Steven L. Bahr and Cynthia L. Bahr v. Emerald Bay Property Owners Association, Inc.

In The

Court of Appeals

Ninth District of Texas at Beaumont

_________________

NO. 09-16-00325-CV
_________________

STEVEN L. BAHR and CYNTHIA L. BAHR, Appellants

V.

EMERALD BAY PROPERTY OWNERS ASSOCIATION, INC., Appellee
________________________________________________________________________

On Appeal from the 258th District Court
Polk County, Texas
Trial Cause No. CIV29248
________________________________________________________________________

MEMORANDUM OPINION

Emerald Bay Property Owners Association, Inc. (“the Association”) filed suit

against Steven L. Bahr and Cynthia L. Bahr for an alleged violation of a fence

provision contained in Emerald Bay Subdivision’s 1999 Amended Deed

Restrictions. The Bahrs responded by filing a counterclaim against the Association

and its directors individually. In response to a Rule 91a motion to dismiss, the trial

court dismissed the Bahrs’ counterclaim against all defendants. The original parties

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then filed competing motions for summary judgment. After a hearing, the trial court

denied the Bahrs’ motion for summary judgment and granted summary judgment in

favor of the Association. The Bahrs appeal the trial court’s judgment. We affirm the

trial court’s final judgment.

I. Background

The underlying lawsuit arises from dispute over a fence erected by the Bahrs.

In its original petition, the Association detailed the existence of deed restrictions

burdening the property, and asserted the most recent applicable restrictions were

contained in the 1999 Amended Restrictions, specifically paragraph 4(B). The

provision contained in 4(b) provides:

(B) No wall, fence, planter[,] or hedge shall be erected or constructed
on lots that do not meet the following conditions:

No wall, fence, planter[,] or hedge shall be erected or constructed
between the front property line and a point 8 feet in front of the dwelling
or associated garage or shed and within accordance with the front set
back line restrictions. No wall[,] fence, planter[,] or hedge will be
erected or constructed on any corner lot between the side property line
and the side set back line adjacent to the street. Walls, fences, plants, or
hedges may be erected, but may not extend more than 8 feet from a
dwelling or associated garage or shed. Decorative fences along the front
easement are permitted with approval of the Board. Fences for child
and pet containment and safety are permitted, but can not [sic] extend
more than 8 feet from the associated dwelling, garage, or shed and must
be approved by the Board of Directors. (Emphasis added).

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 The Association claimed that the Bahrs’ predecessors in title burdened the

property at issue with the 1999 Amended Deed Restrictions by executing the

“Acknowledgment by Property Owner(s) to Amended Restrictions for Emerald Bay

Subdivision, Polk County, Texas” on August 31, 1999. The record reflects that the

subsequent conveyances of the property at issue, including the conveyance to the

Bahrs, referenced the amended restrictions in the deeds.

The Association presented evidence that other property owners in the

neighborhood had previously sought approval from the Association’s board of

directors in conformance with the 1999 Amended Restrictions when seeking

permission to build various items covered by the Restrictions. The record also

reflects that the Bahrs themselves acknowledged the existence of the Association

and the restrictions when they sought permission to extend their garage the previous

year.

When the Bahrs constructed a fence on the property in April 2014, the

Association’s Secretary sent an email to Steven Bahr advising that the fence was in

violation of the 1999 Amended Restrictions and that the Bahrs would have to remove

the fence. The Association subsequently sent a certified letter regarding the deed

restriction violation notice to the Bahrs, advising them they needed to remove the

fence pursuant to chapter 209 of the Property Code. The Bahrs responded through

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their attorney stating that they denied any violation alleged in the Association’s letter

and that they would continue to defend and enjoy their property as they saw fit, along

with providing a trespass warning to the Association regarding their property.

In its original petition, the Association sought a temporary injunction, a

permanent injunction, statutory liquidated damages under section 202.004(c) of the

Property Code, and attorney’s fees pursuant to section 5.006 of the Property Code.

See Tex. Prop. Code Ann. §§ 5.006, 202.004(c) (West 2014). In response, the Bahrs

filed their original answer, special exceptions, affirmative defenses, and

counterclaim. In the counterclaim, they sued the Association and its board of

directors, individually. The counterclaim sought declaratory judgment pursuant to

chapter 37 of the Texas Civil Practices and Remedies Code. See Tex. Civ. Prac.

Rem. Code Ann. §§ 37.001–.011 (West 2015). The Association filed a Rule 91a

motion to dismiss asserting the Bahrs’ counterclaims had no basis in law or fact. See

Tex. R. Civ. P. 91a. In response, the Bahrs filed their first amended answer, special

exceptions, affirmative defenses, and counterclaim. The trial court granted the

Association’s Rule 91a motion to dismiss and dismissed the Bahrs’ counterclaim as

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to all defendants.1, 2 The original parties then filed competing motions for summary

judgment. After a hearing, the trial court denied the Bahrs’ motion for summary

judgment, but granted the Association’s motion for summary judgment.

The Bahrs present three issues on appeal. First, they assert the trial court erred

by granting the Association’s temporary injunction. Second, the Bahrs assert the trial

court’s Rule 91a dismissal was “manifest constitutional error and manifest error on

the entire case.” Finally, the Bahrs argue the trial court’s summary judgment in favor

of the Association was “manifest constitutional error and manifest error on the entire

case.”3

1
The Bahrs attempted to pursue an interlocutory appeal of the trial court’s
Rule 91a dismissal of their counterclaims by filing a “Motion for Order for
Interlocutory Appeal on Controlling Question of Law.” Despite the trial court’s
denial of the Bahrs’ request to file an interlocutory appeal, the Bahrs filed a notice
of interlocutory appeal. This court dismissed the interlocutory appeal for lack of
jurisdiction. See Bahr v. Emerald Bay Prop. Owners Ass’n, Inc., No. 09–15–00363–
CV, 2016 WL 1054506, at *1 (Tex. App.—Beaumont, Mar. 17, 2016, no pet.) (mem.
op.).
2
The trial court’s order dismissed the Bahrs’ counterclaims jointly against all
defendants to the counterclaim. The individual directors, namely Sharon Jeans, Ted
Ankney, and Martha Freeman, have not filed briefs in this appeal.
3
Despite the Bahrs’ complaints of “manifest constitutional error,” nowhere in
their brief is the constitution cited, and the excerpts from the reporter’s record cited
do not direct us in any way as to which argument they support. An appellant’s brief
must “contain a clear and concise argument for the contentions made, with
appropriate citations to authorities and to the record.” Tex. R. App. P. 38.1(i).
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 II. Issue One: Temporary Injunction

While the Bahrs complain in their brief about a temporary injunction entered

by the trial court, the trial court issued a permanent and mandatory injunction in its

final summary judgment order, making the issue of a temporary injunction moot.

Isuani v. Manske-Sheffield Radiology Group, P.A., 802 S.W.2d 235, 236–37 (Tex.

1991) (holding appeals court erred in reaching merits of interlocutory appeal of

temporary injunction after trial court entered permanent injunction rendering

temporary injunction moot). Therefore, we overrule the Bahrs’ first issue.

III. Issue Two: Rule 91a Motion to Dismiss

A. Standard of Review

In their second issue, the Bahrs argue the trial court erred in granting the

Association’s Rule 91a motion to dismiss their counterclaim against all defendants.

Rule 91a allows a party to move to dismiss a cause of action that has no basis in law

or fact. Tex. R. Civ. P. 91a.1. “We review the merits of a Rule 91a motion de novo

because the availability of a remedy under the facts alleged is a question of law and

the rule’s factual-plausibility standard is akin to a legal-sufficiency review.” City of

Dallas v. Sanchez, 494 S.W.3d 722, 724 (Tex. 2016) (citing Wooley v. Schaffer, 447

S.W.3d 71, 75–76 (Tex. App.—Houston [14th Dist.] 2014, pet. denied));

GoDaddy.com, LLC v. Toups, 429 S.W.3d 752, 754 (Tex. App.—Beaumont 2014,

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pet. denied). In likening a Rule 91a motion to dismiss to a federal Rule 12(b)(6)

motion, this court noted “dismissal is appropriate if the court determines beyond

doubt that the plaintiff can prove no set of facts to support a claim that would entitle

him to relief.” Toups, 429 S.W.3d at 754 (citing Scanlan v. Tex. A&M Univ., 343

F.3d 533, 536 (5th Cir. 2003)); see also Fed. R. Civ. P. 12(b)(6). Whether a cause of

action has any basis in law or fact is a legal question, based on allegations in the live

pleadings and any attachments. Weizhong Zheng v. Vacation Network, Inc., 468

S.W.3d 180, 183 (Tex. App.—Houston [14th Dist.] 2015, pet. denied) (citing

Wooley, 447 S.W.3d at 76).

B. Analysis

The Bahrs’ counterclaim sought a declaratory judgment pursuant to Chapter

37 of the Civil Practices and Remedies Code, seeking a declaration that the

Association and its officers “had no authority to enforce the deed restrictions and

have waived the right to enforce the building of a fence on the Bahr’s (sic) property,

in that the same kind of fences have been approved[.]” See Tex. Civ. Prac. & Rem.

Code Ann. §§ 37.001–.011. In support of their counterclaim, the Bahrs asserted that

the Association was involuntarily dissolved by the Secretary of State on March 8,

1995, for failure to pay franchise taxes and was not reinstated until July 28, 2014.

Thus, the Bahrs asserted the 1999 Amended Restrictions containing the fence

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provision were void as they were filed while the Association’s “right to conduct

business affairs was forfeited, involuntarily dissolved, and made null and void[.]”

The Bahrs essentially made three arguments in their counterclaim. Initially,

they assert the Association waived its right to enforce the Amended Restrictions. In

their amended answer and counterclaim, the Bahrs seemed to assert that waiver or

abandonment of the deed restrictions by the Association entitled them to affirmative

relief. “The Declaratory Judgments Act is ‘not available to settle disputes already

pending before a court.’” See BHP Petroleum Co., Inc. v. Millard, 800 S.W.2d 838,

841 (Tex. 1990) (quoting Heritage Life v. Heritage Group Holding, 751 S.W.2d 229,

235 (Tex. App.—Dallas 1988, writ denied)). A declaratory judgment counterclaim

that has greater ramifications than the original suit is allowed. Id. at 842. In order to

have “greater ramifications” the counterclaim must seek some sort of affirmative

relief rather than assert a mere denial of the plaintiff’s claim. Howell v. Mauzy, 899

S.W.2d 690, 706 (Tex. App.—Austin 1994, writ denied); HECI Expl. Co. v. Clajon

Gas Co., 843 S.W.2d 622, 638–39 (Tex. App.—Austin 1992, writ denied). A

defensive pleading must allege the defendant’s cause of action entitles him to the

recovery of benefits, compensation, or relief, independent of the plaintiff’s claim, in

order to qualify as a claim for affirmative relief. Gen. Land Office of Tex. V. OXY

U.S.A., Inc., 789 S.W.2d 569, 570 (Tex. 1990) (internal citations omitted).

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 Waiver and abandonment are affirmative defenses to the Association’s claims

against the Bahrs, not a claim that would entitle the Bahrs affirmative declaratory

relief by a counterclaim, as the issue of the enforceability of the deed restrictions

was already before the trial court. See BHP Petroleum, 800 S.W.2d at 841–42. There

are certain situations where a declaratory judgment counterclaim is appropriate for

conflicts surrounding deed restrictions, for example when parties seek a declaration

that the amendments are void in their entirety or seek to clarify and define the parties’

ongoing relationship in the future. See Owens v. Ousey, 241 S.W.3d 124, 132–33

(Tex. App.—Austin 2007, pet. denied). That is not the case here. The Bahrs sought

a declaration that the Association “had no authority to enforce the restrictions and

have waived the right to enforce the building of a fence on the Bahr’s (sic)

property[.]” The Bahrs’ counterclaim did not seek to clarify or define the

relationship for the future, but rather, sought to determine whether the Association

could enforce the fence provision against the Bahrs’ property in this particular

instance. Cf. id. at 133. Thus, the counterclaim sought nothing beyond that which

was already before the trial court.

The Bahrs’ emphasis on the Association’s forfeiture of its corporate status is

misplaced. Section 22.362 of the Nonprofit Corporations Act governs the effect of a

forfeiture. See Tex. Bus. Orgs. Code Ann. § 22.362 (West 2012). That section

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provides that “[t]he forfeiture of the right to conduct affairs in this state does not[]

impair the validity of a contract or act of the corporation[.]” Id. § 22.362(c)(1).

Despite the Bahrs’ assertion to the contrary, the validity of the 1999 Amended Deed

Restrictions was not impacted by the tax forfeiture. See id. The Association paid the

requisite penalties, filed the necessary report, and its corporate status was reinstated

on July 28, 2014, prior to the initiation of the underlying lawsuit. The reinstatement

letter is attached to the Bahrs’ amended answer and counterclaim. While under the

effect of a forfeiture, a corporation may not maintain an action, suit, or proceeding

in court; however, the Association was reinstated as a corporation prior to the

commencement of the underlying lawsuit in this case. See id. § 22.362(a)(1); id. §

22.365 (West 2012); Lyons v. Texorado Oil & Gas Co., 91 S.W.2d 375, 378 (Tex.

Civ. App.—Amarillo 1935, writ ref’d) (holding a contract was not void that was

made by a domestic corporation while its right to do business in Texas was forfeited

for failure to pay its franchise tax).

Finally, the Bahrs also assert that the Association did not have the authority

to amend the deed restrictions until June 1, 2000. However, the original restrictions

executed on March 25, 1983, and attached to the Bahrs’ live pleading, provided they

“shall be binding upon all parties and all persons claiming under them until June 1st,

2000 . . . unless an instrument signed by a majority of the then owners of the tract

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has been recorded, agreeing to change said covenants in whole or in part.” (Emphasis

added). The plain language of the restrictions allowed for a majority of the owners

to change the covenants. The original dedicatory instrument was attached to the

Bahrs’ live pleading, together with the executed acknowledgments of a majority of

the owners that showed the ratification of the 1999 Amended Restrictions.

Therefore, the Bahrs’ arguments lack merit.

Because the live pleadings establish the Bahrs’ counterclaim had no basis in

law or fact, the trial court did not err in granting the Association’s 91a motion to

dismiss as to the Bahrs’ counterclaim. See Tex. R. Civ. P. 91a.1. We overrule the

Bahrs’ second issue on appeal.

IV. Issue Three: Summary Judgment

A. Standard of Review

We review a summary judgment de novo. Provident Life & Accident Ins. Co.

v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). In doing so, “[w]e review the evidence

presented in the motion and the response in the light most favorable to the party

against whom summary judgment was rendered, crediting evidence favorable to that

party if reasonable jurors could, and disregarding contrary evidence unless

reasonable jurors could not.” Mann Frankfort Stein & Lipp Advisors, Inc. v.

Fielding, 289 S.W.3d 844, 848 (Tex. 2009) (citing City of Keller v. Wilson, 168

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S.W.3d 802, 807, 827 (Tex. 2005)). The moving party bears the burden of showing

no genuine issue of material fact exists, and it is entitled to judgment as a matter of

law. Tex. R. Civ. P. 166a(c); Mann Frankfort, 289 S.W.3d at 848; Knott, 128 S.W.3d

at 216. When both sides move for summary judgment, granting one and denying the

other, we review summary judgment evidence presented by both sides and determine

all questions presented. Mann Frankfort, 289 S.W.3d at 848 (citing Comm’rs Court

of Titus Cty. v. Agan, 940 S.W.2d 77, 81 (Tex. 1997)). We will render the judgment

that the trial court should have rendered. Myrad Props., Inc. v. LaSalle Bank Nat.

Ass’n, 300 S.W.3d 746, 753 (Tex. 2009); Agan, 940 S.W.2d at 81.

B. Analysis

The Association filed a motion for summary judgment on both traditional and

no-evidence grounds. See Tex. R. Civ. P. 166a; 166a(i). That motion challenged each

of the Bahrs’ affirmative defenses. Further, the Association timely objected to the

affidavits filed by the Bahrs as summary judgment evidence and requested the trial

court strike such evidence. The Association objected to the conclusory statements

contained in the affidavits and argued the affidavits contained statements that were

hearsay. The Association also objected to the purported business records affidavit of

Margaret Main. The Bahrs attempted to authenticate documents as business records

attached to their motion for summary judgment with the affidavit of Main. However,

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Main was not the records custodian at the time the affidavit was executed and had

not been the secretary of the Association since 2004. Additionally, the Association

objected to exhibits 11–39 attached to the Bahrs’ motion for summary judgment,

which included photographs, a string of emails, and a map allegedly revealing other

violations of deed restrictions in the subdivision. The Association objected to these

exhibits on the basis of improper predicate and hearsay. The trial court sustained the

objections, and the Bahrs failed to remedy or supplement their summary judgment

evidence.

“A conclusory statement is one that does not provide the underlying facts to

support the conclusion.” Dolcefino v. Randolph, 19 S.W.3d 906, 930 (Tex. App.—

Houston [14th Dist.] 2000, pet. denied) (internal quotes omitted). Affidavits

providing no basis for personal knowledge are legally insufficient. Kerlin v. Arias,

274 S.W.3d 666, 668 (Tex. 2008). Because affidavits containing conclusory

allegations are not proper summary judgment proof, the trial court properly struck

these affidavits upon objection by the Association. See Tex. R. Civ. P. 166a(f);

Dolcefino, 19 S.W.3d at 930. Affidavits in support of or in opposition to summary

judgment must present facts as would be admissible in evidence. See United Blood

Servs. v. Longoria, 938 S.W.2d 29, 30 (Tex. 1997) (discussing expert affidavits).

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 The only evidence remaining in support of the Bahrs’ motion for summary

judgment was the Association’s recorded dedicatory instruments, a letter from the

secretary of state indicating the corporation was dissolved, and the 1999 amended

deed restrictions. The dedicatory instruments, together with the 1999 amendments,

support the claims of the Association by establishing the existence of the amended

restrictions, and we have already explained why the forfeiture of the Association’s

corporate status would not support the Bahrs’ arguments.

The trial court sustained the Association’s objections to the Bahrs’ affidavits

and other summary judgment evidence. On appeal, the Bahrs complain the trial court

granting the Association’s motion for summary judgment was “manifest

constitutional error and manifest error on the entire case.” Specifically, the Bahrs

argue striking their affidavits and summary judgment evidence was error; however,

there are no arguments made by the Bahrs or any authorities cited to support their

assertion that their affidavits or other summary judgment evidence was proper, other

than to make the blanket assertion the affidavits were “based upon personal

knowledge.”

“In reviewing whether a summary judgment was properly granted, we may

not consider struck portions of the record because that evidence is not a part of the

summary judgment record.” McCollum v. Bank of N.Y. Mellon Trust Co., 481

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S.W.3d 352, 362 (Tex. App.—El Paso 2015, no pet.) (citing Trudy’s Tex. Star, Inc.

v. City of Austin, 307 S.W.3d 894, 898 n.2 (Tex. App.—Austin 2010, no. pet.)).

Because the Bahrs failed to show on appeal that the trial court erred in striking their

affidavits, we cannot consider that evidence in our review of the trial court’s

summary judgment. See id. (holding that the trial court was required to grant no-

evidence motion for summary judgment because nonmovant’s evidence had been

stricken). “When an appellee objects to evidence on several independent grounds

and, on appeal, the appellant complains of the exclusion of the evidence on only one

of those grounds, the appellant waives any error by failing to challenge all possible

grounds for the trial court's ruling that sustained the objection.” Gulley v. Davis, 321

S.W.3d 213, 218 (Tex. App.—Houston [1st Dist.] 2010, pet. denied) (citing Trahan

v. Lone Star Title Co. of El Paso, Inc., 247 S.W.3d 269, 284 (Tex. App.—El Paso

2007, pet. denied)); see also Katy Springs & Mfg., Inc. v. Favalora, 476 S.W.3d 579,

607 (Tex. App.—Houston [14th Dist.] 2015, pet. denied) (holding appellant waived

error with regard to trial court’s striking of affidavit because appellant failed to

challenge on appeal all possible grounds for the trial court’s ruling).

The Bahrs have failed on appeal to identify any statements in the affidavits

that were not stricken. Additionally, they have failed to show in their brief to this

Court how their summary judgment evidence and affidavits were improperly

15
stricken. Because they have failed to articulate how any statements not struck raise

a genuine issue of material fact as to their affirmative defenses or to raise any issue

that would negate the Association conclusively establishing the existence of the deed

restrictions and the Bahrs’ violation of those restrictions, we hold the trial court did

not err in ruling the Association was entitled to judgment as a matter of law. See

Tex. R. Civ. P. 166a; 166a(i). We overrule issue three.

V. Conclusion

We conclude the Bahrs’ complaints regarding the temporary injunction are

moot because the court subsequently issued a mandatory and permanent injunction

in the case. Additionally, we conclude the trial court did not err in granting the

Association’s Rule 91a motion to dismiss. On appeal, the Bahrs failed to show their

summary judgment evidence was improperly stricken or otherwise raise a genuine

issue of material fact either by their motion for summary judgment or in response to

the Association’s motion for summary judgment. The Association conclusively

established the enforceability of the 1999 Amended Deed Restrictions impressed

upon the property and that the Bahrs’ construction of a fence was in violation of

those restrictions. Therefore, the trial court did not err in granting summary judgment

for the Association and in denying the Bahrs’ motion for summary judgment. Having

overruled all issues on appeal, we affirm the trial court’s judgment.

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 AFFIRMED.

________________________________
CHARLES KREGER
Justice

Submitted on November 2, 2017
Opinion Delivered May 24, 2018

Before McKeithen, C.J., Kreger, and Johnson, JJ.

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