defenses, Tarr alleged that his tenants were recovering alcohol and drug addicts and argued that his use of his property as a "group home" for such individuals is statutorily protected.
Lantana filed a combined traditional and no-evidence motion for partial summary judgment with respect to his affirmative defenses. The no-evidence motion alleged, in relevant part, that Tarr could produce no evidence that (1) his tenants met the requirements of the disability-protection statutes or (2) that Lantana was subject to the ADA and Rehabilitation Act. The trial court denied the traditional motion for summary judgment but granted the no-evidence motion thereby disposing of Tarr's affirmative defenses.
Lantana filed a second motion for summary judgment against Tarr's counterclaims and on Lantana's claim for breach of contract. In support of the former, Lantana cited the no-evidence summary judgment disposing of Tarr's affirmative defenses and argued that the court had already ruled as a matter of law that Tarr was not entitled to the statutory protections raised in his counterclaims. In support of the latter, it produced evidence that Tarr was leasing his property to unrelated tenants in violation of the restrictive covenant. The trial court granted summary judgment in favor of Lantana on Tarr's counterclaims and on Lantana's breach-of-contract claim.
Lantana filed a motion for final summary judgment, in which it sought an injunction and attorney's fees. The trial court granted a third partial summary judgment ordering the injunction. In its final summary judgment, the court incorporated the three partial summary judgments and awarded attorney's fees to Lantana.
Tarr appeals from the final summary judgment and challenges all three partial summary judgments and the award of attorney's fees.
STANDARD OF REVIEW
We review a trial court's summary-judgment rulings de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). We take as true all evidence favorable to the nonmovant and indulge every reasonable inference in the nonmovant's favor. Id. When the trial court does not specify the grounds for granting the summary judgment, we must uphold the judgment if any of the grounds asserted in the motion and preserved for appellate review are meritorious. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003).
To prevail on a traditional motion for summary judgment, the moving party must demonstrate that no material fact issue exists and that it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000). Specifically, the moving party must establish each element of her claim as a matter of law or negate an element of the respondent's claim or defense as a matter of law. See M.D. Anderson, 28 S.W.3d at 23.
A movant seeking a no-evidence summary judgment must assert that there is no evidence to support an essential element of the nonmovant's claim on which the nonmovant would have the burden of proof at trial. Tex. R. Civ. P. 166a(i); Hahn v. Love, 321 S.W.3d 517, 523-24 (Tex. App.—Houston [1st Dist.] 2009, pet. denied). Once the motion is filed, the burden shifts to the nonmovant to present evidence raising a genuine issue of material fact as to each of the elements challenged in the motion. Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009). A no-evidence motion should be granted when there is a complete absence of evidence of a vital fact or the evidence offered to prove a vital fact is no more than a mere scintilla. Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). Less than a scintilla of evidence exists when the evidence is "so weak as to do no more than create a mere surmise or suspicion" of a fact. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003) (internal quotations omitted). More than a scintilla of evidence exists when the evidence "rises to a level that would enable reasonable and fair-minded people to differ in their conclusions." Id. (internal quotations omitted).
Finally, we review a trial court's issuance of injunctive relief for an abuse of discretion. Operation Rescue-Nat'l v. Planned Parenthood of Hous. & S.E. Tex., Inc., 975 S.W.2d 546, 560 (Tex. 1998). The test for an abuse of discretion is not whether, in the opinion of the reviewing court, the facts present an appropriate case for the district court's action but "whether the court acted without reference to any guiding rules and principles." Cire v. Cummings, 134 S.W.3d 835, 839 (Tex. 2004) (internal quotations omitted). A court may issue injunctive relief on summary judgment only if the pleadings, depositions, admissions, and affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Jim Rutherford Invs., Inc. v. Terramar Beach Cmty. Ass'n, 25 S.W.3d 845, 848 (Tex. App.—Houston [14th Dist.] 2000, pet. denied).
DISCUSSION
I. Applicable statutory framework
The FFHA, TFHA, ADA, and Rehabilitation Act protect persons who are discriminated against because of a handicap or disability. Under the FFHA and TFHA, it is unlawful to discriminate on the basis of a handicap in the sale or rental of a dwelling or to otherwise make a dwelling unavailable to any buyer or renter. See 42 U.S.C. § 3604(f)(1); Tex. Prop. Code § 301.025(a). The ADA and Rehabilitation Act prohibit discrimination based on disability by public entities: The ADA requires that "[n]o qualified individual with a disability, by reason of such disability, be excluded from participation in or denied the benefits of the services, programs, or activities of a public entity or be subjected to discrimination by any such entity." 42 U.S.C. § 12132. The Rehabilitation Act provides that "[n]o otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . . . ." 29 U.S.C. § 794.
Lantana's no-evidence motion for summary judgment against Tarr's affirmative defenses alleged that there was no evidence that (1) Lantana is a public entity and thus subject to the ADA; (2) Lantana receives federal financial assistance and is thus subject to the Rehabilitation Act; and (3) Tarr's tenants (and prospective tenants) are disabled or handicapped as defined under those statutes.
In response, Tarr argued only that his tenants, as recovering drug and alcohol addicts, were disabled or handicapped as defined under those statutes and offered supporting evidence. He did not, however, respond to or produce evidence refuting Lantana's allegations regarding the absence of evidence of the other elements of the ADA and Rehabilitation Act. Because Tarr does not clearly challenge the judgment as to the ADA- or Rehabilitation Act-based affirmative defenses or counterclaims on appeal, we address only his FFHA- and TFHA-based issues. See Tex. R. App. P. 38.1.
Furthermore, we note that the definition of "disability" under the TFHA is nearly identical to that of "handicap" under the FFHA:
"Disability" means a mental or physical impairment that substantially limits at least one major life activity, a record of the impairment, or being regarded as having the impairment. The term does not include current illegal use or addiction to any drug or illegal or federally controlled substance and does not apply to an individual because of an individual's sexual orientation or because that individual is a transvestite.Tex. Prop. Code § 301.003(6). Because the TFHA "provide[s] rights and remedies substantially equivalent to those granted under federal law," id. § 301.002(3), Texas courts have construed TFHA consistently with FFHA. See, e.g., Chavez v. Aber, 122 F. Supp. 3d 581, 601 (W.D. Tex. 2015); Meadowbriar Home for Children, Inc. v. Gunn, 81 F.3d 521, 531 n.8 (5 th Cir. 1996); Richardson v. SV Almeda I Ltd., No. 01-11-01004-CV, 2013 WL 4680392, at *6 (Tex. App.—Houston [1st Dist.] Aug. 29, 2013, no pet.) (mem. op.). For simplicity, therefore, we limit our analysis to the definition of "handicap" under the FFHA and decide Tarr's TFHA-based issues accordingly.
II. Tarr failed to produce evidence sufficient to raise a fact issue as to his FFHA-and TFHA-based affirmative defenses
In his first issue, Tarr argues that the trial court erred in finding that he did not produce evidence sufficient to raise a fact issue as to whether his tenants, whom he states are recovering alcohol or drug addicts, are handicapped under the FFHA (and disabled under the TFHA). We conclude that it did not.
A. Definition of "handicap" under the FFHA
It is well established that, under the FFHA, single-family restrictive covenants cannot be used to exclude group homes for handicapped persons from single-family neighborhoods. See, e.g., United States v. Wagner, 940 F. Supp. 972, 979 (N.D. Tex. 1996); United States v. Forest Dale, Inc., 818 F. Supp. 954, 963 (N.D. Tex. 1993); Deep E. Tex. Reg'l Mental Health & Mental Retardation Servs. v. Kinnear, 877 S.W.2d 550, 556 (Tex. App.—Beaumont 1994, no writ); see also 24 C.F.R. § 100.80(b)(3) (federal regulations defining discriminatory conduct under the FFHA prohibit "[e]nforcing covenants . . . which preclude the sale or rental of a dwelling to any person because of handicap . . . ."). The FFHA describes three categories of "handicap," any one of which is sufficient to trigger the statute's protections:
(1) a physical or mental impairment which substantially limits one or more of such person's major life activities,42 U.S.C. § 3602(h). That term "does not include current, illegal use of or addiction to a controlled substance . . . ."Id.
(2) a record of having such an impairment, or
(3) being regarded as having such an impairment.
Courts have construed "disability" or "handicap" consistently in interpreting various federal disability-protection statutes, including the FFHA, ADA, and Rehabilitation Act, which all similarly define those terms. Compare 42 U.S.C. § 3602(h) (FFHA definition of "handicap") with 29 U.S.C. § 705 (Rehabilitation Act definition of "disability") and 42 U.S.C. § 12102 (ADA definition of "disability"); see Regional Econ. Cmty. Action Program, Inc. v. City of Middletown, 294 F.3d 35, 46 (2d Cir. 2002) (using all three definitions interchangeably); Burch v. Coca-Cola Co., 119 F.3d 305, 317 (5th Cir. 1997) (citing cases interpreting Rehabilitation Act in construing ADA); United States v. Southern Mgmt. Corp., 955 F.2d 914, 922 (4th Cir. 1992) (citing authority interpreting ADA and Rehabilitation Act in construing FFHA); Oxford House, Inc. v. City of Baton Rouge, La., 932 F. Supp. 2d 683, 688 (M.D. La. 2013) ("Under the ADA, a disability is defined in the same way that the FHA defines handicap."); Oxford House, Inc. v. Township of Cherry Hill, 799 F. Supp. 450, 459 (D.N.J. 1992) ("[T]he definition of handicap in the [FFHA] was taken directly from [the Rehabilitation Act]"); see also H.R. Rep. No. 711, 100th Cong., 2d Sess. 22 (1988), reprinted in 1988 U.S. Code Cong. & Admin. News 2173, 2183 (FFHA drafting-committee intended that "handicap" in the FFHA be construed consistently with regulations governing Rehabilitation Act (citing 45 C.F.R. § 84.3)); 49 Am. Jur. Proof of Facts 3d 1 ("[T]he ADA's definition is also comparable to the Fair Housing Act's definition of disability. This was apparently intentional on the part of Congress.").
Courts have uniformly observed that alcohol and drug addiction constitute an "impairment" under this definition, which is supported by interpreting federal regulations. See Regional Econ. Cmty. Action Program, Inc. v. City of Middletown, 294 F.3d 35, 46 (2d Cir. 2002) (collecting cases); 24 C.F.R. § 100.201(a)(2) (stating that "impairment" as used in FFHA includes "drug addiction (other than addiction caused by current, illegal use of a controlled substance) and alcoholism."). "Major life activities" include functions such as "caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." Regional Econ. Cmty. Action Program, 294 F.3d at 46 (citing 24 C.F.R. § 100.201(b)).
The issue in many cases, as in this case, is whether the impairment of addiction (or recovering addiction) rises to the level of a handicap under the statute. Tarr cites several cases that hold that recovering addicts are handicapped as defined in the federal disability statutes as a matter of law. See, e.g., Rodgers v. Lehman, 869 F.2d 253, 258 (4th Cir. 1989) (holding that "[a]lcoholism is a handicapping condition within the meaning of the [Rehabilitation] Act"); Sullivan v. City of Pittsburgh, Pa., 811 F.2d 171, 182 (3d Cir. 1987) ("Case law establishes that alcoholics are handicapped within the meaning of [the Rehabilitation Act]."); Crewe v. U.S. Office of Pers. Mgmt., 834 F.2d 140, 141 (8th Cir. 1987) ("At the outset there can be little doubt that alcoholism is a handicap for the purposes of the Act."); Simpson v. Reynolds Metals Co., 629 F.2d 1226, 1232, n.8 (7th Cir. 1980) ("Individuals with current problems or histories of alcoholism or drug abuse qualify as 'handicapped individuals' under this definition[.]").
Other courts, however, have required a showing that an impairment—including alcoholism or drug addiction—substantially limits a major life activity. See, e.g., Regional Econ. Cmty. Action Program, 294 F.3d at 47 ("[M]ere status as an alcoholic or substance abuser does not necessarily imply a 'limitation' under the second part of that definition."); Burch v. Coca-Cola Co., 119 F.3d 305, 316-17 (5th Cir.1997) (declining to classify alcoholism as per se disability; requiring evidence that addiction interferes with major life activity); MX Grp., Inc. v. City of Covington, 293 F.3d 326, 337 (6th Cir. 2002) (requiring evidence of substantial limitation in addition to evidence of alcoholism); Oxford House, Inc. v. City of Baton Rouge, La., 932 F. Supp. 2d 683, 688 (M.D. La. 2013) (explaining that although Congress had rejected a demanding standard for qualifying as disabled, determining whether an individual is handicapped still requires a case-by-case evaluation). We conclude that the plain language of the statute requires a showing that the impairment substantially limits a major life activity. See 42 U.S.C. § 3602(h)(1).
B. Tarr failed to produce evidence that his tenants suffer a substantial limitation
In response to Lantana's no-evidence motion for summary judgment asserting that no evidence showed that Tarr's tenants are handicapped, Tarr produced his own affidavit in which he briefly described his rehabilitation facility and admission criteria for prospective tenants. His affidavit stated, in relevant part, that
• he owns the house being used as a "men's group home";We conclude that Tarr's evidence was insufficient to raise a fact issue as to whether his tenants meet the first category of handicap under the FFHA. Although his evidence tends to show that his tenants are required to have a drug or alcohol addiction for which they are seeking treatment, it is insufficient to raise a fact issue as to whether their addiction substantially limits a major life activity as required under the statute. See id.
• his tenants "are required to submit to random and twice-a-week drug testing, participate in both in-house and outside recovery meetings, and follow all other rules of the house";
• his tenants are required to have a "disability" as defined under the state and federal Fair Housing Acts, namely, they are "required to have a drug or alcohol addiction for which they are seeking recovery"; and
• his tenants are provided with various recovery-related services, such as a live-in house manager, accountability partners, and transportation to recovery meetings.
Tarr cites cases in which courts held that evidence of a substantial limitation resulting from alcohol or drug addiction was sufficient to demonstrate a handicap. Specifically, he argues that admission to a live-in rehabilitation facility raises a fact issue as to whether residents' addiction substantially limit a major life activity. A review of those cases demonstrates that they are distinguishable because they involved evidence beyond mere participation in a rehabilitation program in support of a finding that a party had demonstrated a handicap. See, e.g., Regional Econ. Cmty. Action Program, 294 F.3d at 47-48 (evidence that rehabilitation-facility admission was limited to individuals who were unable to live independently); Jeffrey O. v. City of Boca Raton, 511 F. Supp. 2d 1328, 1334-35 (S.D. Fla. 2007) (resident testimony that addiction rendered them unable to live independently raised fact issue regarding whether residents were substantially limited in their ability to obtain housing); Oxford House, 932 F. Supp. 2d at 689 (resident testimony regarding inability to live independently without recovery home established disability); MX Grp., 293 F.3d at 337-38 (evidence of handicap included expert testimony regarding substantial limitations drug addicts face generally); United States v. Southern Mgmt. Corp., 955 F.2d 914, 921-23 (4th Cir. 1992) (holding that evidence that residents were participating in supervised rehabilitation program was sufficient to avoid the current-use exclusion under FFHA, not to establish handicap). Tarr failed to produce any evidence showing that his tenants' condition as recovering alcoholics renders them incapable of living independently or otherwise substantially limits a major life activity.
Tarr argues that he was not required to produce evidence that individual tenants were handicapped and that evidence that facility admission was restricted to handicapped persons is sufficient. Even assuming that a party may establish a handicap in that manner, Tarr's evidence failed to show that admission to his facility was limited to individuals who suffered a substantial limitation of a major life activity as a result of their impairment. Cf. Regional Econ. Cmty. Action Program, 294 F.3d at 47-48.
Tarr also cites Valley Housing LP v. City of Derby, 802 F. Supp. 2d 359, 385 (D. Conn. 2011), for the proposition that evidence of support services offered by a rehabilitation facility can demonstrate that residents are substantially limited in their ability to care for themselves. That case, however, did not detail the services provided by the facility. See id. We cannot conclude, based on the minimal evidence regarding the services provided at Tarr's group home, that that evidence would "enable reasonable and fair-minded people to differ in their conclusions" as to whether his tenants were limited in their ability to care for themselves. See King Ranch, 118 S.W.3d at 751.
Tarr's affidavit is thus insufficient to raise a fact issue as to whether his tenants suffered an impairment that substantially limited a major life activity as is necessary to demonstrate a handicap under the first category set forth in the FFHA. See 42 U.S.C. § 3602(h)(1).
C. Tarr failed to produce evidence that his tenants were regarded as impaired
Tarr alternatively argues that the record supports a finding that his evidence raised a fact issue as to whether his tenants met the third category of handicap, i.e., that they are regarded as having an impairment. See id. § 3602(h)(3); 24 C.F.R. § 100.201(d)(2); see also Southern Mgmt., 955 F.2d at 918-19 (holding that group-home residents met third definition because housing corporation had substantially limited their ability to obtain housing on sole basis of residents' impairment). Specifically, he argues that "the fact that the residents are recovering alcoholics and drug addicts is the impetus for Lantana's suit to enjoin [his] use of his property as a group home for such individuals."
In support, he cites documents attached to Lantana's original petition. However, he did not refer to or offer those documents as evidence supporting his summary-judgment response. Pleadings and their attachments do not constitute summary-judgment proof. Salas v. LNV Corp., 409 S.W.3d 209, 218 (Tex. App.—Houston [14th Dist.] 2013, no pet.). Tarr also cites documents that he produced in response to Lantana's second motion for summary judgment, but those documents were not before the trial court in the first summary-judgment proceeding. See Judwin Props., Inc. v. Griggs & Harrison, 911 S.W.2d 498, 503 (Tex. App.—Houston [1st Dist.] 1995, no writ) (explaining that proper scope for trial court's review of evidence for summary judgment encompasses all evidence on file at the time of hearing or filed after hearing and before judgment with permission of court) (citing Tex. R. Civ. P. 166a(c)).
Tarr argues that, because the first summary judgment was interlocutory, the trial court could have reconsidered it based on the later-offered evidence. See, e.g., Ohrt v. Union Gas Corp., 398 S.W.3d 315, 327-28 (Tex. App.—Corpus Christi 2012, pet. denied) ("A partial summary judgment is interlocutory and thus the trial court retains the right to reconsider it until it enters a final judgment."). However, he cites no authority that requires the trial court to reconsider previous orders when presented with new evidence in a separate proceeding. Further, Tarr never sought reconsideration of the first summary judgment based on the later-offered evidence.
By contrast, Lantana's petition contained no allegations regarding Tarr's use of the property as a group home for recovering addicts. Rather, it alleged only that Tarr was using his home as rental property in violation of a single-family restrictive covenant. Because the record from the first summary-judgment proceeding contains no evidence raising a fact issue as to whether Lantana sought to deny the tenants housing on the basis of their impairment, Tarr failed demonstrate a fact issue as to whether his tenants were regarded as impaired under the third definition of handicap provided in the FFHA. See 42 U.S.C. § 3602(h)(3).
Because Tarr failed to produce evidence raising a fact issue as to whether his tenants qualified for protection under the FFHA and TFHA, the trial court properly granted Lantana's no-evidence motion for summary judgment as to those affirmative defenses. We thus overrule Tarr's first issue with respect to that argument.
III. The trial court did not commit reversible error in relying on the first partial summary judgment disposing of Tarr's statutory affirmative defenses in rendering a second partial summary judgment disposing of Tarr's related counterclaims
In his second issue, Tarr argues that the trial court erred in relying on the no-evidence summary judgment rejecting Tarr's affirmative defenses in rendering the second summary judgment in favor of Lantana's cause of action and against Tarr's counterclaims. He contends that, because his counterclaims were not part of Lantana's no-evidence motion for summary judgment, the first partial summary judgment could not be used to preclude litigation of his counterclaims, which were at issue only in the second summary-judgment proceeding. In this context, we disagree.
The Texas Supreme Court has observed the general rule that granting summary judgment on a claim not addressed in the motion for summary judgment is reversible error. G & H Towing Co. v. Magee, 347 S.W.3d 293, 297 (Tex. 2011). The Court, however, recognizes an exception to that rule: "If a defendant has conclusively disproved an ultimate fact or element which is common to all causes of action alleged . . . the summary judgment may be affirmed." Id. (internal quotations omitted). In other words, a party is not entitled to litigate a claim or defense "when the movant has conclusively proved or disproved a matter (usually corresponding to a claim's element or to an affirmative defense) that would also preclude the unaddressed claim as a matter of law." Id. (internal quotations omitted); see also Lampasas v. Spring Ctr., Inc., 988 S.W.2d 428, 436-37 (Tex. App.—Houston [14th Dist.] 1999, no pet.) (holding that no-evidence summary judgment finding no evidence of certain elements precluded other, then-unchallenged causes of actions that also included those elements); Reule v. Colony Ins. Co., 407 S.W.3d 402, 415 (Tex. App.—Houston [14th Dist.] 2013, pet. denied) (holding that summary judgment rejecting TFHA claims precluded unchallenged FFHA claims as matter of law because elements of those claims were "intertwined" and involved "same alleged discriminatory acts").
Here, as previously discussed, in granting the first summary judgment in favor of Lantana, the trial court determined that Tarr had not produced evidence that his tenants were handicapped under the statute and thus determined that he was not entitled to claim statutory protections as a matter of law. And demonstrating a handicap under those statutes was a key element of his statute-based counterclaims. Because the trial court had already determined that there was no evidence of that element as a matter of law, the court did not commit reversible error by relying on the first summary judgment in disposing of those counterclaims in the second summary-judgment proceeding. See G & H Towing, 347 S.W.3d at 297; Lampasas, 988 S.W.2d at 436-37. We thus overrule Tarr's second issue.
IV. The trial court did not err in rendering summary judgment in favor of Lantana on its breach-of-contract claim
Tarr further argues in his first issue that the trial court erred in granting summary judgment in favor of Lantana on its breach-of-contract claim.
In its second motion for summary judgment, Lantana sought summary judgment on its claim that Tarr violated the single-family restrictive covenant. That covenant provided 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.Lantana alleged that Tarr violated the covenant by (1) using the property in a manner inconsistent with "single family residential use" and (2) generating income from the property by leasing portions of the property to various tenants.
A. Tarr's use and construction of his property violated the single-family restrictive covenant
As to Lantana's first allegation, Tarr does not dispute that he was operating a group home for unrelated adults, but again claims protections under state and federal disability statutes. As discussed, however, the trial court properly determined that record did not demonstrate that Tarr's home was entitled to statutory protections. Because those statutes did not bar enforcement of the single-family-use restrictive covenant against Tarr, the trial court did not err in determining that Tarr violated that covenant by using his home in manner inconsistent with single-family use.
Regarding Lantana's second allegation, Tarr argues that, because he did not profit from the property, he did not violate the covenant. He admits, however, that he generated approximately $6,000 to $8,000 in income from the property each month. His contention that his operating costs exceeded that income does not excuse noncompliance with the Declaration of Covenants, which prohibits use of property as income-producing property.
Tarr further argues that he did not build the home for use as a rental property, and that mere use of property as rental property does not violate the covenant. But Lantana produced summary-judgment evidence showing that Tarr's own rental advertisements for the home indicated that the home was physically structured to function as a "rental house" rather than a single-family home. One advertisement stated that the rental space was a "100% private duplex with separate private front door and private garage door entrances and is sealed off from the downstairs house." Another described the home as "divided between an upstairs and a downstairs with two complete houses inside" the home. That evidence was sufficient to demonstrate that Tarr built (or physically modified) his home for the purpose of renting portions of the home separately to tenants who would not occupy the entire lot in clear violation of the covenant.
B. Tarr waived his complaint regarding improper burden shifting
Finally, Tarr argues that, because the covenant expressly did not "exclude from a Lot any person who is authorized to so remain by any state or federal law," Lantana had the initial burden in its second motion for summary judgment to demonstrate that Tarr's use of the property was not protected by disability-protection statutes. Again, however, the applicability of those statues was litigated in the no-evidence summary-judgment proceeding, at which Tarr had the burden to produce some evidence to support his statute-based affirmative defenses. See Tex. R. Civ. P. 166a(i); Timpte, 286 S.W.3d at 310. Tarr did not argue in that proceeding that those statutory protections were not affirmative defenses and thus inappropriate for no-evidence summary judgment. See Home Loan Corp. v. JPMorgan Chase Bank, N.A., 312 S.W.3d 199, 205 (Tex. App.—Houston [14th Dist.] 2010, no pet.) ("The non-movant has the burden to expressly present to the trial court reasons it avoids summary judgment if the movant has proved it is entitled to summary judgment as a matter of law."); see also Spence & Green Chem. Co. v. Mouer, 510 S.W.2d 620, 620 (Tex. Civ. App.—Beaumont 1974, writ ref'd n.r.e.) (alleged error regarding allocation of burden of proof was waived by failure to object). As previously discussed, because the trial court resolved that issue against Tarr, he was not entitled to relitigate it in the second summary-judgment proceeding and thereby shift the burden back to Lantana to demonstrate that he was not entitled to statutory protections as part of Lantana's breach-of-contract claim. See G & H Towing, 347 S.W.3d at 297.
Because Lantana conclusively demonstrated that Tarr violated the single-family restrictive covenant, we overrule Tarr's first issue with respect to the above arguments.
V. Tarr waived his notice compliant
The final portion of Tarr's first issue argues that Lantana did not provide him ten days' notice of the alleged violation of a restrictive covenant before seeking to enforce the restriction as required under the Declarations of Covenants. However, lack of notice is an affirmative defense, which is waived if not pleaded. See Shoemake v. Fogel, Ltd., 826 S.W.2d 933, 937 (Tex. 1992) (citing Tex. R. Civ. P. 94); Cadillac Bar W. End Real Estate v. Landry's Rests., Inc., 399 S.W.3d 703, 707 (Tex. App.—Dallas 2013, pet. denied) (lack of compliance with notice provision in agreement is affirmative defense subject to waiver). Because Tarr failed to preserve any complaint based on lack of notice, he may not raise it on appeal. Accordingly, we overrule his first issue with respect to that argument.
VI. The trial court erred in awarding Lantana attorney's fees under Texas Property Code section 5.006 because the injunction is unenforceable
In his third issue, Tarr argues that the trial court erred in awarding Lantana attorney's fees under Texas Property Code section 5.006.
Although the judgment does not state a basis for the award of fees, the parties agree that section 5.006 governs. See Tex. Prop. Code § 5.006 ("In an action based on breach of a restrictive covenant pertaining to real property, the court shall allow to a prevailing party who asserted the action reasonable attorney's fees . . . .").
A. The final judgment does not indicate that Tarr agreed that Lantana was entitled to attorney's fees
Lantana first contends that the final summary judgment shows that Tarr agreed to an award of attorney's fees and thus may not challenge it on appeal. Tarr responds that the judgment shows only that Tarr agreed to the amount of fees, but not that Lantana was entitled to fees.
The final judgment states as follows:
The Court finds . . . that Lantana and Tarr have agreed that eighty eight thousand dollars ($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 agree that thirty five
thousand dollars ($35,000.00) are reasonable and necessary fees to be paid to Lantana should Tarr file an unsuccessful appeal of this cause to the Texas Court of Appeals. . . .
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 attorneys fees set forth above, and Tarr reserves his right to appeal from every other ruling in this Judgment and those prior orders.
The plain language of the judgment reveals that Tarr agreed only to the amount of fees and not that Lantana was entitled to an award of fees. See also Tex. Prop. Code § 5.006 (dividing issue of attorney's fees into two provisions: (a) when a party is entitled to fees and (b) determination of proper amount of fees); Jim Rutherford, 25 S.W.3d at 853 (explaining that whether attorney's fees are authorized is question of law while determination of amount of reasonable fees is question of fact). We thus conclude that Tarr may appeal the trial court's determination that Lantana is entitled to attorney's fees under the statute.
B. Definition of "prevailing party" under Texas Property Code section 5.006
Under Texas Property Code section 5.006(a), an award of reasonable attorney's fees to a "prevailing party" is mandatory in an action for enforcement of restrictive covenant. Tarr argues that, in order to be a prevailing party under the statute, a party must have obtained affirmative relief on the merits of its cause of action. He notes that the only affirmative relief that Lantana obtained was the injunction prohibiting him from breaching the Declaration of Covenants, and he contends that the injunction order is void for failure to comply with applicable requirements.
Lantana does not defend the injunction and instead argues that Lantana need not have obtained affirmative relief to be a prevailing party under the statute. It contends that a prevailing party includes a party that has successfully proven a breach of a restrictive covenant.
In support of his position, Tarr cites Intercontinental Group Partnership v. KB Home Lone Star L.P., 295 S.W.3d 650, 651 (Tex. 2009), in which the supreme court addressed the meaning of "prevailing party." The court adopted a "no harm, no fee" rule, in which "a stand-alone finding of breach unaccompanied by any tangible recovery (either monetary or equitable relief) cannot bestow 'prevailing party' status." Intercontinental, 295 S.W.3d at 662 (holding party that obtained only a jury finding that defendant violated contract but no affirmative relief was not a "prevailing party"). This Court has relied on Intercontinental in determining whether a party prevailed in an action based on a breach of a restrictive covenant pertaining to real property so as to be entitled to attorney's fees under section 5.006. See Norton v. Deer Creek Prop. Owners Ass'n, No. 03-09-00422-CV, 2010 WL 2867375, at *8 (Tex. App.—Austin July 22, 2010, no pet.) (mem. op.) (holding party prevailed because it obtained injunction prohibiting acts that were the focus of litigation).
By contrast, Lantana cites Nash v. Peters, 303 S.W.3d 359, 362 (Tex. App.—El Paso 2009, no pet.), in support of its position that a party prevails if it obtains stand-alone finding of breach without more. Lantana is correct that Nash held that a party seeking to enforce a deed restriction "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" to prevail and thus be entitled to attorney's fees under section 5.006. Nash, 303 S.W.3d at 362. However, because that holding conflicts with authority from the supreme court and this Court, we decline to follow it. See Intercontinental, 295 S.W.3d at 662; Norton, 2010 WL 2867375, at *8; see also Continental Healthcare, Inc. v. Remedy Therapy Staffing, PLLC, No. 03-14-00464-CV, 2016 WL 6068258, at *4-5 (Tex. App.—Austin Oct. 14, 2016, no pet. h.) (mem. op.) (reversing award of attorney's fees where party obtained no affirmative relief, rejecting authority to contrary).
We thus conclude that, in order to be entitled to attorney's fees as a prevailing party under section 5.006, Lantana must have received relief within the parameters described in Intercontinental. See Intercontinental, 295 S.W.3d at 662. Because the only affirmative relief Lantana obtained was the injunction, we must determine the validity of the injunction order.
C. The trial court's injunction order does not meet the requirements of Rule 683
Orders granting injunctions must be clear and complete. Webb v. Glenbrook Owners Ass'n, 298 S.W.3d 374, 384 (Tex. App.—Dallas 2009, no pet.) (citing Tex. R. Civ. P. 683). Rule 683 of the Texas Rules of Civil Procedure requires that every injunction order (1) set forth the reasons for its issuance; (2) be specific in terms; and (3) describe in reasonable detail—and not by reference to the complaint or other document—the acts to be restrained. Tex. R. Civ. P. 683. Those requirements are mandatory and must be strictly followed. InterFirst Bank San Felipe, N.A. v. Paz Constr. Co., 715 S.W.2d 640, 641 (Tex. 1986) (per curiam). An injunction order that does not adhere to those requirements is unenforceable. Id.
The purpose of Rule 683 is to adequately inform a party what he is enjoined from doing and why he is enjoined from doing it. El Tacaso, Inc. v. Jireh Star, Inc., 356 S.W.3d 740, 744 (Tex. App.—Dallas 2011, no pet.). Therefore, an injunction order should describe the enjoined acts without requiring "inferences or conclusions about which persons might well differ and without leaving anything for further hearing." Villalobos v. Holguin, 208 S.W.2d 871, 875 (Tex. 1948). In other words, the order "must spell out the details of compliance in clear, specific and unambiguous terms so that such person will readily know exactly what duties or obligations are imposed upon him." Drew v. Unauthorized Practice of Law Comm'n, 970 S.W.2d 152, 156 (Tex. App.—Austin 1998, pet. denied).
Tarr contends that the injunction order in this case does not satisfy those requirements. The order provides only, in relevant part:
IT IS, THEREFORE, ORDERED, ADJUDGED, AND DECREED that Kevin Tarr is hereby commanded to desist and refrain from breaching the Declaration of Covenants, Conditions, and Restrictions for Lantana Southwest Single Family Properties.We agree that the order does not comply with Rule 683: It (1) sets forth no reason for its issuance; (2) is not specific in its terms; and (3) describes the enjoined acts only by reference to an outside document, namely, the Declarations of Covenants. See Tex. R. Civ. P. 683. Indeed, it does not even cite the specific provision of the contract not to be violated, let alone specify the acts that would constitute a violation of that provision. Further, whether certain acts constitute a breach of the Declaration of Covenants would require inferences and conclusions about which persons might disagree and would require further hearing. See Villalobos, 208 S.W.2d at 875. Because the order provides nothing that would enable Tarr to know exactly what duties or obligations are imposed upon him, it is unenforceable. See id.; Drew, 970 S.W.2d at 156.
An injunction is also unenforceable if it purports to enjoin conduct in excess of the scope of litigation. Webb v. Glenbrook Owners Ass'n, 298 S.W.3d 374, 385 (Tex. App.—Dallas 2009, no pet.). Here, the only conduct at issue was conduct in violation of one restrictive covenant; thus, the trial court abused its discretion in attempting to restrain conduct beyond that which was the focus of litigation. See id. at 385-90 (reversing and remanding injunctions that exceeded the scope of the pleadings, requested relief, and evidence). --------
Because we must dissolve the injunction, which is the portion of the judgment upon which Lantana's right to attorney's fees is contingent, the record does not support the award of attorney's fees. We sustain Tarr's third issue.
CONCLUSION
We reverse the portions of the trial court's summary judgment granting injunctive relief and attorney's fees, dissolve the permanent injunction, and remand those issues for proceedings consistent with this opinion. In all other respects, we affirm the judgment.
/s/_________
Cindy Olson Bourland, Justice Before Justices Puryear, Pemberton, and Bourland Affirmed in Part; Reversed and Remanded in Part Filed: December 16, 2016