Scott R. Hoyt v. Harbor Lakes Homeowners Association

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-20-00061-CV
___________________________

SCOTT R. HOYT, Appellant

V.

HARBOR LAKES HOMEOWNERS ASSOCIATION, Appellee

On Appeal from the 355th District Court
Hood County, Texas
Trial Court No. C2019150

Before Bassel, Womack, and Wallach, JJ.
Memorandum Opinion by Justice Womack
 MEMORANDUM OPINION

I. INTRODUCTION

Appellant Scott R. Hoyt (Hoyt) appeals the trial court’s order granting Appellee

Harbor Lakes Homeowners Association’s (HOA) traditional motion for partial

summary judgment and denying his traditional motion for partial summary judgment.

In two issues, Hoyt argues that the trial court misconstrued both his and the HOA’s

obligations in accordance with the parties’ governing Bylaws and the Declaration of

Covenants, Conditions, and Restrictions (CC&Rs) concerning debris that gathers near

Hoyt’s boat dock. Because we conclude that there are ambiguities in the relevant

portions of the Bylaws and CC&Rs, summary judgment was improper as to Hoyt’s

declaratory-relief claim. Therefore, we affirm in part and reverse and remand in part.

II. BACKGROUND

This lawsuit arises from a dispute between homeowner Hoyt and the HOA

over who is obligated to clear debris from a body of water located next to Hoyt’s lot

and dock in a residential development. The HOA administers the residential

development and is governed, in part, by the Bylaws and CC&Rs. The HOA is

overseen by a board of directors who manages and administers the affairs of the

HOA. Under the CC&Rs, Hoyt is the owner of a “Waterway Lot,” which is defined

as a lot that is “immediately adjacent to and contiguous with a navigable waterway.”

According to Hoyt’s original petition, he has owned his property in the Harbor

Lakes subdivision located in Granbury, Texas, since 2008. Hoyt’s property is located

2
next to an adjacent body of water which is itself adjacent to and fed by Lake

Granbury. Hoyt’s property sits at the end of the adjacent body of water (which both

parties refer to as a “canal”), and his boat dock is located behind his home.1 On the

Lake Granbury side of Hoyt’s lot is a peninsula managed by the HOA, and on the

other side are other Waterway Lot owners.

Hoyt pleaded that “each spring, with heavy rains and releases from Possum

Kingdom Dam, upstream from Lake Granbury, heavy wood debris and trash has

floated down the lake, entered the canal,” and then “migrated with the generally

prevailing south easterly wind, along the inside shoreline of HOA’s peninsula, down

the canal and along the waterfront property lines of the upstream owners on the

eastside of the canal.” According to Hoyt, other neighbors literally push the debris

away from their own docks so that it will continue to float with the current into the

water surrounding his dock. To better understand the path the debris takes and how

it eventually settles around his dock, Hoyt attached the following picture to his

motion for partial summary judgment.

One of Hoyt’s exhibits indicates that the HOA has an easement on the land
1

between Hoyt’s residence and his boat dock.

3
 Because of the HOA’s refusal, Hoyt brought this suit claiming “breach of

contract/covenants” and also seeking declaratory relief. Regarding his declaratory-

relief claim, Hoyt pursued

[a] judicial declaration that HOA has a covenant/contractual duty to
clean the debris from the canal adjacent to its property, [Hoyt’s]
property, and the properties of other waterway homeowners, or
alternatively that HOA and upstream owners have the responsibility to
remove the debris when it is adjacent to their property before it reaches
[Hoyt’s] property.

The HOA answered with a general denial and asserted several affirmative defenses

and a “counterclaim” for attorney’s fees.

During discovery, and in response to an interrogatory asking who is responsible

for removing debris in the middle of the canal, the HOA answered in part that

[e]ither the HOA or particular owners could be responsible for
removing debris in the middle of the Canal from the water depending on
the exact location of the debris. Nonetheless, upon routine inspection
of the middle of the Canal, the HOA has not identified debris that
requires the HOA’s removal. The wind and water currents may naturally
move any alleged debris from remaining in the water in the middle of the
Canal for which the HOA may have an obligation to remove.

Similarly, in its response to a request for admission, the HOA replied in part that

“[e]ither the HOA or particular owners could be responsible for removing debris

from the middle of the Canal from the water depending on the exact location of the

debris.” In response to another request for admission asking the HOA to admit that

it “levies assessments on owners to ‘maintain the waterways,’” the HOA responded

that it objected to the request “as it is ambiguous, vague, and confusing because it is

5
unclear what the phrase ‘maintain the waterways’ refers to and who is obligated to

maintain the waterways.”

Later, the HOA filed its traditional motion for partial summary judgment (on

all but its attorney’s fees counterclaim) seeking a ruling that it was not obligated to

perform any maintenance in the canal “contiguous” to Hoyt’s property or to keep the

canal free from the debris. The HOA argued in the alternative that Hoyt was barred

from bringing his claims by release language in the CC&Rs. Hoyt also filed his

traditional motion for partial summary judgment. In his motion, Hoyt asserted that

he was entitled to a declaration that the HOA had the duty under the Bylaws and

CC&Rs to maintain common areas, including the duty to remove debris gathering in

the end of the canal and to remove debris from near the peninsula. Hoyt also argued

that the HOA had breached this duty.

Eventually, the trial court entered its “Supplemental Order Granting

Defendant’s Traditional Motion for Partial Summary Judgment and Declaration

Regarding the Rights & Duties of the Parties.”2 In addition to granting the HOA’s

summary judgment motion, the trial court denied Hoyt’s motion. The trial court also

made the following declarations:

2
The trial court initially entered an “Order Granting Defendant’s Traditional
Motion for Partial Summary Judgment” on February 3, 2020, but the order did not
contain any declarations of the parties’ rights. On April 27, 2020, the trial court
entered an order denying the HOA’s counterclaim for attorney’s fees. On
October 21, 2020, this court abated this case to the trial court in order for the trial
court to enter a judgment declaring the rights of the parties on all matters.

6
1. With respect to the [HOA], the restrictive covenants do not
obligate or place any legal duty on the [HOA] to remove debris,
trash, rubbish, or garbage from any portion of any of the canals
that are in anyway part of the homeowners association.

2. With respect to [Hoyt], the restrictive covenants expressly and
specifically place a mandatory responsibility and obligation on
[Hoyt] to remove debris, trash, rubbish, or garbage from the
portion of the canal contiguous to [Hoyt’s] lot.

3. With respect to the [HOA], the common area peninsula in
question is not a “lot” and the [HOA] is not an “owner” pursuant
to the definitions in the restrictive covenants, and accordingly, the
mandatory obligation for removal of debris along the water
adjacent to the peninsula does not apply to the [HOA] and
therefore does not create an obligation or legal duty imposed on
the [HOA] to remove debris along the water adjacent to the
peninsula.

4. With respect to the [HOA], it has the responsibility for
improvement, maintenance, and other care for the canals,
channels, sea walls and bulkheads; however no specific
responsibility or duty to remove debris from the channels and
canals is expressly imposed on the [HOA] by the restrictive
covenants.

5. With respect to the [HOA] and the declaration of its rights and
duties in Paragraph 4 above, in carrying out its responsibility to
maintain and care for the canals and waterways, the restrictive
covenants specifically provide that the Judgment of the [HOA’s]
Board of Directors in expenditures of the “General Assessment
Fund” and the “Waterway Assessment F[u]nd” [unintelligible3]
phrases are defined by the restrictive covenants, and its
determination of what continues [sic] normal, recurring
maintenance shall be final and conclusive so long as such
judgment is exercised in good faith. The Court declares that the
[HOA’s] determination that debris removal does not constitute
normal, recurring maintenance was made in good faith based on

The document appears to contain a scanning error.
3

7
 the findings of this Court that the [HOA] has no obligation or []
duty to remove debris from the channels or canals.

This appeal followed.

III. DISCUSSION

In two issues,4 Hoyt argues that the trial court erred by granting the HOA’s

motion for summary judgment and denying his motion for summary judgment.

Specifically, Hoyt argues that the trial court erred by “interpreting [his] duty under

Section 22[5] of the CC&Rs, to keep that portion of the canal ‘contiguous’ and

‘immediately adjacent’ to his lot ‘free of debris,’ to completely override and remove

HOA’s duty under the Bylaws and CC&Rs to maintain/clean the canal and ‘all other

care’ of it.” Hoyt further argues that this “interpretation also contravenes HOA’s

duty under the governing city ordinance. At best for HOA, the requirement by

owners to keep the area ‘immediately adjacent’ to their lots, is ambiguous in scope, as

demonstrated by HOA’s evasive discovery responses and should have been construed

against HOA.”

The HOA counters that the Bylaws and CC&Rs do not expressly obligate it to

remove debris from the canal; rather, a specific provision of the CC&Rs obligates

4
Even though Hoyt states that he has two issues in the “Issues Presented”
section of his brief, in the body of his brief he has blended the two issues. We will
address both issues together.
5
Article VIII, Section 22 of the CC&Rs states the duties of Waterway Lot
owners and of the HOA regarding maintenance of certain bodies of water and is
detailed below.

8
Hoyt, as a Waterway Owner, to remove debris from the canal contiguous to his

property. We conclude that relevant provisions of the Bylaws and CC&Rs contain

ambiguities and thus there are fact questions regarding the parties’ intent, and

summary judgment was improper.

A. Summary Judgment Standard of Review

We review a summary judgment de novo. Travelers Ins. Co. v. Joachim,

315 S.W.3d 860, 862 (Tex. 2010). We consider the evidence presented in the light

most favorable to the nonmovant, crediting evidence favorable to the nonmovant if

reasonable jurors could and disregarding evidence contrary to the nonmovant unless

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

289 S.W.3d 844, 848 (Tex. 2009). We indulge every reasonable inference and resolve

any doubts in the nonmovant’s favor. 20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex.

2008). When both parties move for summary judgment and the trial court grants one

motion and denies the other, the reviewing court should review both parties’

summary judgment evidence and determine all questions presented. Mann Frankfort,

289 S.W.3d at 848. We should then render the judgment that the trial court should

have rendered. See Myrad Props., Inc. v. LaSalle Bank Nat’l Ass’n, 300 S.W.3d 746, 753

(Tex. 2009); Mann Frankfort, 289 S.W.3d at 848.

9
B. The Release

Prior to addressing Hoyt’s issues, we first address the HOA’s contention that

Hoyt is “contractually barred” from bringing this suit.6 Pointing to Article VII,

Section 8 of the CC&Rs, the HOA argues that Hoyt contractually waived any claims

against the HOA. This section states,

Section 8. Adjacent Waterway, Waterway and Lake. Owners
acknowledge[] that neither Declarant nor the Association own or control
the waterway, or lake developed in close proximity to the Property. As a
material inducement to cause Declarant to enter into and execute this
Restated Declaration and to consummate the transactions contemplated
hereby, each Owner, on behalf of himself, herself and/or itself and all of
its successors and assigns (including, but not limited to, any future
purchasers of any houses constructed on any of the Lots), hereby
(a) waives, releases and relinquishes any and all claims it or they may now
or hereafter have against Declarant, the Association, the City of
Granbury, Texas, and their respective heirs, executors, personal
representatives, successors or assigns (the “Released Parties”) and
(b) indemnifies each and all of the Released Parties from and against any
and all losses, damages, costs, claims, liabilities, actions, causes of action,
or expenses of any kind or character, arising out of or resulting from any
activities related to the waterway or lake. Each Owner also covenants
and agrees that it will include in any contract for the sale of any Lot to
any third party that such contract shall expressly include the waiver,
release and indemnity provisions contained in this Section 8.

According to the HOA, regardless of the answers to the claims that Hoyt has

raised in this suit, the CC&Rs contain this waiver language and the HOA is released

6
Although the HOA argues that Hoyt is “contractually barred from recovering
damages,” the HOA also contends that Hoyt’s entire lawsuit is barred because “his
claims revolve[] around the maintenance and cleanup of the canal adjacent to” Hoyt’s
property. We interpret the HOA’s position to be that Hoyt cannot bring his
declaratory-relief claim as well as his breach of contract/covenants claim.

10
“from any and all liability with respect to the maintenance and cleanup of the

waterways and lakes.” We disagree that the release encompasses Hoyt’s declaratory-

relief claim.

A release is a writing which provides that a duty or obligation owed to one

party to the release is discharged immediately on the occurrence of a condition. Nat’l

Union Fire Ins. Co. of Pittsburgh, Pa. v. Ins. Co. of N. Am., 955 S.W.2d 120, 127 (Tex.

App.—Houston [14th Dist.] 1997), aff’d, 20 S.W.3d 692 (Tex. 2000). Like any other

agreement, a release is subject to the rules of construction governing contracts. Grimes

v. Andrews, 997 S.W.2d 877, 881 (Tex. App.—Waco 1999, no pet.). When construing

a contract, courts must give effect to the true intentions of the parties as expressed in

the written instrument. Lenape Res. Corp. v. Tenn. Gas Pipeline Co., 925 S.W.2d 565, 574

(Tex. 1996). The contract must be read as a whole, rather than by isolating a certain

phrase, sentence, or section of the agreement. State Farm Life Ins. Co. v. Beaston,

907 S.W.2d 430, 433 (Tex. 1995). The language in a contract is to be given its plain

grammatical meaning unless doing so would defeat the parties’ intent. DeWitt Cty.

Elec. Co-op., Inc. v. Parks, 1 S.W.3d 96, 101 (Tex. 1999). And to effectively release a

claim, the releasing instrument must “mention” the claim to be released. Victoria Bank

& Tr. Co. v. Brady, 811 S.W.2d 931, 938 (Tex. 1991). Any claims not “clearly within

the subject matter” of the release are not discharged. Id.; see also Baty v. ProTech Ins.

Agency, 63 S.W.3d 841, 848 (Tex. App.—Houston [14th Dist.] 2001, pet. denied) (op.

on reh’g).

11
 When a release contains broad-form language that evinces a specific intent to

cover multiple types of claims, courts will not hesitate to find the claims were released.

See, e.g., Schlumberger Tech. Corp. v. Swanson, 959 S.W.2d 171, 180–81 (Tex.1997) (holding

that a release, which released all “causes of action of whatsoever nature, or any other

legal theory arising out of the circumstances described above, from any and all liability

damages of any kind known or unknown, whether in contract or tort,” released

fraudulent inducement claims (emphasis added)). Likewise, courts will construe

broadly drafted releases to encompass a wide variety of claims. See, e.g., Anheuser–

Busch Co. v. Summit Coffee Co., 858 S.W.2d 928, 932 (Tex. App.—Dallas 1993, writ

denied) (holding that a release, which released “any and all causes of action of any

nature whatsoever, at common law, statutory or otherwise,” included fraud and securities law

claims because the release, by reference to the stock purchase agreement, mentioned

all claims involving undisclosed liabilities, a specific class of claims which included the

claims at issue (emphasis added)), judgment vacated and case remanded on other grounds,

514 U.S. 1001, 115 S. Ct. 1309 (1995).

However, the release at issue in this case is not a broad-form general release.

See Baty, 63 S.W.3d at 848. It does not purport to release claims of “any nature

whatsoever”; it does not even mention declaratory claims. Rather, it covers “losses,

damages,” and other compensation “arising out of or resulting from any activities

related to the waterway or lake.” It does not purport to cover actions such as the one

Hoyt filed seeking declaratory relief.

12
 A release containing similar language can be found in the case of Garza v.

Bunting. No. 05-06-01307-CV, 2007 WL 1545937 (Tex. App.—Dallas May 30, 2007,

no pet.) (mem. op.). In Garza, the mutual release contained language releasing either

party “from any and all claims or causes of action of any kind whatsoever, known or

unknown, now existing, which arise out of or relate in any way to the claims asserted,

or that could have been asserted in” prior litigation between the parties regarding the

sale of residential property. Id. at *2. The appellant in that case argued that the

appellees were barred from using a declaratory judgment action to determine liability.

Id. The Garza court reasoned that construction and validity of a contract is the most

obvious and common use of the declaratory-judgment action. Id. at *4. The court

held that appellees were not barred by the release from seeking declaratory relief

because the appellees “properly sought a declaratory judgment from the trial court to

adjudicate and declare the parties’ rights under a contract.” Id.

Here, despite the language found in the CC&Rs releasing the HOA from “any

and all claims [an “Owner”] may now or hereafter have against” the HOA and other

entities, Hoyt is seeking only a judicial determination of the parties’ respective duties

under the CC&Rs. The release is further limited to “activities related to the waterway

or lake.”7

See Victoria Bank, 811 S.W.2d at 938 (“[C]laims not clearly within the subject
7

matter of the release are not discharged.”).

13
 Furthermore, the HOA’s interpretation of the release in this case would lead to

an absurd result. We avoid constructions that would lead to absurd results. Kourosh

Hemyari v. Stephens, 355 S.W.3d 623, 626–27 (Tex. 2011) (per curiam); Henry v. Masson,

333 S.W.3d 825, 846 (Tex. App.—Houston [1st Dist.] 2010, pet. denied). Moreover,

we construe releases (as contracts) “from a utilitarian standpoint bearing in mind the

particular business activity sought to be served” and “will avoid when possible and

proper a construction which is unreasonable, inequitable, and oppressive.” Frost Nat’l

Bank v. L & F Distribs., Ltd., 165 S.W.3d 310, 312 (Tex. 2005) (per curiam) (quoting

Reilly v. Rangers Mgmt., Inc., 727 S.W.2d 527, 530 (Tex. 1987)).

If we were to agree with the HOA, it would lead to the absurd result that while

the HOA has general duties under other provisions of the CC&Rs, no “Owner” could

ever bring an action seeking a declaration of specific duties under the express terms of

the CC&Rs. Such an interpretation of the release would be unreasonable and result in

the inequitable situation that “Owners” could not seek clarification of either their or

the HOA’s duties pursuant to the CC&Rs. See id. We therefore hold that Hoyt is not

barred by the release from bringing his declaratory-relief claim.8

Hoyt does not argue that the trial court erred by granting summary judgment
8

in the HOA’s favor regarding his “breach of contract/covenants” cause of action.
Therefore, we need not and have not addressed whether the release applies to that
claim. See Jacobs v. Satterwhite, 65 S.W.3d 653, 655–56 (Tex. 2001) (per curiam)
(reasoning that an appellate court should affirm the trial court’s summary judgment
on unchallenged claims).

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C. The Granbury Ordinance

In part of both of his issues, Hoyt relies on a City of Granbury ordinance. City

of Granbury Subdivision Ordinance No. 09-360, Section 3.11, states that “[c]anal cut-

throughs must be maintained to be free of trash, debris, vegetation, and stagnant

water.” Granbury, Tex., Subdivision Ordinance No. 09-360, § 3.11 (July 9, 2020).9

Thus, Hoyt argues that under this ordinance it is the HOA’s responsibility to clear the

canal of the debris. Regarding this argument, Hoyt asks this court to take judicial

notice of the ordinance under Rule 204 of the Texas Rules of Evidence. Tex. R.

Evid. 204. But we agree with the HOA that Hoyt has waived the issue of the city

ordinance for our review because he did not timely raise the issue before the trial

court.

In the summary judgment context, “[i]ssues not expressly presented to the trial

court by written motion, answer or other response shall not be considered on appeal

as grounds for reversal.” Tex. R. Civ. P. 166a(c); see also ExxonMobil Corp. v. Lazy R

Ranch, LP, 511 S.W.3d 538, 545 (Tex. 2017). In this case, Hoyt never raised the issue

of the city ordinance in his motion for summary judgment or in his response to the

HOA’s motion. The first time Hoyt raised this issue was in his appellate brief to this

court. Thus, we cannot consider Hoyt’s city-ordinance argument as a ground for

reversal in this case. See Lazy R Ranch, 511 S.W.3d at 545. We therefore decline to

City of Granbury’s Subdivision Ordinances can be found
9
at
https://www.granbury.org/DocumentCenter/View/268/Subdivision-Ordinance.

15
take judicial notice of the ordinance, and we overrule this portion of Hoyt’s two

issues.

D. The Bylaws, CC&Rs, and the Parties’ Respective Duties

The trial court was asked to render a declaratory judgment regarding the duties

of the parties under the restrictive covenants. Restrictive covenants are subject to the

same rules of construction and interpretation as contracts. Pilarcik v. Emmons,

966 S.W.2d 474, 478 (Tex. 1998). For a court to be able to construe a contract as a

matter of law, the contract must be unambiguous. See Columbia Gas Transmission Corp.

v. New Ulm Gas, Ltd., 940 S.W.2d 587, 589 (Tex. 1996). As with releases, “the primary

concern of the court is to ascertain the true intentions of the parties as expressed in

the instrument[,]” and “courts should examine and consider the entire writing in an

effort to harmonize and give effect to all the provisions of the contract so that none

will be rendered meaningless.” Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983). If

the written instrument is so worded that it can be given a certain or definite legal

meaning or interpretation, then it is not ambiguous, and the court will construe the

contract as a matter of law. Id. “A contract is ambiguous when its meaning is

uncertain and doubtful or is reasonably susceptible to more than one interpretation.”

Heritage Res., Inc. v. NationsBank, 939 S.W.2d 118, 121 (Tex. 1996). And we may

conclude a contract is ambiguous even if the parties do not plead ambiguity or argue

the agreement contains an ambiguity. Naik v. Naik, 438 S.W.3d 166, 175–76 (Tex.

App.—Dallas 2014, no pet.). If a restrictive covenant contains an ambiguity, a trial

16
court errs by granting summary judgment because the interpretation of ambiguous

contracts is a question of fact for a factfinder. Coker, 650 S.W.2d at 394; Doe v. Tex.

Ass’n of Sch. Bds., Inc., 283 S.W.3d 451, 459 (Tex. App.—Fort Worth 2009, pet.

denied).

1. Article VIII, Section 22 of the CC&Rs

One of the arguments asserted by both parties is that Article VIII, Section 22

of the CC&Rs places the burden of clearing the complained-of debris on the other

party. Under Hoyt’s interpretation of this provision, the HOA has the primary duty

and responsibility to maintain the canal to keep it clean and free of debris to preserve

its navigability for owners’ safety, use, and enjoyment. The HOA, on the other hand,

argues that this provision imposes specific maintenance obligations with respect to

canals on owners of Waterway Lots, like Hoyt. Article VIII, Section 22 of the

CC&Rs states in part,

Section 22. Canals and Slips. The Owner of each Waterway Lot shall be
responsible for maintaining that portion of any canal contiguous to his
Waterway Lot and any boat slip, dock or pier permitted by rules and
regulations of the Association immediately adjacent to and contiguous
with the Waterway Lot shall be free of all debris, trash, rubbish, garbage,
or any other unsightly or unsanitary material and the boat slips, dock,
mooring or pier shall be in good repair at all times and shall not cause
any hazard to navigation, provided, however, that improvement,
maintenance, repair and other care for the canals, channels, sea walls and
bulkheads within the Subdivision shall be the responsibility of the
Association . . . .

The HOA focuses its argument on what it refers to as “clear and express

language” of Hoyt’s “maintenance obligation” to keep the canal continuous to his lot

17
free of debris. The HOA points out that its general maintenance duties under

Section 22 do not include debris removal, and yet Hoyt, as a Waterway Lot owner, is

instructed specifically to keep the area contiguous to his lot “free of all debris.” Thus,

the HOA argues that the CC&Rs unambiguously place the duty of cleaning the debris

squarely on Hoyt.

In contrast, Hoyt focuses on the language that as an owner of a Waterway Lot,

he is responsible only “for maintaining the portion of any canal contiguous” to his lot

and that he is responsible for maintaining certain structures “immediately adjacent to

and contiguous” with his lot. Hoyt further points out that “other care for the

canals . . . shall be the responsibility of the Association.” Hoyt asserts that the

CC&Rs unambiguously require the HOA to maintain the canal and remove the

debris. In the alternative, however, Hoyt argues that at best Section 22 is ambiguous

because it is not clear how far out into the canal is considered “contiguous to” or

“immediately adjacent” to his lot. Hoyt further asserts that any ambiguity must be

construed against the HOA because it is the author of the CC&Rs. We conclude that

what constitutes “contiguous to” or “immediately adjacent” to an owner’s lot is

ambiguous, but we disagree that the remedy is to construe the CC&Rs against the

HOA. See Tarr v. Timberwood Park Owners Ass’n, Inc., 556 S.W.3d 274, 282 (Tex. 2018)

(discussing how the strict-construction-against-the-declarant rule is unsettled in

Texas); see also Smith v. Davis, 453 S.W.2d 340, 344 (Tex. App.—Fort Worth 1970, writ

18
ref’d n.r.e.) (considering and rejecting application of rule after jury trial on ambiguous

contract).

Here, the words “contiguous” and “adjacent” are not defined anywhere in the

CC&Rs. Generally, words of common use are given their plain and ordinary

meanings unless it appears from the context they were used in a different sense.

Shriner’s Hosp. for Crippled Children of Tex. v. Stahl, 610 S.W.2d 147, 151 (Tex. 1980);

Vinson v. Brown, 80 S.W.3d 221, 231 (Tex. App.—Austin 2002, no pet.). We must,

therefore, determine whether the plain, ordinary meanings of “contiguous” and

“adjacent” show the parties’ intent. Harris v. Hines, 137 S.W.3d 898, 906 (Tex. App.—

Texarkana 2004, no pet.).

Merriam-Webster defines “contiguous” as “being in actual contact” or

“touching along a boundary or at a point.” Contiguous, Merriam-Webster,

https://www.merriam-webster.com/dictionary/contiguous (last visited July 9, 2021).

Merriam-Webster defines “adjacent” as “not distant” or “having a common endpoint

or border.” Adjacent, Merriam-Webster, https://www.merriam-

webster.com/dictionary/adjacent (last visited July 9, 2021). But these definitions are

not helpful in answering Hoyt’s question about how far out into the canal is

considered contiguous or adjacent to his property because they do not define the

boundary or point referenced, meaning that the terms are uncertain and doubtful.

Heritage Res., 939 S.W.2d at 121.

19
 The ambiguousness of these terms is supported by the HOA’s responses

during discovery. Indeed, the HOA admitted that either it or an owner could be

responsible for removing the debris “depending on the exact location of the debris.”

But the HOA did not explain what “exact” locations it was referring to, and it

summarily responded that it had inspected the “middle” of the canal and had not

identified debris that it was required to remove. It also responded that either it or a

particular owner could be responsible for removing debris from the “middle” of the

canal. But the HOA did not, nor does it on appeal, offer an explanation of where the

“middle” of the canal is or where the “contiguous” or “adjacent” portion of the canal

next to Hoyt’s property begins or ends. We conclude that these terms as they appear

in Section 22 are ambiguous, and the trial court erred by granting summary judgment

because the interpretation of an ambiguity in a restricted covenant is a question of fact

for a factfinder. Coker, 650 S.W.2d at 394. We sustain these parts of Hoyt’s two

issues where he argues that the CC&Rs are ambiguous as to what is meant by

“contiguous” or “immediately adjacent” to his lot.

2. The HOA’s Duties Under the Bylaws and CC&Rs

In another part of his two issues, Hoyt argues that the trial court erred by

finding that the HOA has no duty to “remove debris, trash, rubbish, or garbage from

any portion of any of the canals” under the Bylaws and CC&Rs and that

“maintenance” or “maintained” as those terms are used in reference to the canal must

inherently include a duty to keep the canal free of debris. We conclude that these

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terms are also ambiguous when determining the HOA’s duties to clean the canal;

thus, there is another fact issue concerning the parties’ intent in using the terms

“maintenance” or “maintained,” and summary judgment was improper.

In support of his argument, Hoyt points to specific language in the Bylaws and

CC&Rs. Under Bylaw Article VIII(m), the HOA has the duty “[t]o generally provide

for maintenance and preservation of the Properties and the Common Areas and

promote the health, safety and welfare of the Owners.” Bylaw Article VII,

Section 2(f) obligates the HOA “[t]o cause the Common Areas to be maintained.”

Article I, Section 8 of the CC&Rs defines “Common Areas” to include “waterways

and canals.” And Section 9 includes canals in defining “Common Maintenance

Areas.”

Merriam-Webster defines “maintain” as “to keep in an existing state (as of

repair, efficiency, or validity)” or to “preserve from failure or decline.” Maintain,

https://www.merriam-webster.com/dictionary/maintain (last visited July 9, 2021).

And Merriam-Webster defines “maintenance” as “the act of maintaining” or “the

upkeep of property or equipment.” Maintenance, https://www.merriam-

webster.com/dictionary/maintenance (last visited July 9, 2021). Like the definitions

of contiguous and adjacent, these definitions are not helpful in determining the

question of whether the HOA’s duties to keep common areas maintained or to

generally provide for the maintenance of the common areas includes removing debris

from the canal at issue in this case because they do not explain whether “keep[ing] in

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an existing state” includes cleaning debris from a canal. The ambiguity of these terms

is highlighted by the HOA’s response during discovery that it is “ambiguous, vague,

and confusing . . . what the phrase ‘maintain the waterways’ refers to and who is

obligated to maintain the waterways.” Thus, these terms as they appear in the Bylaws

and CC&Rs are ambiguous, and the trial court erred in granting summary judgment

because the interpretation of an ambiguity in a restricted covenant is a question of fact

for a factfinder. Coker, 650 S.W.2d at 394. We sustain these parts of Hoyt’s two

issues.

3. General Assessment Fund and Special Waterway Assessment Fund

In the remainder of his two issues, Hoyt argues that the trial court erred by

interpreting certain portions of the CC&Rs and the Bylaws as giving the HOA

discretion on whether to expend certain assessment funds on cleaning up the

complained-of debris. The HOA argues that its exercise of discretion in using these

funds is presumed reasonable.

Pertinent to this subissue are two assessment funds found in the CC&Rs: (1) a

General Assessment Fund defined by Article II, Section 3.A. and (2) a Waterway

Assessment Fund defined by Article II, Section 3.B. Under both sections, certain

owners, including Hoyt, are assessed fees that are to be placed in the respective funds.

Under Section 3.A., the General Assessment Fund is defined as being for the purpose

of the HOA to provide “for normal, recurring maintenance charges for the Common

Maintenance Areas for the use and benefit of all Members of the Association.”

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Section 3.A. further states that these funds are to be used at “the judgment of the

Board of Directors . . . so long as such judgment is exercised in good faith.”

Likewise, the Waterway Assessment Fund is defined as being for the purpose

of funding the “normal, recurring maintenance charges for the waterways, canals, sea

walls, bulkheads and dredging of the waterways for the use and benefit of all members

of the Association.” Similar to the General Assessment Fund, the Waterway

Assessment Funds are to be used at “the judgment of the Board of Directors . . . so

long as such judgment is exercised in good faith.”

Hoyt argues that the HOA has acted capriciously, unreasonably, arbitrarily, and

in bad faith by not removing the debris. The HOA argues that it is entitled to a

presumption of having acted reasonably in determining it did not have the duty to

expend funds to remove the debris. Both parties direct us to Section 202.004 of the

Texas Property Code in support of their respective arguments. Tex. Prop. Code Ann.

§ 202.004.

Section 202.004 of the Texas Property Code, entitled “Enforcement of

Restrictive Covenants,” provides as follows:

(a) An exercise of discretionary authority by a property owners’
association or other representative designated by an owner of real
property concerning a restrictive covenant is presumed reasonable unless
the court determines by a preponderance of the evidence that the
exercise of discretionary authority was arbitrary, capricious, or
discriminatory.

(b) A property owners’ association or other representative designated by
an owner of real property may initiate, defend, or intervene in litigation

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 or an administrative proceeding affecting the enforcement of a restrictive
covenant or the protection, preservation, or operation of the property
covered by the dedicatory instrument.

(c) A court may assess civil damages for the violation of a restrictive
covenant in an amount not to exceed $200 for each day of the violation.

Id. This statute 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.). Subsection (a) “creates a rebuttable presumption that a property

owners’ association or other representative acts reasonably in exercising its

discretionary authority.” La Ventana Ranch Owners’ Ass’n, Inc. v. Davis, 363 S.W.3d 632,

647 (Tex. App.—Austin 2011, pet. denied). A presumption is simply a rule of

procedure or an administrative assumption that may be overcome when positive

evidence to the contrary is introduced. Green v. Ransor, Inc., 175 S.W.3d 513, 516 (Tex.

App.—Fort Worth 2005, no pet.).

Here, Hoyt argues that the “HOA has unreasonably and arbitrarily saddled one

owner—[Hoyt], with sole responsibility to clean the canal of debris adjoining other

owners’ lots and HOA’s peninsula for which HOA is responsible and for which it

assesses maintenance funds against all waterfront owners.” Hoyt does not point to

any authority to demonstrate how the HOA’s actions were arbitrary, capricious, or

discriminatory, nor has he pointed this court to any specific evidence demonstrating

the same. The HOA counters that because it enjoys the presumption of

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reasonableness in its discretionary acts, the burden was on Hoyt to bring forward

admissible, summary judgment evidence to the trial court to “prove by a

preponderance of the evidence that the Board’s exercising of its discretionary

authority was arbitrary, capricious, or discriminatory” and that he did not. We agree

with the HOA that because Hoyt did not provide evidence that the HOA exercised its

discretionary authority in an arbitrary, capricious, or discriminatory way, Hoyt has

failed to overcome the presumption that the HOA acted reasonably in exercising its

discretion to not expend funds from either the General Assessment Fund or the

Waterway Assessment Funds to remove debris from the canal.10 See Tex. Prop. Code

Ann. § 202.004(a). We overrule the remainder of Hoyt’s two issues.

IV. CONCLUSION

Having concluded that the relevant provisions of the Bylaws and CC&Rs

regarding whose duty it is to remove the debris from the canal contain ambiguities, we

reverse the trial court’s grant of summary judgment regarding the declarations that the

HOA has no duty to clear the debris and that the responsibility falls entirely on Hoyt,

and we remand this case to the trial court for further proceedings. We affirm the trial

court’s judgment in all other aspects.

10
The HOA’s decision as to whether to expend funds from either the General
Assessment Fund or the Waterway Assessment Fund is not dispositive of the issue of
duty to clean debris from the canal.

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 /s/ Dana Womack

Dana Womack
Justice

Delivered: July 15, 2021

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