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

• Court: Court of Appeals of Texas
• Decided: March 17, 2022
• Docket: 01-20-00493-CV
• Status: Published

Opinion

Opinion issued March 17, 2022

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-20-00493-CV ——————————— CAROLYN FROST KEENAN, Appellant V.

RIVER OAKS PROPERTY OWNERS, INC., Appellee

On Appeal from the 133rd District Court Harris County, Texas Trial Court Case No. 2014-03190

MEMORANDUM OPINION Appellant, Carolyn Frost Keenan (“Keenan”), challenges the trial court’s

summary judgments in favor of appellee, River Oaks Property Owners, Inc.

(“ROPO”), in ROPO’s suit against Keenan for a violation of a restrictive covenant

and for declaratory judgment, and on Keenan’s counterclaims to quiet title and for violations of the Fair Housing Amendments Act of 1988 (“FHAA”), the Texas Fair

Housing Act (“TFHA”), and the City of Houston Fair Housing Ordinance

(“HFHO”).1 In two issues, Keenan contends that the trial court erred in granting

summary judgment and in striking portions of her summary-judgment evidence.

We affirm.

Background

River Oaks is a residential subdivision located near downtown Houston that

was developed in the 1920’s. According to the record, in 1926, the developer, “River

Oaks Corporation” (“ROC”), adopted the “Section One (1) Reservations,

Restrictions and Covenants in the River Oaks Addition” (the “Original

Restrictions”). They were made part of “each and every contract, deed or

conveyance” and made “binding upon the successors, heirs, assigns and legal

representatives of [ROC] and of the grantee in every such contract or deed.”

Thereafter, as the River Oaks area grew, supplemental sets of restrictions were

adopted for each section. In 1929, as pertinent here, ROC adopted the “Section Five

(5) Additional Reservations, Restrictions and Covenants in River Oaks Addition

Supplementing Resolutions of [various dates]” (the “Supplemental Restrictions”).

The Original and Supplemental Restrictions (collectively, the “Restrictions”) set out

1 See 42 U.S.C. § 3604 (FHAA); TEX. PROP. CODE § 301.025 (TFHA); HOUSTON, TEX., CODE OF ORDINANCES, ch. 17, art. III, § 17-12(f) (2021) (HFHO).

2 a series of General Restrictions on the use of property in River Oaks and authorized

ROC to enter property and to “summarily abate or remove” any violation. The

Restrictions provided that their term expired on January 1, 1955, but that they could

be extended for successive additional ten-year periods, as follows:

These restrictions shall be effective until January 1, 1955, but at any time within five years before January 1, 1955, the then owners of a majority of the square foot area of the lots in this Addition may, by written declaration, signed and acknowledged by them, and recorded in the deed records of Harris County, Texas, extend these restrictions, conditions and covenants, (or any others hereafter adopted with reference to this property in accordance herewith) for a period of ten years additional, and then similarly, for successive additional periods of ten years as often and as long as the owners of the majority of the square feet of the property may desire.

In 1954, ROPO was formed. Its corporate charter states that its purpose

included “the protection of properties and rights.” In 1963, ROC assigned to ROPO

“all of the rights relative to the restrictions.”

The record shows that the River Oaks property owners extended and re-

adopted the Restrictions in 1955, 1965, 1975, 1985, and 1995. At each renewal, the

property owners expressly authorized ROPO, as successor to ROC, to act in their

names and on their behalf.

In 2004, ROPO’s Board of Directors (the “Board”) formed a Restrictions

Restatement Committee (the “Committee”) to modernize and consolidate the 23 sets

of restrictions governing the different sections of River Oaks into one set of

restrictions and to provide for their automatic renewal. The Committee held various 3 town hall meetings. In October 2004, ROPO sent a letter to all of the River Oaks

property owners, presenting a list of proposed amendments and inviting them to a

meeting. In March 2005, ROPO mailed letters to the property owners, along with

the final version of the proposed amended restrictions, a summary of the

amendments, and a ballot seeking affirmative votes.

It is undisputed that, in August 2005, a River Oaks resident, Bert Langdon,

formed a group to protest the proposed amended restrictions. Langdon created and

circulated to each property owner a false ballot and letter asking them to vote against

the proposed amendments and to return their vote to him. He also circulated a false

rescission form, purporting to allow any property owner who had previously

submitted an affirmative vote to ROPO to rescind their vote.

In January 2006, ROPO determined that the official ballots that it had

circulated to property owners did not include a date by which the property owner

had to return the ballot for it to be counted, as required under the Texas Property

Code. In February 2006, ROPO returned each of the ballots that had been submitted,

with a stamp asking for a re-affirmation of the vote and directing that it be returned

to ROPO by December 1, 2006. ROPO also sent a corrected ballot to each of the

property owners who had not previously voted.

On June 2, 2006, ROPO, having determined that it had a sufficient number of

votes to approve the amendments, filed in the real property records a “Certification

4 of Receiving and Counting Ballots on Amendments to Reservations, Restrictions,

and Covenants Applicable to All Properties Located Within River Oaks Additions.”

ROPO’s Certification stated that it had circulated to each of the property owners in

River Oaks a copy of the proposed “Amendments to Reservations, Restrictions and

Covenant Applicable to All Properties Located within River Oaks Additions,

Including Tall Timbers Section and Country Club Estates Addition” (the “Amended

Restrictions”), a summary of the amendments, and a ballot, containing the date by

which it had to be returned to be counted. And, as required by Property Code section

204.005, the owners of at least 75 percent of the real properties in River Oaks had

voted in favor of and to approve the Amended Restrictions. ROPO certified that:

According to the ownership records maintained by the Association, the total square footage within all properties in the Subdivision [all sections of River Oaks] is 32,602,253, and the owners of the properties in the Subdivision containing a total square footage of 24,735,885 voted in favor of and to approve the Amended Restrictions (75.87%). The Ballots are and will be kept in the files of the Association.[2]

Thereafter, the Amended Restrictions became effective unless terminated by a vote.

On November 11, 2011, ROPO recorded its updated “Policies and Procedures

with Architectural Review and Approval Process” (the “Policies and Procedures”),

2 See In re Keenan, 501 S.W.3d 74, 78 (Tex. 2016) (granting “mandamus relief directing the trial court to permit Keenan to copy the ballots and disclose them for purposes of discovery, expert analysis, trial preparation, and trial”). 5 which governed the procedures for obtaining the required approval from the Board

for proposed designs and the construction of improvements on an owner’s lot.

At some point in or prior to 2011, Keenan, who lived in River Oaks and had

voted in favor of the Amended Restrictions, inherited another River Oaks property.

She became the sole owner of a lot with an existing house in the River Oaks

Addition, Section 5, at 2940 Chevy Chase, Houston, Texas (the “Property”). Keenan

had plans drawn up for the construction of a new house on the Property.

In its petition, ROPO alleged that, on November 15, 2011, Keenan submitted

a proposed plan (“Proposal 1”) to the Board for the construction of a new house and

landscaping on the Property. Keenan’s Proposal 1 included: (1) a parking area

adjacent to the front door and off of the main driveway that was approximately 22

feet long and 17 feet wide; (2) a concrete wheelchair ramp, sloping up to a landing

outside the front door of the residence; and (3) a concrete walkway from the city

sidewalk to the front-door landing.

As pertinent here, paragraph 14 of the Amended Restrictions limited the

impermeable area of a lot to a specific percentage of the total building area:

After the effective date of this instrument, the total area of the footprints of a residential dwelling, garage, outbuilding and other improvement on a lot which has a foundation, and any impermeable hardscape on the lot, including by way of example and not in limitation, synthetic grass, driveways, walkways, swimming pools and tennis courts, shall not exceed one hundred percent (100%) of the total building area of the lot within the front, side and rear setbacks applicable to the lot, or, in the case of a lot with a total area less than 15,000 square feet, one hundred 6 ten percent (110%) of the total building area of the lot within the front, side and rear setbacks applicable to the lot, in addition to any other limitations on size, dimension or area. . . .

The stated purpose of this provision is to “preserve permeable areas for surface

water, minimize the diversion of surface water to streets and adjacent lots, and

preserve the historical character of River Oaks as a subdivision with substantial

vegetation and open spaces.” The Restrictions provide that plans for all walkways

and driveways must be submitted to the Board “prior to installation or construction.”

In Proposal 1, Keenan represented that the area of her lot was 12,472 square

feet, that the allowable impermeable cover under the terms of the Amended

Restrictions totaled 6,618 square feet, and that her proposed impermeable cover

totaled 6,615 square feet.

On December 15, 2011, the Board granted Keenan preliminary approval of

Proposal 1. Keenan then submitted a slightly revised version of Proposal 1 to the

City of Houston (the “City”), who approved it and issued a building permit. On July

23, 2012, the Board, having determined that Keenan’s changes were not material

and that she was still within limitations, authorized her to commence construction.

On February 20, 2013, however, Keenan submitted a revised plan (“Proposal

2”) to ROPO that differed significantly from Proposal 1 and from the City-permitted

plan. In Proposal 2, Keenan sought to (1) increase the parking area adjacent to the

front porch to approximately 33 feet long by 18 feet wide; (2) replace the sloping

7 concrete wheelchair ramp with a larger porch to be accessed by multiple steps on

two sides of the porch; (3) replace the straight and non-continuous walkway with a

curved and continuous walkway from the city sidewalk to the front landing; (4) add

two side-yard brick-and-paver patios; and (5) add a concrete walkway and pad at the

door to the garage apartment, as a back entrance. Proposal 2 increased the

impermeable surface area of the Property from 6,615 square feet to 7,845 square

feet, which was 1,230 square feet over Proposal 1.

On March 19, 2013, ROPO notified Keenan that it would not approve

Proposal 2 because it exceeded the impermeable surface-area limitation in the

Amended Restrictions. ROPO noted that Keenan could proceed with construction

as previously approved in Proposal 1.

ROPO alleged that, in November 2013, it discovered that Keenan had in fact

commenced construction of improvements in accordance with Proposal 2. On

December 2, 2013, ROPO directed Keenan to stop the work, but she refused. By

January 2014, Keenan had completed the work pursuant to Proposal 2. In 2014,

Keenan and her husband moved into the new house on the Property.

ROPO sued Keenan for violating the Amended Restrictions, alleging that

Keenan was bound by the Amended Restrictions governing the Property; that ROPO

was entitled to enforce the Amended Restrictions; that Keenan had breached the

terms of the Amended Restrictions by constructing improvements in violation of the

8 impermeable surface-area limitation; and that Keenan had refused to reduce any

portion of the area installed. It also sought a permanent injunction requiring her to

remove 1,260 square feet of impermeable cover, or the amount exceeding 110

percent of the total building area of her lot, within thirty days of judgment. ROPO

also sought a declaration that the Amended Restrictions were valid and enforceable,

that they constituted a valid contract between ROPO and Keenan, and that Keenan

was required to remove 1,260 square feet of impermeable cover from the Property.

Keenan answered, generally denying the allegations and asserting various

affirmative defenses. Keenan asserted that ROPO was not entitled to enforce the

Amended Restrictions “as they are so vague and indefinite as to be unenforceable or

impossible to perform,” that they were “not properly executed,” and that the “deed

restrictions” governing River Oaks were “invalid and/or void under the Texas

Property Code” and had “expired.” She asserted that ROPO lacked standing to

“enforce the restrictions at issue in this case, as its membership is limited to only

those persons that have entered contracts with it.” And, “[b]ecause its membership

does not consist of owners of property within the subdivision [it] is not the

designated representative of the owners in the subdivision.” Keenan also asserted

that the Restrictions “violate[d] the Fair Housing Act prohibition on discrimination

against disabled individuals.”

9 Keenan brought a counterclaim against ROPO to quiet her title, in which she

asserted that the Amended Restrictions were “not properly approved by the requisite

number of properties in River Oaks” and thus are unenforceable.3 She asserted that

the Amended Restrictions, if enforced, would interfere with her use and enjoyment

of the Property, and she sought to remove “this cloud on her title to the Property.”

Keenan also brought a counterclaim against ROPO for fair-housing

violations, under the FHAA, TFHA, the HFHO. She asserted that she had requested

an accommodation of the limitation on impermeable surfaces in the Amended

Restrictions to allow for the installation of a van-accessible driveway and parking

area for her disabled mother-in-law. She asserted that ROPO had refused to make a

reasonable accommodation, in accordance with these provisions, which prohibit

discrimination against a disabled person by refusing to make a reasonable

accommodation in rules, policies, or practices if such is necessary to afford the

person equal opportunity to use and enjoy a dwelling. Keenan sought a judgment

declaring that allowing an increase in the amount of hardscape on the Property was

3 In July 2015, the trial court abated the case and ordered that Keenan “join each and every owner of real property in River Oaks, who is subject to the original and amended deed restrictions at issue in this case as proper parties to the counterclaims [she] asserted seeking to invalidate those restrictions.” The trial court ordered that, if she failed or refused to do so, her counterclaims seeking to invalidate the restrictions governing River Oaks would be deemed dismissed, with prejudice. Thereafter, however, Keenan did not join the other property owners in River Oaks. ROPO notes in its brief: “At the end of the abatement period, Keenan was forced to amend her claims rather than proceed with joinder of all ROPO members.

10 a reasonable accommodation and that ROPO’s enforcement of the Amended

Restrictions relating to hardscape was arbitrary and capricious. Keenan also sought

injunctive relief and actual and punitive damages, attorney’s fees, and costs.

On May 20, 2015, ROPO moved to compel Keenan to identify her mother-in-

law and her handicap in order to evaluate Keenan’s fair-housing claims. At a June

1, 2015 hearing on the motion to compel, ROPO complained that Keenan was

required to identify a disabled person needing the asserted accommodation and that

Keenan had refused. Keenan’s counsel responded that because Keenan’s mother-

in-law would not be called to testify at trial, Keenan was not required to identify her.

Subsequently, during her June 17, 2015 deposition, Keenan identified her mother-

in-law as Lavera Gaines and testified that she had arthritis.

In September 2018, ROPO filed three motions for partial summary judgment,

encompassing all of its claims and Keenan’s counterclaims and affirmative defenses.

ROPO argued that the summary-judgment evidence conclusively established that it

was entitled to judgment on its claims against Keenan for violation of a restrictive

covenant and for declaratory relief, and against Keenan on her affirmative defenses

and counterclaims to quiet title and for fair-housing violations. ROPO attached

approximately 52 pieces of summary-judgment evidence, discussed as applicable

below. ROPO asserted that Keenan did not present evidence raising any genuine

issues of material fact.

11 With respect to its claim for violation of a restrictive covenant, ROPO argued

that it was entitled to judgment as a matter of law because Keenan had judicially

admitted, through assertions of fact in her pleadings, that she had violated the

Amended Restrictions by constructing improvements and installing impermeable

surfaces on more than 110% of the allowable building area of the Property. ROPO

asserted it was entitled to a permanent injunction requiring Keenan to remove 1,260

square feet of impermeable surface, or that exceeding 110 percent of the total

building area of her lot, within thirty days of judgment. ROPO further asserted that

it was entitled to a declaration that the Amended Restrictions were validly enacted

and enforceable by ROPO against Keenan’s Property; that the Amended Restrictions

constituted a valid contract between ROPO and Keenan; and that Keenan must

remove 1,260 square feet of impermeable surface area from her Property to comply

with the Amended Restrictions.

ROPO argued that it was entitled to judgment as a matter of law on Keenan’s

counterclaim against ROPO to quiet title because the evidence conclusively

established that it amended the Original and Supplemental Restrictions in

accordance with Property Code section 204.005, by obtaining approval of the

owners of at least 75% of the real property in River Oaks and by filing its petition as

a dedicatory instrument in the Harris County real property records. Thus, the

Amended Restrictions did not constitute a cloud on Keenan’s title.

12 ROPO argued that it was entitled to judgment as a matter of law on Keenan’s

counterclaim for violations of the FHAA, TFHA, and HFHO because the evidence

conclusively disproved the elements of her claims. ROPO argued that the evidence

established that Keenan did not, at the time she requested an accommodation from

ROPO, identify any person for whom she sought an accommodation or establish that

the person met the FHAA’s definition of “handicapped.” Rather, it was not until

two years after ROPO had rejected Proposal 2, eighteen months after litigation had

commenced, and only in response to a motion to compel, that she first revealed the

identity of her mother-in-law to ROPO. ROPO also asserted that Keenan’s request

for an accommodation exceeding the maximum allowable impermeable cover of the

Property was neither necessary nor reasonable and, if granted, would undermine the

legitimate purposes of ROPO’s land-use regulation designed to prevent flooding in

River Oaks. ROPO asserted that Keenan’s TFHA and HFHO claims similarly failed

and were time-barred.

ROPO also argued it was entitled to judgment as a matter of law on Keenan’s

asserted affirmative defenses, i.e., of lack of notice, waiver, laches, estoppel,

ratification, and waiver, because they failed as a matter of law.

In October 2018, Keenan filed a response to each of ROPO’s motions for

partial summary judgment, discussed in detail below, to which she attached various

pieces of evidence. She argued that ROPO was not entitled to summary judgment

13 on her counterclaim to quiet title because the Amended Restrictions were not valid.

She asserted that ROPO was not a “property owners association,” and thus was

without authority to amend the restrictions, and that it had failed to obtain approval

of the requisite number of property owners to enact the Amended Restrictions. In

support of her claim, Keenan presented the affidavit of Charles J. Jacobus, an

attorney who examined the ballots and opined regarding the percentage of property

owners who had approved the Amended Restrictions.

With respect to ROPO’s claim against her for violating a restrictive covenant,

Keenan presented the affidavit of Paul M. Valentine, a registered professional

surveyor, who testified regarding the impermeable surface area of the Property. She

also argued that ROPO was not entitled to attorney’s fees because it had failed to

give certain statutorily required notice.

Keenan argued that ROPO was not entitled to summary judgment on her

counterclaim for fair-housing violations because she identified her mother-in-law as

a disabled individual, and her request for an accommodation was reasonable. She

asserted that her claims were not time-barred. In support, Keenan cited portions of

her deposition testimony and certain December 2013 correspondence between her

counsel and ROPO. She also presented a letter and affidavit from Jeromy Murphy,

an accessibility expert, who opined that the driveway Keenan had requested was

reasonable and necessary.

14 ROPO moved to strike certain portions of Keenan’s evidence, namely,

portions of the affidavits of Jacobus and Murphy, and the affidavit of Valentine.

On January 2, 2019, Keenan’s mother-in-law, Gaines, died. In May 2019,

ROPO filed a supplement to its motion for summary judgment on Keenan’s

counterclaims, arguing that her claims for violations of the FHAA, TFHA, and

HFHO, and for declaratory relief, were moot because they were “completely

dependent upon proof that [Keenan’s] Property require[d] modification to

accommodate a disabled person.” As Keenan had ultimately identified Gaines,

ROPO requested that the trial court take judicial notice of her death.

Subsequently, the trial court took the requested judicial notice and rendered a

summary judgment in favor of ROPO on its claims for affirmative relief. The trial

court found that Keenan was the owner of the Property; that she was bound by the

Restrictions and Policies and Procedures; that she substantially breached the terms

of the Restrictions and Policies and Procedures by constructing improvements in

violation of the impermeable surface area limitation; and that ROPO was entitled to

enforce the Restrictions and Policies and Procedures. It found that the Amended

Restrictions were validly enacted and enforceable by ROPO against Keenan and her

Property and that the Amended Restrictions constituted a valid contract between

ROPO and Keenan. After finding that the River Oaks property owners would suffer

irreparable injury for which any remedy at law would be inadequate if the violation

15 were not corrected, the trial court entered a mandatory injunction against Keenan,

requiring her to remove 1,260 square feet of impermeable surface from her Property.

The trial court also rendered a summary judgment in favor of ROPO on

Keenan’s counterclaims and affirmative defenses. It ordered that Keenan take

nothing on her counterclaims and held that she did not establish her affirmative

defenses of failure of proper notice, waiver, abandonment, laches, estoppel,

ratification, and excuse, all of which it dismissed with prejudice. The trial court also

signed an order striking certain portions of Keenan’s summary-judgment evidence,

discussed below.

After a jury trial on attorney’s fees, the trial court signed a final judgment with

the following “declaratory findings”:

1. [Keenan] is and was at all relevant times the owner of the [Property]; 2. [Keenan] and the Property are bound by the Restrictions and Policies and Procedures that burden the Property; 3. [Keenan] distinctly and substantially breached the terms of the Restrictions and Policies and Procedures by constructing improvements in violation of the impermeable surface area limitation; [4.] [ROPO] is entitled to enforce the Restrictions and Policies and Procedures.

The trial court “provide[d] [ROPO] with the following declaratory relief”:

1. The Amended Restrictions, Policies and Procedures were validly enacted and are enforceable by [ROPO] against [Keenan] and her Property;

16 2. The Amended Restrictions constitute a valid contract between [ROPO] and [Keenan]; and 3. [Keenan] must remove at least 1,260 square feet of impermeable surface area from the Property to come into compliance with the Amended Restrictions within thirty (30) days of the date of entry of this Final Judgment.

The trial court found that ROPO established that Keenan violated the

Amended Restrictions and Policies and Procedures that burden the Property by

constructing improvements that exceeded the impermeable surface-area limitation

imposed by the Amended Restrictions. The trial court entered an injunction

requiring Keenan to remove 1,260 square feet of impermeable surface area from her

Property in accordance with the Amended Restrictions. Further, the trial court

ordered that Keenan take nothing on her counterclaims and ordered that she pay

ROPO attorney’s fees.

Summary Judgment

In her first issue, Keenan argues that the trial court erred in granting summary

judgment in favor of ROPO on its claims and on her counterclaims because ROPO

failed to conclusively establish its right to judgment. In her second issue, Keenan

argues that the trial court erred in striking portions of her summary-judgment

evidence.

17 Standard of Review and Overarching Legal Principles

We review a trial court’s summary judgment de novo. Valence Operating Co.

v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). In conducting our review, we take as

true all evidence favorable to the non-movant, and we indulge every reasonable

inference and resolve any doubts in the non-movant's favor. Id. If a trial court grants

summary judgment without specifying the grounds, we will uphold its judgment if

any of the theories advanced in the motion is meritorious. Beverick v. Koch Power,

Inc., 186 S.W.3d 145, 148 (Tex. App.—Houston [1st Dist.] 2005, pet. denied).

In a traditional motion for summary judgment, the movant has the burden to

establish that no genuine issue of material fact exists and that it is entitled to

judgment as a matter of law. See TEX. R. CIV. P. 166a(c); KPMG Peat Marwick v.

Harrison Cty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). A plaintiff

moving for summary judgment on its own claim must conclusively prove all

essential elements of its cause of action. Rhône–Poulenc, Inc. v. Steel, 997 S.W.2d

217, 223 (Tex. 1999). A defendant moving for summary judgment must

conclusively negate at least one essential element of the plaintiff’s cause of action

or conclusively establish each element of an affirmative defense. Sci. Spectrum, Inc.

v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997). A matter is conclusively established

if reasonable people could not differ as to the conclusion to be drawn from the

evidence. See City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005).

18 Only after the movant meets its burden does the burden shift to the

non-movant to present evidence raising a genuine issue of material fact precluding

summary judgment. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex.

1995); see also McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 342 (Tex.

1993) (“[S]ummary judgments must stand or fall on their own merits, and the

non-movant’s failure to except or respond cannot supply by default the . . . summary

judgment proof necessary to establish the movant’s right. . . .”). Evidence raises a

genuine issue if reasonable jurors could differ in their conclusions in light of all of

the summary-judgment evidence. Goodyear Tire & Rubber Co. v. Mayes, 236

S.W.3d 754, 755 (Tex. 2007).

A. ROPO’s Claim for Violation of a Restrictive Covenant

ROPO moved for a summary judgment on its claim against Keenan for

violation of a restrictive covenant, pursuant to Property Code sections 202.004 and

204.010, for which it sought injunctive relief. See TEX. PROP. CODE §§ 202.004,

204.010.

Property Code section 202.004(b) provides that a “property owners’

association or other representative designated by an owner of real property may

initiate, defend, or intervene in litigation . . . affecting the enforcement of a

restrictive covenant or the protection, preservation, or operation of the property

covered by the dedicatory instrument.” Id. § 202.004(b); see § 204.010 (authorizing

19 property owners’ association to exercise powers conferred by restrictions and to

“institute, defend, intervene in, settle, or compromise litigation . . . on matters

affecting the subdivision”). Section 202.004 establishes a cause of action and

authorizes a trial court to assess civil damages for each day of the violation of a

restrictive covenant. KBG Invs., LLC v. Greenspoint Prop. Owners’ Ass’n, Inc., 478

S.W.3d 111, 119 (Tex. App.—Houston [14th Dist.] 2015, no pet.). “A court may

assess civil damages for the violation of a restrictive covenant” of up to $200 for

each day of the violation. TEX. PROP. CODE § 202.004(c). Section 202.004 creates

a presumption that a property owners’ association or other representative exercises

its discretionary authority concerning a restrictive covenant reasonably “unless the

court determines by a preponderance of the evidence that the exercise of

discretionary authority was arbitrary, capricious, or discriminatory.” Id.

§ 202.004(a).

Ordinarily, injunctive relief may be granted only when the applicant proves

the occurrence of a wrongful act giving rise to imminent and irreparable harm for

which there is no adequate remedy at law. Tanglewood Homes Ass’n, Inc. v.

Feldman, 436 S.W.3d 48, 76 (Tex. App.—Houston [14th Dist.] 2014, pet. denied).

However, in the context of the enforcement of restrictive covenants, the applicant is

required to prove only that the defendant intends to do an act that would breach the

restrictive covenant. Id. at 76–77.

20 In support of its motion for summary judgment, ROPO presented a copy of

the Amended Restrictions. Paragraph 14 of the Amended Restrictions limits the

impermeable surface of a lot to a specific percentage of the total building area, as

follows:

[T]he total area of the footprints of a residential dwelling, garage, outbuilding and other improvement on a lot which has a foundation, and any impermeable hardscape on the lot, including by way of example and not in limitation, synthetic grass, driveways, walkways, swimming pools and tennis courts, shall not exceed one hundred percent (100%) of the total building area of the lot within the front, side and rear setbacks applicable to the lot, or, in the case of a lot with a total area less than 15,000 square feet, one hundred ten percent (110%) of the total building area of the lot within the front, side and rear setbacks applicable to the lot, in addition to any other limitations on size, dimension or area. . . .

We review a trial court’s interpretation of a restrictive covenant de novo. Tarr

v. Timberwood Park Owners Ass’n, 556 S.W.3d 274, 279 (Tex. 2018). Restrictive

covenants are subject to the general rules of contract construction. Id. at 280. In

construing a covenant, we give effect to the objective intent of the drafters of the

covenant as it is reflected in the language chosen. Id. When a restrictive covenant

is unambiguous, as here, we construe it according to the plain meaning of its express

wording and enforce it as written. Vance v. Popkowski, 534 S.W.3d 474, 478 (Tex.

App.—Houston [1st Dist.] 2017, pet. denied). The language in paragraph 14 of the

Amended Restrictions prohibits, in the case of a lot with a total area of less than

15,000 square feet, as here, the construction of improvements (with foundations) and

21 “impermeable hardscape” on more than 110% of the total building area of the lot,

within the setbacks.

ROPO presented the affidavit of Mathew J. Probstfeld, a registered

professional land surveyor, who testified that he conducted a survey of the Property

on October 8, 2014 (post-construction). He testified regarding the method he

employed in surveying the property, and he attached the survey to his affidavit. He

opined that, based on the survey and his inspection of the property, the allowable

building area of the Property was 5,982 square feet, that the amount of allowable

impermeable surface on the Property was 6,580 square feet, and that the combined

area of improvements and impermeable surfaces totaled 7,840 square feet.

In its motion, ROPO asserted that Keenan “admits in her live pleading that

she violated [paragraph 14] because the improvements on her property exceed the

impermeable surface covenant,” citing Keenan’s First Supplemental Answer and

Fourth Amended Counterclaim. The record shows that, in her First Supplemental

Answer and Fourth Amended Counterclaim, Keenan stated: “Under the formula

provided in the Restrictions, the allowable hardscape area for the Property is at least

6,788.4 square feet. The existing hardscape on the Property is 7,331 square feet.

Therefore, Keenan is only requesting an additional 542.6 square feet of hardscape

on the Property.” Thus, Keenan admitted, in her live pleading, that she constructed

impermeable surfaces in excess of that allowed under the Amended Restrictions.

22 Assertions of fact in a party’s live pleadings are regarded as formal judicial

admissions. Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 905 (Tex.

2000). A judicial admission “not only relieves [an] adversary from making proof of

the fact admitted but also bars the party himself from disputing it.” Id. (internal

quotations omitted).

ROPO also presented excerpts of Keenan’s deposition, in which she testified

as follows:

Q. You admit in your pleadings that you willfully violated the restrictions, correct? .... A. Correct. Because of my family situation, I felt I needed to accommodate, and I could never get a final answer out of the board.

Thus, ROPO presented summary-judgment evidence establishing that Keenan

intentionally violated the Amended Restrictions. Further, because ROPO

established that Keenan intentionally committed an act breaching a restrictive

covenant, ROPO was entitled to injunctive relief. See Feldman, 436 S.W.3d at 77.

Because ROPO’s summary judgment evidence establishes its right to

judgment against Keenan on its claim for violation of a restrictive covenant, the

burden shifted to Keenan to present evidence raising a genuine issue of material fact

precluding summary judgment. See Siegler, 899 S.W.2d at 197.

In her summary-judgment response, Keenan argued that ROPO’s exercise of

authority in enforcing the Amended Restrictions was arbitrary and capricious 23 because ROPO “is not a ‘property owners association,’” and therefore it was without

authority to act, and because the Amended Restrictions are not valid. See TEX. PROP.

CODE § 202.004(a) (creating statutory presumption that property owners’

association exercises its discretionary authority concerning a restrictive covenant

reasonably “unless the court determines by a preponderance of the evidence that the

exercise of discretionary authority was arbitrary, capricious, or discriminatory”);

Anderson v. New Prop. Owners’ Ass’n of Newport, Inc., 122 S.W.3d 378, 390 (Tex.

App.—Texarkana 2003, pet. denied) (holding that rejecting driveway plans without

establishing authority to do so represented arbitrary and capricious exercise of

discretionary authority).

1. Authority to Act

Keenan argued that ROPO was without authority to act as a property owners’

association in amending the restrictions because ROPO was neither created by the

deed restrictions nor formed pursuant to Property Code section 204.006. See TEX.

PROP. CODE § 204.006 (governing “Creation of Property Owners’ Association”

when “existing restrictions applicable to a subdivision do not provide for a property

owners’ association”).

As pertinent here, Property Code Chapter 204 defines a “property owners’

association” as follows:

(a) A property owner’s association is a designated representative of the owners of property in a subdivision and may be referred to as 24 a “homeowners association,” community association,” “civic association,” “civic club,” “association,” “committee,” or similar term contained in the restrictions. The membership of the association consists of the owners of property within the subdivision. (b) The association must be nonprofit and may be incorporated as a Texas nonprofit corporation. An unincorporated association may incorporate under the Texas Non-Profit Corporation Act []. (c) The association’s board of directors or trustees must be elected or appointed in accordance with the applicable provisions of the restrictions and the association’s articles of incorporation or bylaws.

Id. § 204.004.

ROPO presented evidence, as discussed above, that it has been the expressly

designated representative of the owners of property in River Oaks since at least 1963.

ROPO’s evidence includes a 1963 Assignment from ROC to ROPO of “all of the

rights relative to the restrictions.” The Assignment notes that ROPO “was created,

among other things, to assist in the enforcement of the[] restrictions.” ROPO’s

evidence further shows that, in each renewal of the Restrictions since 1965, the

property owners expressly designated ROPO to act in their names and on their

behalf. See id. § 204.004(a). (“A property owners’ association is a designated

representative of the owners of property in a subdivision. . . .”). ROPO’s evidence

also reflects that the members of the association are property owners in River Oaks.

See id.

25 In addition, ROPO presented its charter and articles of incorporation, which

reflect that ROPO was chartered and incorporated as a Texas nonprofit corporation

in 1954. Id. § 204.004(b) (“The association must be nonprofit and may be

incorporated as a Texas nonprofit corporation.”). Its corporate charter states that its

purpose includes “the protection of properties and rights.”

Keenan argued in her response that ROPO is not a property owners’

association under section 204.004 because its directors are not elected in compliance

with subsection (c). She complained that the restrictions make no mention of how

ROPO’s board is elected.

Section 204.004(c) provides: “The association’s board of directors or trustees

must be elected or appointed in accordance with the applicable provisions of the

restrictions and the association’s articles of incorporation or bylaws.” Id.

§ 204.004(c) (emphasis added). As ROPO argues, when there are no applicable

provisions in the restrictions, as here, the association’s articles of incorporation or

bylaws supplement the restrictions. Here, ROPO presented its articles of

incorporation, which state that the board is to be elected as “provided in the bylaws.”

And, its bylaws contain a section setting forth how its board is to be elected.

Thus, the requisites of section 204.004 are met and there are no genuine issues

of fact presented regarding ROPO’s authority to act as a property owners’

association.

26 2. Validity of the Amended Restrictions

In her summary-judgment response, Keenan argued that, even if ROPO had

the authority to act, it failed to obtain the proper approval from the property owners

to enact the Amended Restrictions.

ROPO asserted that it amended the restrictions pursuant to Property Code

section 204.005. See TEX. PROP. CODE § 204.005. Under section 204.005, a

property owners’ association has authority to approve and circulate a petition

relating to the extension of, addition to, or modification of existing restrictions. Id.

Such petition to extend, add to, or modify existing restrictions is effective if:

(1) the petition is approved by the owners, excluding lienholders, contract purchasers, and the owners of mineral interests, of at least 75 percent of the real property in the subdivision or a smaller percentage required by the original dedicatory instrument; and (2) the petition is filed as a dedicatory instrument with the county clerk of the county in which the subdivision is located.

Id. § 204.005(b). A property owners’ association must notify all record owners of

property in the subdivision in writing of the proposed extension, addition to, or

modification of the existing restrictions. Id. § 204.005(e).

Keenan argued that there is “no dispute that the [Amended Restrictions] are

not valid under section 204.005(b)” because ROPO “admits that it did not obtain

approval of the owners of 75% of the real property in the subdivision.” Her

argument is not supported by the evidence.

27 ROPO’s evidence shows that it, on June 2, 2006, ROPO, having determined

that it had a sufficient number of votes to approve the amendments, filed in the real

property records a “Certification of Receiving and Counting Ballots on Amendments

to Reservations, Restrictions, and Covenants Applicable to All Properties Located

Within River Oaks Additions.” The Certification stated that it had circulated to each

of the property owners in River Oaks a copy of the proposed Amended Restrictions,

a summary of the amendments, and a ballot, containing a date by which it had to be

returned to be counted. And, as required by section 204.005, the owners of at least

75 percent of the real property in River Oaks had voted in favor of and to approve

the Amended Restrictions. ROPO certified that:

According to the ownership records maintained by the Association, the total square footage within all properties in the Subdivision [all sections of River Oaks] is 32,602,253, and the owners of the properties in the Subdivision containing a total square footage of 24,735,885 voted in favor of and to approve the Amended Restrictions (75.87%). The Ballots are and will be kept in the files of the Association.

Thus, even though the return date for the ballots was not until December 1, 2006,

ROPO, as early as June 2, 2006, already had the approval from the owners of “at

least 75 percent of the real property in the subdivision.” See id. § 204.005(b).

Keenan argues that ROPO failed to obtain the requisite vote on a section-by-

section basis in River Oaks. However, section 204.005(c) provides that

If a subdivision consisting of multiple sections, each with its own restrictions, is represented by a single property owners’ association, the approval requirement may be satisfied by obtaining approval of at least 28 75 percent of the owners on a section-by-section basis or of the total number of properties in the property owners’ association’s jurisdiction.

Id. § 204.005(c) (emphasis added). Thus, subsection (c) provides an alternative that

ROPO was not required to utilize.

Keenan argues that ROPO improperly counted ballots circulated in 2005 in

achieving its totals. However, ROPO’s evidence shows that, in October 2004, it

sent a letter to each of the River Oaks property owners, with a list of proposed

amendments and a meeting invitation. In March 2005, ROPO sent each of the

property owners a copy of the final version of the proposed amended restrictions, a

summary of the amendments, a ballot, and a letter seeking an affirmative vote. In

January 2006, ROPO determined that the ballots it had circulated did not include a

date by which the property owner had to return the ballot for it to be counted,

pursuant to the Property Code. Thus, in February 2006, ROPO placed a stamp,

stating a due date of December 1, 2006, on each of the ballots that had been

previously submitted and returned the ballots to the respective property owners. In

an attached letter, ROPO asked the property owners to re-affirm and to re-submit

their votes by the due date. ROPO also sent a corrected ballot to each of the property

owners who had not previously voted. Thus, as ROPO explained, the presence of

the 2006 stamp on each ballot unequivocally established that it was not circulated

until 2006.

29 ROPO also presented the affidavit of its expert, Gregory S. Cagle, who

testified that the Amended Restrictions were properly approved by the property

owners. Cagle opined, based on his examination of the ballots related to the 2006

proposed amendments, that the ballots were “signed by the owners of property in the

River Oaks Subdivision and the Ballot Results Report accurately reflects as to each

affirmative ballot received: (1) the identity of the property for which the ballot

relates; (2) the square footage of such property; and (3) the section in which such

property is located.” Cagle testified:

Based on my analysis of the Ballot Results Report, the 2006 Declaration Amendment was approved by the owners of more than 75% of the real property (in terms of square footage) in the River Oaks Subdivision. In order to form my expert opinion, I performed an audit of the ballots cast by the owners of the real property subject to the 2006 Declaration Amendment (the “River Oaks Subdivision”) concerning the approval of the 2006 Declaration Amendment using the 2006 Billing Roll utilized by the Association (the “2006 ROPO Master Database”) and the 2006 Master Database of Properties generated by Harris Central Appraisal District (the “2006 HCAD Database” ).

Cagle further testified, based on his analysis, that:

a. owners of 78.39% of the real property in the River Oaks Subdivision (based on the square footage numbers from the 2006 ROPO Master Database) approved the 2006 Declaration Amendment; b. 82.00% of the owners of real property in the “fifth section ” of River Oaks Addition, consisting of Blocks Twenty-Nine (29) and Thirty (30), in River Oaks Section Five, a subdivision in Harris County, Texas, according to the map or plat recorded in Volume 10, Page 18 , of the Map Records of Harris County, Texas (hereinafter referred to as “Section Five”) (based on the number

30 of owners for each property contained therein as reflected in the 2006 HCAD Database) approved the 2006 Declaration Amendment; and c. Owners of 75.39% of the total number of properties in the Association’s jurisdiction (based on the total number of properties identified in the 2006 ROPO Master Database) approved the 2006 Declaration.

Keenan complained that Cagle’s calculations were flawed because, in his

deposition, he testified that he counted ballots that were dated in 2005, prior to the

recirculation of the corrected ballots. The record shows, however, that Cagle

testified that he only counted ballots that contained both stamps, i.e., that were

circulated on or after February 8, 2006.

Keenan does not direct us to any evidence that raises a genuine issue of

material fact as to ROPO’s enforcement of the Amended Restrictions as arbitrary

and capricious on her asserted grounds.

Having concluded that ROPO presented evidence establishing its right to

judgment on its claim for breach of restrictive covenant and that Keenan did not

present evidence raising a genuine issue of material fact, we conclude that ROPO

conclusively established its right to judgment. We hold that the trial court did not

err in granting summary judgment in favor of ROPO on its claim for violation of a

restrictive covenant. See TEX. R. CIV. P. 166a(c); KPMG Peat Marwick, 988 S.W.2d

at 748.

31 B. ROPO’s Declaratory Claims

ROPO also moved for a summary judgment asserting that it was entitled as a

matter of law to declarations that the Amended Restrictions were validly enacted

and enforceable against Keenan’s Property; that the Amended Restrictions

constituted a valid contract between ROPO and Keenan; and that Keenan was

required to remove 1,260 square feet of impermeable surface from the Property to

bring it into compliance with the Amended Restrictions.

Declaratory judgments rendered by summary judgment are reviewed under

the same standards that govern summary judgments generally. Hourani v. Katzen,

305 S.W.3d 239, 248 (Tex. App.—Houston [1st Dist.] 2009, pet. denied). Texas

Civil Practice and Remedies Code section 37.004 provides that a “person interested

under a . . . written contract . . . may have determined any question of construction

or validity arising under the . . . contract . . . and obtain a declaration of rights, status,

or other legal relations thereunder.” TEX. CIV. PRAC. & REM. CODE § 37.004(a). A

contract “may be construed either before or after there has been a breach.” Id.

§ 37.004(b). In a declaratory-judgment action, a party who asserts a claim for

affirmative relief has the burden of proving its allegations. Alanis v. US Bank Nat’l

Ass’n, 489 S.W.3d 485, 500 (Tex. App.—Houston [1st Dist.] 2015, pet. denied).

As discussed above, ROPO presented evidence that the Amended Restrictions

were validly enacted and enforceable against the Property. Accordingly, we

32 conclude that the trial court did not err in granting ROPO summary judgment on its

claim for a declaration that the Amended Restrictions were validly enacted and

enforceable against Keenan’s Property.

In addition, restrictive covenants constitute a contract between an association

and a property owner. See Hourani, 305 S.W.3d at 251; Tien Tao Ass’n, Inc, v.

Kingsbridge Park Cmty. Ass’n, Inc., 953 S.W.2d 525, 533 (Tex. App.—Houston [1st

Dist.] 1997, no pet.). Thus, having concluded that the Amended Restrictions are

valid and enforceable, we conclude that the trial court did not err in declaring that

they constitute a valid contract between ROPO and Keenan. Notably, the evidence

reflects that Keenan herself voted in favor of the Amended Restrictions.

Finally, as discussed above, ROPO presented the affidavit of Probstfeld, who

testified, based on his survey and inspection, that the allowable impermeable surface

area of the Property is 6,580 square feet and that the total combined impermeable

surface area in place totals 7,840 square feet. As discussed, Keenan did not present

evidence raising a genuine issue of material fact. Thus, ROPO conclusively

established that Keenan exceeded the allowable impermeable surface area by 1,260

square feet. We conclude that the trial court did not err in granting summary

judgment for ROPO on its claim for a declaration requiring Keenan to remove 1,260

square feet of impermeable surface area from the Property to bring it into compliance

33 C. Keenan’s Counterclaim to Quiet Title

Keenan argues that the trial court erred in granting summary judgment in favor

of ROPO on her counterclaim to quiet title because the Amended Restrictions were

“not properly approved by the requisite number of properties in River Oaks.” Thus,

ROPO’s claim for violation of a restrictive covenant, if enforced, would interfere

with her use and enjoyment of the Property. And, the trial court erred in not

removing “this cloud on her title to the Property.”

To prevail on a claim to quiet title, Keenan must show (1) an interest in a

specific property, (2) that title to the property is affected by a claim by ROPO, and

(3) that the claim, although facially valid, is invalid or unenforceable. Vernon v.

Perrien, 390 S.W.3d 47, 61–62 (Tex. App.—El Paso 2012, pet. denied). Thus, her

suit to quiet title relies on the invalidity of ROPO’s claim to the Property. See Essex

Crane Rental Corp. v. Carter, 371 S.W.3d 366, 388 (Tex. App.—Houston [1st Dist.]

2012, pet. denied). Having concluded above that the Amended Restrictions are valid

and enforceable, we conclude that the trial court did not err in granting summary

judgment for ROPO on Keenan’s counterclaim to quiet title.

D. Keenan’s Counterclaim for Fair-Housing Violations

Keenan argues that the trial court erred in granting summary judgment in favor

of ROPO on her “fair-housing counterclaims and related defenses.” She brought a

counterclaim against ROPO for violations of the FHAA, TFHA, and HFHO. See 42

34 U.S.C. § 3604 (FHAA); TEX. PROP. CODE § 301.025 (TFHA); HOUSTON, TEX.,

CODE OF ORDINANCES, ch. 17, art. III, § 17-12(f) (2021) (HFHO).

ROPO argues that the trial court did not err in granting summary judgment in

its favor on Keenan’s counterclaim because a review of the record as a whole

demonstrates that there were no genuine issues of material fact. ROPO further

argues that the FHAA does not apply to Keenan’s single-family residence and that

this issue became moot upon Gaines’s death.

1. Fair-Housing Acts and Ordinance

In 1988, Congress amended the Fair Housing Act to prohibit discrimination

against disabled individuals in the national housing market. Groome Res. Ltd.,

L.L.C. v. Par. of Jefferson, 234 F.3d 192, 200–01 (5th Cir. 2000). In 1993, the Texas

Legislature enacted the TFHA to provide rights and remedies substantially

equivalent to those granted under federal law. See TEX. PROP. CODE § 301.002. Both

the FHAA and the TFHA make it unlawful:

To discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap of— (A) that buyer or renter; (B) a person residing in or intending to reside in that dwelling after it is sold, rented, or made available; or (C) any person associated with that buyer or renter.

42 U.S.C. § 3604(f)(1); see TEX. PROP. CODE § 301.025(a).

35 Similarly, it is unlawful:

To discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with such dwelling, because of a handicap of— (A) that person; or (B) a person residing in or intending to reside in that dwelling after it is so sold, rented, or made available; or (C) any person associated with that person.

42 U.S.C. § 3604(f)(2); see TEX. PROP. CODE § 301.025(b).

Under the FHAA and TFHA, “discrimination” includes:

(A) a refusal to permit, at the expense of the handicapped person, reasonable modifications of existing premises occupied or to be occupied by such person if such modifications may be necessary to afford such person full enjoyment of the premises . . . [;] (B) a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling[.]

42 U.S.C. § 3604(f)(3); see TEX. PROP. CODE § 301.025(c).

A “handicap” is defined as (1) a physical or mental impairment that

substantially limits one or more of a person’s major life activities, (2) a record of

having such an impairment, or (3) being regarded as having such an impairment. 42

U.S.C. § 3602(h); see TEX. PROP. CODE § 301.003(6) (similarly defining

“disability”). A “dwelling” includes “any building, structure, or portion thereof

36 which is occupied as, or designed or intended for occupancy as, a residence by one

or more families.” 42 U.S.C. § 3602(b); see TEX. PROP. CODE § 301.003(8).

The FHAA and TFHA each provide that an “aggrieved person” may file a

civil action to obtain relief. 42 U.S.C. § 3613(a); see TEX. PROP. CODE § 301.151.

If a trial court finds that a discriminatory housing practice has occurred or is about

to occur, it may award the plaintiff actual and punitive damages and may order

injunctive relief. 42 U.S.C. § 3613(c); see TEX. PROP. CODE § 301.153. It may also

award certain attorney’s fees and costs. 42 U.S.C. § 3613(c); see TEX. PROP. CODE

§ 301.153.

The HFHO contains substantially similar provisions, including that a person

commits an offense if he:

Refuses to make reasonable accommodations in rules, policies, practices, or services when the accommodations may be necessary to afford a person with a disability equal opportunity to use and enjoy a housing accommodation; . . . .

HOUSTON, TEX., CODE OF ORDINANCES, ch. 17, art. III, § 17-12(f)(2). The HFHO

also provides that “[a]n aggrieved person may file a civil action in state district

court” to obtain appropriate relief without regard to whether a complaint has been

filed for review by the fair housing administrator. Id. art. VI, sec. 17-51(a), (b). If

a trial court finds that a discriminatory housing practice has occurred, it may order

injunctive relief and may award damages, certain attorney’s fees, and costs. Id. art.

VI, sec. 17-51(d), (e). 37 2. Applicability

As a threshold matter, ROPO argues that Keenan’s “fair housing claims fail

as a matter of law because the [FHAA] does not apply to the Property.”4 ROPO

asserts that, in Meehl v. Wise, the court of appeals “squarely held” that the FHAA

“does not apply to single-family homes like Keenan’s.” 285 S.W.3d 561, 571 (Tex.

App.—Houston [14th Dist.] 2009, no pet.).

In Meehl, homeowners purchased two adjoining lots in a subdivision, on

which they began constructing a retreat center, consisting of four guest suites, for

persons with bipolar disorder. Id. at 564. Asserting that the subdivision deed

restrictions prohibited use of a lot for anything other than a single-family residence,

neighbors sued the homeowners. Id. The trial court rendered judgment for the

neighbors, permanently enjoining the homeowners from constructing the

community home. Id. On appeal, the homeowners argued that the trial court erred

in finding that they had failed to show that discrimination under the FHAA had

occurred or would occur, as a result of the enforcement of the restriction. Id. at 570.

4 The TFHA “provide[s] rights and remedies substantially equivalent to those granted under federal law.” TEX. PROP. CODE § 301.002. The language in TFHA subsections 301.025(a), (b), and (c)(2) is nearly identical to that in FHAA subsections 3604(f)(1), (2), and (3)(B). Chavez v. Aber, 122 F. Supp. 3d 581, 601 (W.D. Tex. 2015) (comparing TEX. PROP. CODE § 301.025 with 42 U.S.C. § 3604(f)). The HFHO contains substantially similar provisions. See HOUSTON, TEX., CODE OF ORDINANCES, ch. 17, art. III, § 17-12(a), (b), (e), and (f). Accordingly, we analyze Keenan’s claims in the context of the federal act’s provisions, but the discussion applies equally to her claims brought under the state and city analogues. 38 They argued that FHAA section 3604(f)(1), (2), and (3)(B) made it unlawful to

discriminate in the provision of housing based on a handicap or to refuse to make

reasonable accommodations as necessary to afford an equal opportunity to use and

enjoy a dwelling. Id. at 570–71.

The court of appeals in Meehl concluded, based on FHAA section 3603(b)(2),

that “these provisions [section 3604(f)(1), (2), and (3)(B)] do not apply to ‘rooms or

units in dwellings containing living quarters occupied or intended to be occupied by

no more than four families living independently of each other, if the owner actually

maintains and occupies one of such living quarters as his residence.’” Id. at 571

(quoting 42 U.S.C. § 3603(b)(2)). Because it was undisputed that the house at issue

was a single-family residence in which the homeowners resided and it was not

intended to be occupied by more than four families, the court concluded that “section

3604(f) [did] not apply.” Id. The court held that, apart from inapplicable exception

for certain publications, “[s]ection 3603(b)(2) exempts resident homeowners from

the protections of all provisions of section of 3604.” Id.

We disagree that section 3603 should be read to broadly “exempt[] resident

homeowners from the protections of all provisions of section 3604.” See id. The

United States Supreme Court has instructed that exemptions from the FHAA are to

be read narrowly. City of Edmonds v. Oxford House, Inc., 514 U.S. 725, 731–32

(1995).

39 FHAA section 3603(a) provides that the “prohibitions against discrimination

in the sale or rental of housing set forth in section 3604 of this title shall apply . . .

to all dwellings [owned, operated, or funded by the federal government] and to all

other dwellings except as exempted by subsection (b).” 42 U.S.C. § 3603(a)(2)

(emphasis added). Subsection (b) provides that “[n]othing in section 3604,” with

inapplicable exception, shall apply to:

(1) any single-family house sold or rented by an owner: Provided, That such private individual owner does not own more than three such single-family houses at any one time: Provided further, That in the case of the sale of any such single-family house by a private individual owner not residing in such house at the time of such sale or who was not the most recent resident of such house prior to such sale, the exemption granted by this subsection shall apply only with respect to one such sale within any twenty-four month period: Provided further, That such bona fide private individual owner does not own any interest in, nor is there owned or reserved on his behalf, under any express or voluntary agreement, title to or any right to all or a portion of the proceeds from the sale or rental of, more than three such single-family houses at any one time: Provided further, That after December 31, 1969, the sale or rental of any such single-family house shall be excepted from the application of this subchapter only if such house is sold or rented (A) without the use in any manner of the sales or rental facilities or the sales or rental services of any real estate broker, agent, or salesman, or of such facilities or services of any person in the business of selling or renting dwellings, or of any employee or agent of any such broker, agent, salesman, or person and (B) without [certain prohibited publications]; . . . , or (2) rooms or units in dwellings containing living quarters occupied or intended to be occupied by no more than four families living independently of each other, if the owner actually maintains and occupies one of such living quarters as his residence.

40 42 U.S.C. § 3603(b) (emphasis in original).

Thus, section 3603(b) exempts sales or rental transactions (homes or rooms)

conducted by certain owners of single-family homes.5 See id. It does not exempt

land-use actions affecting single-family homes, as here. See Smith & Lee Assoc.,

Inc. v. City of Taylor, Mich., 13 F.3d 920, 924 n.5 (6th Cir. 1993) (rejecting that city

was exempt from section 3604(f) liability by reason of section 3603(b) and holding

section 3603(b) exemption applicable only to sale or rental transactions by single-

family homeowners and not to municipal actions affecting single-family homes).

5 Notably, the TFHA analogue clearly exempts certain sales or rental transactions conducted by certain owners of single-family homes: (a) Sections 301.021 . . . and 301.025 do not apply to: (1) the sale or rental of a single-family house sold or rented by the owner if: (A) the owner does not: (i) own more than three single-family houses at any one time; or (ii) own any interest in . . . more than three single- family houses at any one time; and (B) the house is sold or rented without: (i) the use of the sales or rental facilities or services of a broker, agent, or salesperson . . . ; or (ii) [certain prohibited advertisements]; or (2) the sale or rental of the rooms or units in a dwelling containing living quarters occupied by or intended to be occupied by not more than four families living independently of each other, if the owner maintains and occupies one of the living quarters as the owner’s residence. TEX. PROP. CODE § 301.041 (“Certain Sales and Rentals Exempted”). 41 Indeed, the “legislative history of the [FHAA] reflects that when a zoning or

land-use ordinance restricts the ability of handicapped individuals [to live] in the

community of their choice, that regulation is unlawful.” Robinson v. City of

Friendswood, 890 F.Supp. 616, 622 (S.D. Tex. 1995) (citing H.R. Rep. No. 711,

100th Cong., 2d Sess. 24 (1988), reprinted in 1988 U.S. Code Cong. & Admin. News

2173, 2183). The House Report reflects that 3604(f) applies “to state or local land

use and health and safety laws, regulations, practices or decisions which discriminate

against individuals with handicaps” and is “intended to prohibit the application of

special requirements through land-use regulations, restrictive covenants, and

conditional or special use permits that have the effect of limiting the ability of such

individuals to live in the residence of their choice in the community.” H.R. Rep. No.

711, 100th Cong., 2d Sess. 24 (emphasis added). Thus, section 3604(f) applies “not

only to sellers or landlords, but to sophisticated practices such as enforcing zoning

or land use laws that have the effect of denying housing to the disabled.” Robinson,

890 F.Supp. at 622.

Here, Keenan alleges that ROPO’s enforcement of a restrictive covenant and

refusal of her requested accommodation had the effect of denying housing to her

disabled mother-in-law, in violation of section 3604(f). Thus, Keenan alleges that

ROPO took discriminatory enforcement action affecting her Property. We conclude

that the FHAA applies to the instant proceedings.

42 3. Mootness

ROPO argues that Keenan’s counterclaims for violations of the FHAA,

TFHA, and HFHO are moot. The record shows that the trial court took judicial

notice in its judgment that Keenan’s mother-in-law, Gaines, died during the course

of the proceedings.

The mootness doctrine implicates subject-matter jurisdiction. Trulock v. City

of Duncanville, 277 S.W.3d 920, 923 (Tex. App.—Dallas 2009, no pet.). An

appellate court is prohibited from deciding a moot controversy or rendering an

advisory opinion. See Nat’l Collegiate Athletic Ass’n v. Jones, 1 S.W.3d 83, 86

(Tex. 1999); City of Farmers Branch v. Ramos, 235 S.W.3d 462, 469 (Tex. App.–

Dallas 2007, no pet.) (noting that courts may only decide issues presenting “a live

controversy at the time of the decision”). If a controversy ceases to exist or the

parties lack a legally cognizable interest in the outcome at any stage, the case

becomes moot. Allstate Ins. Co. v. Hallman, 159 S.W.3d 640, 642 (Tex. 2005);

Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001) (noting that “controversy must

exist between the parties at every stage of the legal proceedings, including the

appeal”). The same is true if an appellate court’s judgment cannot have any practical

legal effect upon a then existing controversy. Zipp v. Wuemling, 218 S.W.3d 71, 73

(Tex. 2007) (“An appeal is moot when a court’s action on the merits cannot affect

the rights of the parties.”).

43 “The FHA allows any ‘aggrieved person’ to bring a housing-discrimination

lawsuit.” Bank of Am. Corp. v. City of Miami, Fla., 137 S. Ct. 1296, 1303 (2017)

(citing 42 U.S.C. § 3613(a)). The statute defines an “aggrieved person” as “any

person” who “claims to have been injured by a discriminatory housing practice.” Id.

(citing 42 U.S.C. § 3602(i)); see also TEX. PROP. CODE § 301.003(1). There is not a

requirement that the complainant be the disabled person. In addition, under the

FHAA, “a violation occurs when the disabled resident is first denied a reasonable

accommodation.” Groome Res., 234 F.3d at 199. The FHAA, TFHA, and HFHO

provide for injunctive relief, actual and punitive damages, reasonable attorney’s

fees, and costs. See 42 U.S.C. § 3613(c); TEX. PROP. CODE § 301.153; HOUSTON,

TEX., CODE OF ORDINANCES, ch. 17, art. VI, sec. 17-51(d), (e).

Here, Keenan, and not Gaines, brought fair-housing claims against ROPO

based on its alleged refusal in 2013 to allow Keenan to exceed the impermeable

cover restriction at the Property in order to accommodate a disabled person. See 42

U.S.C. §§ 3604(f), 3613(a)). The asserted violation occurred in 2013. See Groome

Res., 234 F.3d at 199. Keenan’s requested relief includes actual and punitive

damages, attorney’s fees, and costs. See 42 U.S.C. § 3613(c); TEX. PROP. CODE

§ 301.153; HOUSTON, TEX., CODE OF ORDINANCES, ch. 17, art. VI, sec. 17-51(d), (e).

Whether Keenan can recover her asserted damages, attorney’s fees, and costs

remains a live controversy. See Hallman, 159 S.W.3d at 642; Briones v. Brazos

44 Bend Villa Apartments, 438 S.W.3d 808, 813 (Tex. App.—Houston [14th Dist.]

2014, no pet.) (concluding that fee dispute constituted live controversy).

Accordingly, we hold that Keenan’s fair-housing counterclaim is not moot.

4. Fair-Housing Counterclaim

In her counterclaim against ROPO, Keenan alleges that ROPO “refus[ed] to

make reasonable accommodations in rules, policies, practices, or services, when

such accommodations may be necessary to afford [a disabled person] equal

opportunity to use and enjoy a dwelling[.]” 42 U.S.C. § 3604(f)(3)(b).

Again, the FHAA makes it unlawful to discriminate in a sale or rental of, or

to otherwise make unavailable or deny, a dwelling to any buyer or renter or to

discriminate against any person in the terms, conditions, or privileges of a sale or

rental, or in the provision of services or facilities in connection with such dwelling,

because of a “handicap” of (A) a buyer or renter; (B) a person “residing in or

intending to reside in” the dwelling after it is sold, rented, or made available; or

(C) any associated person. Id. § 3604(f)(1), (2). “For purposes of [subsection (f)],

discrimination includes . . . a refusal to make reasonable accommodations in rules,

policies, practices, or services, when such accommodations may be necessary to

afford such person equal opportunity to use and enjoy a dwelling.” Id.

§ 3604(f)(3)(B).

45 Thus, to establish her claim of discrimination under section 3604(f), Keenan

must prove: (1) that she or a “person residing in or intending to reside in” her

dwelling is “handicapped,” as defined in section 3602(h); (2) that ROPO knew or

should reasonably have been expected to know of the disability; (3) that

accommodation of the handicap may be necessary to afford the disabled person an

equal opportunity to use and enjoy the dwelling; (4) that the accommodation is

reasonable; and (5) that ROPO refused to make the requested accommodation. See

42 U.S.C. §§ 3602(h), 3604(f)(1), (2), (3)(B); Chavez v. Aber, 122 F. Supp. 3d 581,

595 (W.D. Tex. 2015); see, e.g., Eastwood v. Willow Bend Lake Homeowners Ass’n,

Inc., No. 4:20-CV-00400, 2020 WL 3412409, at *2–3 (E.D. Tex. June 22, 2020).

In its motion for summary judgment, ROPO argued, with respect to the first

and second elements, that the summary-judgment evidence establishes that, at the

time she sought an accommodation, Keenan failed to identify a handicapped

individual who resided or intended to reside at the Property. See 42 U.S.C.

§§ 3602(h), 3604(f)(1), (2), (3)(B). And, thus, ROPO did not know, and could not

have reasonably been expected to know, of a disability at the time that it denied

Keenan’s requested accommodation, i.e., Proposal 2. See 42 U.S.C. § 3604(f)(3)(B);

Groome Res., 234 F.3d at 199 (holding FHAA violation occurs when disabled

resident is “first denied a reasonable accommodation”).

46 In support, ROPO presented Keenan’s Proposal 2, dated February 20, 2013,

which contains notations that Keenan’s stated objectives in seeking to exceed the

impermeable cover limitation were access, security, and “trying to get cars off the

street.” ROPO also presented the deposition testimony of Jeffrey L. Lyman, a

member of the Board and chairman of the ROPO Building and Restrictions

Committee in 2013. Lyman testified that, at a committee meeting in March 2013,

Keenan stated that she sought to exceed the impermeable cover limitation on behalf

of her niece, who “had some sort of debilitating disease that ultimately might require

her to come live with them.” And, “as a result, they wanted to accommodate the

potential need for her living there by installing these handicap access elements in

their house.”

ROPO’s evidence shows that, in a March 19, 2013 letter to Keenan, ROPO

notified her that it would not approve Proposal 2, but that she could proceed with

construction as previously approved in Proposal 1. And, in a December 2, 2013

letter to Keenan, ROPO notified her that it had discovered that she had commenced

construction in accordance with the rejected Proposal 2. ROPO demanded that

Keenan cease all installation of exterior surfaces and submit plans to remedy the

violation of the impermeable-surfaces limitation.

ROPO’s evidence also shows that, at a December 4, 2013 committee meeting,

Keenan stated that she had commenced construction in accordance with Proposal 2

47 because she volunteers and hosts events a minimum of once per month, “special

events require additional space,” she was trying to have the “most gracious access”

to the house possible, and that she was “not required to change [her] lifestyle.”

ROPO also presented Keenan’s July 12, 2018 deposition testimony, in which she

confirmed that this discussion was accurate.

ROPO’s evidence shows that, in a December 17, 2013 letter to ROPO,

Keenan’s counsel stated that Keenan was close to completing the construction of a

new house on the Property and that, during construction, her in-laws had “suffered

a decline in their health,” such that her mother-in-law “now requires a wheelchair.”

Accordingly, Keenan and her husband “modified their original plans to provide

wheelchair access and other accommodations to [her in-laws].” However, the letter

neither identified Keenan’s mother-in-law nor her handicap. See 42 U.S.C.

§ 3604(f)(1), (2), (3)(B).

On May 20, 2015, ROPO moved to compel Keenan to identify the mother-in-

law and her handicap. See 42 U.S.C. § 3604(f)(3)(B); see also § 3602(h) (defining

“handicap”). At a June 1, 2015 hearing on the motion to compel, ROPO complained

that Keenan, in order to support her claim under the FHAA, was required to identify

the disabled person needing the asserted accommodation and that Keenan had

refused. Keenan’s counsel responded that because Keenan’s mother-in-law would

not be called to testify at trial, Keenan was not required to identify her.

48 Subsequently, during her June 17, 2015 deposition testimony, Keenan identified her

mother-in-law as Lavera Gaines and testified that she had arthritis.

The FHAA prohibits a “refusal to make reasonable accommodations in rules,

policies, practices, or services, when such accommodations may be necessary to

afford such person equal opportunity to use and enjoy a dwelling[.]” 42 U.S.C.

§ 3604(f)(3)(B) (emphasis added). That is, a plaintiff must actually request an

accommodation and be refused in order to bring a claim under the FHAA. Schwarz

v. City of Treasure Island, 544 F.3d 1201, 1219 (11th Cir. 2008). The duty to make

a reasonable accommodation

does not simply spring from the fact that the handicapped person wants such an accommodation made. Defendants must instead have been given an opportunity to make a final decision with respect to [the] request, which necessarily includes the ability to conduct a meaningful review of the requested accommodation to determine if such an accommodation is required by law.

Id. at 1218–19. “In other words, [a defendant] cannot be liable for refusing to grant

a reasonable and necessary accommodation if [it] never knew the accommodation

was in fact necessary.” Id. at 1219 (internal quotations omitted).

Here, the evidence shows that it was not until two years after ROPO’s March

19, 2013 rejection of Keenan’s Proposal 2, eighteen months after litigation had

commenced, and only in response to a motion to compel, that she first revealed the

identity of her mother-in-law to ROPO and the nature of her handicap. Thus,

ROPO’s summary-judgment evidence establishes that Keenan did not, before ROPO 49 denied her requested accommodation, identify to ROPO any individual as

“handicapped,” as defined by the FHAA. See 42 U.S.C. § 3604(f)(1), (2), (3)(B);

Groome Res., 234 F.3d at 199 (“Under the Fair Housing Act . . . a violation occurs

when the disabled resident is first denied a reasonable accommodation.”).

We conclude that ROPO’s summary judgment evidence establishes its right

to judgment against Keenan on her counterclaim for violations of the FHAA, TFHA,

and HFHO. See Siegler, 899 S.W.2d at 197. Accordingly, the burden shifted to

Keenan to present evidence raising a genuine issue of material fact precluding

summary judgment. See id.

In her summary-judgment response, Keenan asserted that she asked ROPO to

“allow her to exceed the hardscape limitation in the [Amended Restrictions] to

accommodate her handicapped mother- and father-in-law” on March 16, 2013, i.e.,

three days before ROPO’s March 19, 2013 rejection of Proposal 2. In support, she

cited the following portion of her deposition testimony:

Q. March 16, 2013 was the first time that you asked for an accommodation for a disabled person, isn’t that correct? A. That is correct. Q. And for whom were you asking for the accommodation? I mean, what is the name or the identity of the disabled person for whom you were requesting an accommodation? A. My husband’s mother and father. Q. And can you give my their full names, please? A. Well, his father is since deceased, but it’s Charles R. Gains. Q. Uh-huh. 50 A. And Lavera Gaines. Q. Were either Charles R. Gains or Lavera Gaines living with you at [the Property]? A. No, ma’am.

Keenan also quoted a lengthy portion of her deposition testimony in which

she described learning that her in-laws needed to come and live with her and her

husband. However, in the quoted portion of her deposition, Keenan testified that, at

the time that she first learned about her in-laws need to come and live with her: “My

house was already constructed at that point, to a point where it was—you know, we

were within six months or so of moving in . . . .” And, she testified that she moved

into the house in 2014.

Keenan further testified that, at the time she submitted Proposal 2 to ROPO,

in which she sought the accommodation, she was unaware of anyone who actually

needed an accommodation. Rather, only she and her husband resided at the

Property, and she sought it for herself and her husband for the future, as follows:

Q. Well, Ms. Keenan, you testified that Mr. Gaines, the senior Mr. Gaines, informed you in November of 2011 that they were going to have to come live with you. The plans you submitted to ROPO were dated in 2011 and did not include— A. I don’t believe that’s correct. Q. I believe it is. A. It was— Q. Are you changing your testimony, Ms. Keenan?

51 A. No, ma’am. I’m clarifying what I—the dates I told you, it was within less than six months of when we moved in, which was in [20]14. So that . . . . Q. That’s not what you previously testified to, Ms. Keenan. A. Well, then I misspoke. Because it was—the timeline is not— what you just told me is not correct. We didn’t know that that far in advance. Q. You knew, however, Ms. Keenan, that someone with a disability was going to be living in your home in 2011 when you submitted plans? A. No, ma’am. Q. So all the handicap accessibility features that you planned into your home — A. Were for my husband and myself. For future. .... A. Because at the time, 2011, both my husband and I were hale and hearty. . . .

(Emphasis added.) Thus, Keenan later “clarif[ied]” that she did not know that her

mother- and father-in-law needed the accommodation at issue until it “within less

than six months of when [Keenan] moved in, which was in [20]14.”

Further, during her 2018 deposition, when Keenan was asked whether she was

aware that none of the members of the Board or Committee recalled her having ever

mentioned Gaines at any of the meetings prior to December 2013, she replied in the

negative. When asked whether she had specifically named Gaines, she replied: “I

don’t recall if I did or not.”

Keenan also points to her counsel’s December 17, 2013 letter to ROPO,

“notifying” it that Keenan was close to completing the construction of a new house 52 on the Property and that her mother-in-law had suffered a decline such that she “now

requires a wheelchair.” However, this letter is dated 9 months after ROPO’s March

19, 2013 rejection of Proposal 2. In addition, the letter neither identifies Keenan’s

mother-in-law nor any handicap.

Keenan also points to a December 20, 2013 letter from ROPO to Keenan’s

counsel, in which she asserts that ROPO “confirmed that [Keenan] had informed

[ROPO] during the approval process that she had a disabled family member that

required modification to her landscaping plan.” The letter reflects that ROPO

reiterated that, on March 6, 2013, Keenan submitted revised landscape plans that

were significantly different than those submitted in November 2011. Among other

modifications, the proposed impermeable space increased to 7,845, which was well

above that allowed for the Property. ROPO noted that this request would, therefore,

require a variance. The revised landscape plan also added a raised landing and steps

on three sides at the front door. As this element was over the front setback line for

the home, a variance was also required for its approval. ROPO noted that, in support

of her request, Keenan had stated that she “needed the additional space and entryway

modifications because they entertained often” and because Keenan’s “niece (who is

handicapped) may need to live with them in the future.” On March 19, 2013, ROPO

advised Keenan that it had denied her requested variance, but that she could

commence construction based on her previous plan, i.e., Proposal 1. The letter does

53 not identify the niece, identify a handicap, state that the niece required handicap

accessibility, or assert that the niece resided or intended to reside at the Property.

Notably, the letter also does not mention Gaines.

Evidence raises a genuine issue if reasonable jurors could differ in their

conclusions in light of all of the summary-judgment evidence. Mayes, 236 S.W.3d

at 755. Here, ROPO’s evidence establishes that Keenan did not, at the time ROPO

denied her requested accommodation, i.e., Proposal 2, identify a handicapped

individual, as defined in section 3602(h), who resided or intended to reside at the

Property. See 42 U.S.C. § 3604(f)(1), (2), (3)(B). Thus, the evidence establishes

that ROPO did not know, and could not have reasonably been expected to know, of

a disability at the time that it denied Keenan’s requested accommodation, i.e.,

Proposal 2. See 42 U.S.C. § 3604(f)(1), (2), (3)(B); TEX. PROP. CODE

§ 301.025(c)(2); HOUSTON, TEX., CODE OF ORDINANCES, ch. 17, art. III, sec. 17-

12(f)(2); Groome Res., 234 F.3d at 199 (“Under the Fair Housing Act . . . a violation

occurs when the disabled resident is first denied a reasonable accommodation.”).

And, Keenan did not present evidence raising a genuine fact issue as to these

elements.

Accordingly, we conclude that ROPO conclusively established its right to

judgment on Keenan’s fair-housing counterclaim. See Schwarz, 544 F.3d at 1219

(holding defendant “cannot be liable for refusing to grant a reasonable and necessary

54 accommodation if [it] never knew the accommodation was in fact necessary”);

Hawn v. Shoreline Towers Phase 1 Condo. Ass’n, Inc., 347 F. App’x 464, 468 (11th

Cir. 2009) (holding that trial court did not err in granting summary judgment for

condominium association on property owner’s federal and state fair-housing act

claims because his evidence, in which he presented unclear and inconsistent

explanations as to nature and extent of his disability and refused to comply with

subsequent requests for reasonable documentation, thus preventing association from

conducting meaningful review of his application, was insufficient to raise fact issue

on association’s knowledge of disability and necessity of accommodation).

We hold that the trial court did not err in granting summary judgment in favor

of ROPO on Keenan’s fair-housing counterclaim. See TEX. R. CIV. P. 166a(c);

Martinez, 941 S.W.2d at 911.

We overrule Keenan’s first issue.

Evidentiary Issues

In her second issue, Keenan asserts that the trial court erred in excluding

portions of her summary-judgment evidence. She challenges the exclusion of

(1) portions of the affidavit of Jacobus and two attachments; (2) portions of the

affidavit of Murphy and two attachments; and (3) the affidavit of Valentine.

We review a trial court’s decision to admit or exclude evidence for an abuse

of discretion. Owens-Corning Fiberglass Corp. v. Malone, 972 S.W.2d 35, 43 (Tex.

55 1998). “[I]n addition to showing an abuse of discretion, a party complaining of error

in the exclusion of evidence must also show that the trial court’s error was

reasonably calculated to cause, and probably did cause, the rendition of an improper

judgment.” Madison v. Williamson, 241 S.W.3d 145, 151 (Tex. App.—Houston [1st

Dist.] 2007, pet. denied); see TEX. R. APP. P. 44.1(a)(1); City of Brownsville v.

Alvarado, 897 S.W.2d 750, 753 (Tex. 1995).

1. Jacobus

Keenan complains that the trial court erred in excluding portions of the

affidavit of Jacobus, an attorney who examined the ROPO ballots and the Langdon

ballots and presented a conclusion that ROPO did not obtain sufficient approval of

the proposed Amended Restrictions. She also complains that the trial court erred in

striking the Langdon ballots and rescission forms.

ROPO moved to strike portions of the Jacobus affidavit because the trial court

had previously entered an order striking Keenan’s designation of Jacobus as an

expert insofar as he was to offer legal opinions and because Jacobus’s testimony was

conclusory. It moved to strike the Langdon ballots and rescission forms, which were

created and circulated by a property owner not affiliated with ROPO, as having no

legal effect.

Expert affidavits opposing a motion for summary judgment must present

probative evidence of the facts at issue. Ryland Group v. Hood, 924 S.W.2d 120,

56 122 (Tex. 1996). In addition, conclusory statements, not supported by factual

allegations, are insufficient to defeat summary judgment. Brownlee v. Brownlee,

665 S.W.2d 111, 112 (Tex. 1984). A statement is conclusory if it provides a legal

conclusion but does not provide the underlying facts to support the conclusion. See

Pipkin v. Kroger Tex., L.P., 383 S.W.3d 655, 670 (Tex. App.—Houston[14th Dist.]

2012, pet. denied).

In his affidavit, Jacobus offered legal conclusions, in contravention of the trial

court’s prior order. In addition, he offered conclusions “based on his audit” of the

total votes received without explaining any of his underlying methodology. Notably,

he states in his affidavit that he reviewed the Langdon ballots, which were not

created or circulated by ROPO and thus are of no legal effect. We conclude that the

trial court did not err in excluding the complained-of testimony and Langdon ballots

and rescission forms.

2. Murphy

Keenan complains that the trial court erred in excluding portions of the

affidavit of Murphy, an architect and accessibility specialist, who testified regarding

the reasonableness and necessity of the requested accommodation, i.e., exceeding

the impermeable cover limitations in the Amended Restrictions. She also complains

that the trial court struck his attached “General Site and Building Elements,”

discussing handicap accessibility, and his letter, dated December 3, 2013, containing

57 his opinions on the suitability and necessity of the parking area and loading zones at

the Property.

Because we held above that the trial court did not err in granting summary

judgment for ROPO on Keenan’s fair-housing claim based on the first and second

elements, i.e., identifying a person residing or intending to reside at the Property as

“handicapped” under the FHAA, we do not reach the third and fourth elements of

her claim, i.e., whether the requested accommodation was reasonable and necessary.

Because the Murphy evidence speaks to the third and fourth elements, we do not

reach whether the trial court erred in excluding this evidence.

3. Valentine

Keenan complains that the trial court erred in excluding the affidavit of Paul

M. Valentine, a registered professional surveyor, who testified that he performed a

survey of the Property on February 11, 2014 and that “the area of the house is 3,098

square feet, the area of the garage is 950 square feet, the area of the concrete flatwork

is 3,231, and the total surface area of these improvements is 7,279 square feet.”

Even were we to conclude that the trial court erred in excluding Valentine’s

affidavit, Keenan cannot show that such error was reasonably calculated to cause,

and probably did cause, the rendition of an improper judgment. See TEX. R. APP. P.

44.1(a)(1). Valentine’s calculations approximated those of ROPO’s expert,

Probstfeld, who testified that, based on his October 8, 2014 survey and his inspection

58 of the Property, the combined area of improvements and impermeable surfaces on

the Property totaled 7,840 square feet. Further, as discussed above, Keenan

judicially admitted that the existing hardscape on the Property totaled 7,331 square

feet. Thus, Valentine’s affidavit is cumulative of other evidence, including Keenan’s

admission that she exceeded the impermeable surface limitation in the Amended

Restrictions.

We overrule Keenan’s second issue.

Conclusion

We affirm the trial court’s judgment.

Sherry Radack Chief Justice

Panel consists of Chief Justice Radack and Justices Kelly and Landau.