Full Opinion

In The Court of Appeals Ninth District of Texas at Beaumont ________________ NO. 09-24-00353-CV ________________ STEVEN PAUL WATSON AND LACEY WATSON, Appellants V. DAVIS-WOODS SUBDIVISION ARCHITECTURAL COMMITTEE, Appellee ___________________________________________________________________ On Appeal from the 258th District Court Polk County, Texas Trial Cause No. CIV22-0533 ___________________________________________________________________ MEMORANDUM OPINION Appellee the Davis-Woods Subdivision Architectural Committee (“the Committee”) sued Appellants Steven Paul Watson and Lacey Watson (individually, “Paul” and “Lacey,” collectively, “the Watsons”) for installing a fence that did not comply with a restrictive covenant found in the subdivision’s dedicatory instrument. See Tex. Prop. Code Ann. § 202.001(1), (4). The case was tried to the court, which found that the Committee was not a property owners’ association (“POA”) and that 1 the challenged restriction was enforceable. The trial court granted the Committee the declaratory judgment and injunction it sought, and entered judgment in the Committee’s favor requiring the Watsons to “remove the violating fence within 45 days of the execution of” the July 11, 2024 judgment. The trial court further ordered the Watsons to pay attorney’s fees and litigation expenses of $17,677.67, plus interest and conditional fees in the event of appeal to either this Court or the Texas Supreme Court. This appeal followed. In a single issue, with four subparts, the Watsons contend that the trial court erred in failing to apply section 202.023 of the Property Code to the Watsons’ fence. Because section 202.023 of the Property Code applies in this case and allows a home owner to install a perimeter fence, we reverse the trial court’s judgment and remand this case to the trial court. See id. § 202.023(b). BACKGROUND Before the Watsons purchased a home in the Davis-Woods Subdivision, in May 2021, the seller told the Watsons that they, the sellers, were not aware of any homeowners’ associations, maintenance fees, or assessments. After buying the property, the Watsons constructed a new fence, which enclosed the side yard and met the house at or near its front corner. The prior fence, in contrast, did not enclose the side yard and met the house at or near its rear corner. When the Committee and the Watsons could not agree on the acceptable fence placement, the Committee sued 2 the Watsons, alleging that the Watsons “failed to maintain [their] property to the standards of the community.” The Committee sought a declaratory judgment, an injunction, and attorney’s fees. The Watsons asserted multiple defenses and affirmative defenses, including the Committee’s violation of section 202.023 of the Texas Property Code, which dictates that a POA may not prohibit a homeowner from installing a perimeter fence. The Watsons, like the Committee, sought a declaratory judgment, an injunction, court costs, and attorney’s fees. We summarize the pertinent evidence below. The Parties’ Stipulations The parties stipulated to the following matters and narrowed the disputed issues: I. STIPULATIONS The Parties hereby agree and stipulate to the following facts: 1. On or about December 14, 1987, Davis Woods, Inc. filed a certified plat for the creation of the Davis Wood Subdivision (the “Subdivision”). 2. The certified plat was recorded at Vol. 10, Page 45 of the Plat Records of Polk County, Texas, a copy of which is attached hereto and incorporated by reference herein as Exhibit “1”[.] 3. On or about December 14, 1987, the Developer, Davis Woods, Inc., filed Restrictive Covenants, Reservations and Provisions for Assessments of Davis Woods Subdivision which were recorded at Vol. 644, Page 631, Instrument 146245 of the Official Public 3 Records of Polk County, Texas, (the “Restrictive Covenants”) a copy of which is attached hereto and incorporated by reference herein as Exhibit “2”. 4. The Restrictive Covenants specifically provide the following, as depicted in the image below: OTHER PROVISIONS (1) All restrictions, reservations and covenants shall be binding upon the purchaser of any lot or lots in the subdivision, as well as the successors, heirs and assigns of any such purchaser, developer or any of its successors or assigns, or any purchaser or the successors, heirs and assigns of the purchaser, shall violate or attempt to violate any of the covenants herein, it shall be lawful for the Architectural Committee, or any other person, or persons, or entity owning any lot or lots situated in said subdivision, to prosecute any proceeding at law or in equity, against the person or persons violating or attempting to violate any such covenant and either to prevent, enjoin or restrain him or them from so doing, or to recover damages or other dues for such violation. See Exhibit 2, pg. 6. 5. The Restrictive Covenants also prescribes the Following as to construction of fences in the Subdivision, depicted in the image below (hereafter, the “Fence Restriction”): (28) No fence may be erected nearer to the front property line than the rear of the dwelling house. Any such fence shall not exceed sixty inches (60”) in height and must be approved by the Architectural Committee. The term “fence”, as used herein, shall not be construed to be a patio wind screen, or a growing hedge trimmed to forty-eight inches (48”) or less in height. See Exhibit 2, pg. 5. 4 6. On or about May 20, 2021, the Watsons purchased real property consisting of land and improvements located in the Subdivision and commonly known as [street address], Livingston, Texas 77351 (the “Property”) pursuant to the deed recorded in Volume 2338, Page 459 of the Official Public Records of the Polk County Clerk, a copy of which is attached hereto as Exhibit “3”. 7. At the time of said purchase, the Property comprised both land and improvements which included a single-family residence with an existing fence (“Original Fence”) as depicted in the image below and attached hereto as Exhibit “4”. 5 6 8. After purchasing the property, the Watsons constructed a new fence (“New Fence”) extending the existing border created by the Original Fence between the Property and the adjacent parcel to the east, as depicted in the image above. See Exhibit 4 and Exhibit 1. 9. As constructed, New Fence does not comply with the Fence Restriction only in so far as it was erected nearer to the front property line than the rear of the dwelling house. 10.Except as to its specific location, the Committee seeks no other remedy related to the fence and makes no other allegation that construction of the New Fence violates or fails to comply with the Fence Restriction (e.g., the fence height, fence material, construction without Committee approval, etc.) or in any other requirement set forth in the Restrictive Covenants and seeks no other remedy regarding the Watsons’ construction of the New Fence other then (sic) in connection with the disputed issues identified in Article II herein. 11.Defendant Lacey Watson is a U.S. veteran and since 2015, has been determined 100% total and permanent disability by the U.S. Department of Veterans Affairs and Social Security Administration pursuant to which, she receives benefits and services to assist with activities of daily living. See Confidential Records from Social Security Administration and the U.S. Department of Veteran Affairs, attached hereto and incorporated by reference as Exhibit “5”. 12.Since 2019, Lacey Watson’s primary care provider has prescribed the use of a service dog to assist with her physical mobility and emotional and mental health; and since that time, Mrs. Watson has utilized the assistance of a service dog in-training in accordance with her treatment plan. 13.The Watsons contend that because the enclosure created by the Original Fence includes an existing pool, the Watsons constructed the New Fence in part, to create an adjacent enclosure to provide added security for the Watsons’ pool, A/C and water controls as well as to provide for a safe and secure area for training of Mrs. Watson’s service dog. 7 14.Thereafter, the Committee, which is comprised of multiple, individual homeowners in the Davis Woods Subdivision and identified in the attached Exhibit “6”, retained legal counsel to send a letter to the Watsons dated January 26, 2022 (“Notice”) advising that such newly constructed fence violated the terms of the Restrictive Covenants and demanding immediate removal of the same. A copy of the Notice is attached hereto and incorporated by reference as Exhibit “7”. 15.On May 3, 2022, the Watsons, through legal counsel, sent a letter in response to the Committee’s Notice (Watsons’ “Response”), a copy of which is attached hereto and incorporated by reference as Exhibit “8”. 16.The Committee does not object to the Watsons’ existence of a fence but contends the location of the New Fence violates the Fence Restriction. 17.The Committee eventually filed the present suit alleging claims for breach of the Restrictive Covenants and seek declaratory judgment, injunctive relief, damages, attorney fees and court costs. 18.The Watsons have filed various affirmative defenses and counterclaims as to the Fence Restriction including that Committee’s enforcement of the same as against the Watsons’ Property is prohibited by or in violation of § 202.023 of the TEXAS PROPERTY CODE and the U.S. Fair Housing Act and Texas Fair Housing Act and for which, the Watsons seek declaratory judgment, injunctive relief, damages, attorney fees and court costs. 19.The Committee denies the counterclaims and affirmative defenses of the Watsons. 8 II. ISSUES IN DISPUTE The Parties hereby agree and stipulate that the following issues are in dispute requiring a determination by the trier of fact: A. Whether Texas Property Code § 202.023 limits or prohibits the Committee, property owners association, or owner of property within the Subdivision from adopting or enforcing the Fence Restriction against the Watsons as to the New Fence. B. Whether the U.S. Fair Housing Act and Texas Fair Housing Act limits or prohibits the Committee, property owners association, or owner of property within the Subdivision from enforcing the Fence Restriction against the Watsons as to the New Fence. C. Whether the Committee is entitled to declaratory judgment, injunction and attorney’s fees and costs against the Watsons. D. Whether the Watsons are entitled to declaratory judgment, injunction and attorney’s fees and costs against the Committee, individual members of the Committee and any owners of property in the Subdivision on whose behalf, this Lawsuit was filed. The document recites that the stipulations were made pursuant to Rule 11 of the Texas Rules of Civil Procedure, was signed by counsel for both the Watsons and the Committee and was filed with the court. Steven Paul Watson’s Testimony Paul testified that he and his wife, Lacey, were living in Colorado in the spring of 2021, when they decided to move to Texas. They looked at several properties and chose the Davis-Woods house after visiting it. The Watsons chose the house partly 9 because of the flat area on the side of the house, which would be a good place to train Maizee, Lacey’s service dog. The back yard, in contrast, “has a mound that comes up.” According to Paul, the flat ground was a safety issue for both the disabled person and the dog. The Watsons also chose the house “because most of everything was on the ground floor of this house[,]” and because there was a pool, features which were important due to Lacey’s mobility issues. They also considered it important that there was no homeowners association. Paul stated, “[i]f I would’ve known there was a deed restriction or restriction of any kind on this property, we would’ve never bought this house.” After Paul testified that he did not understand the import of deed restrictions in the absence of a homeowners association, the trial court stated, “I’ll make a finding that there were deed restrictions on this property and he’s bound by them.” After buying the house, the Watsons did not remove the previous fence but included it within their new fence, which they extended along the property line before joining it at an angle to the front corner of the house. They did so to fence an area to train the dog and also because they were concerned about theft of air conditioning units, which the Watsons had just replaced at a cost of $24,000. Before building the fence, Paul spoke with his neighbors to apologize for the noise it would make. These contacts included his next-door neighbor Sutton, who helped Paul locate the property line. After fence construction began, Laurie Ann Scott told Paul 10 that she was “the representative of the HOA” and that she would provide him a copy of the deed restriction. Scott provided that documentation about three days later, as did William Avery, a neighbor of the Watsons, and Paul sent his realtor a copy of it. The realtor, in Tyler, told him that “if there was a deed restriction, [she was not] told about it, and that’s the title company’s hit[.]” These events took place in late June 2021. Lacey Marie Watson’s Testimony Lacey testified that she was a retired staff sergeant. She had her service dog, a German shepherd, for her PTSD and mobility issues, and she testified that she had the dog since 2019. When the Watsons moved to the property in 2021, Maizee’s training had been interrupted by the COVID pandemic and therefore was not complete. According to Lacey, “it can take up to two years or more in order to be able to get a service dog[,]” so Lacey decided to train Maizee herself. Lacey explained that she needed a flat fenced area to train, and that she could not use the “very hilly[]” back yard or the unfenced front yard in case Maizee decided to misbehave. Lacey further explained that having a fence on that side of the house helped her feel safe, since that wall has no windows to enable her to “see what’s going on over there.” In addition, Lacey confirmed Paul’s testimony about wanting to secure the “very expensive AC condensers that we’ve recently replaced[.]” Lacey testified that if she had known of the deed restrictions or that Scott and others 11 correctly represented their power to veto the Watsons’ fence extension, she would have discussed the proposed location with her neighbors because that would be “the courteous thing to do.” Sally Ann McClain’s Testimony Sally Ann McClain (“McClain”) testified that although she lived in the Davis- Woods Subdivision for about four years, her mother, Anita Knouse, and her grandmother built some of the first houses in the subdivision about thirty-five years earlier. When McClain moved into the subdivision, she knew of the deed restrictions because they were “part of the information that [she] knew when [she] signed for the house.” McClain recalled that she “was elected to be one of the members of the Architectural Control Committee at a homeowner’s meeting. And the purpose of that committee was to enforce or uphold our deed restrictions and covenants, and we also did beautification.” According to McClain, there had been an Architectural Committee “since the beginning of the subdivision.” As a member of the Committee, McClain and the other Committee members “reviewed requests from people when they wanted to make an adjustment to their property that fell under the restrictions, and we also considered when people abused them.” McClain testified that there were benefits to the restrictions, in that “the subdivision was created to create a very open feeling. And so the property values are based upon the aesthetics and the – just the openness of the lots.” McClain stated that property values decrease if the restrictions 12 are not enforced. Specifically, McClain stated that the Watsons’ fence devalued her own property because it detracted from the aesthetics of the community, since all the other houses in the subdivision “are opened from the back corner of the houses to the street.” When homeowners do not comply with the restrictions, the Committee initially responds by requesting compliance. In this instance, the then current Committee members, McClain, Scott, and Carol Henry, “walked door to door asking people if they would support our efforts to try to uphold the deed restrictions.” McClain testified that according to the deed restrictions, the individual property owners can sue to enforce the deed restrictions, and the Committee can act on behalf of the members, despite there being no homeowners association. In fact, McClain agreed that all the members of the Committee owned homes in the Davis-Woods Subdivision and that the Committee sued the Watsons on behalf of several of the other homeowners. After learning of the Watsons’ fence extension, the Committee met, reviewed the restrictions, and “knew that . . . it was not in compliance.” McClain testified that the Watsons stated that they wanted the additional fenced area so that the dog could go out and not be near the pool, but there was space in the back yard for the dog to use. 13 In the effort to obtain the Watsons’ compliance with the restrictions, the Committee sent them a letter but received no response. The Committee then “had to pursue action or [they] were not doing [their] job.” McClain described the procedure for asking the Committee for an exception, stating that the requests are supposed to be written, and that there is a formal process for taking requests to the Committee, but neither that process nor the Committee’s procedures are set out in the restrictive covenants. McClain then stated that the Committee follows the procedures that the restrictive covenants require. Although McClain heard about section 202.023 of the Property Code from a family friend, she did not believe that the Watsons’ fence was a necessary security precaution because there were no windows on the wall inside the extended fence. As McClain phrased it, “a wooden fence would not give more security than a brick wall.” William Avery’s Testimony William Avery (“Avery”) testified that he had lived in the Davis-Woods Subdivision since 2017 but had never served on the Committee. Avery recalled being aware of the restrictive covenants since he purchased a house lot in 2011. In Avery’s opinion, it was important to enforce the covenants because doing so “maintain[ed] the value of property much better and makes the things in the 14 subdivision a lot cleaner, more organized, and it helps you just maintain your – your value of your house and property much easier.” Avery recalled noticing that the Watsons had cleaned vines and brush from the fence, but at the time, he believed that the Watsons were planning to replace their existing fence. Avery later visited the Watsons after the posts were installed but before the fence was completed. At that time, Avery advised the Watsons that the location of the proposed fence violated the covenants, since it was “in front of the back line of the house.” The Watsons indicated that they were unaware of the covenants because their realtor had told them that the subdivision had no homeowners’ association and also stated that the restrictions would expire in ten years. The Watsons mentioned “putting a dog in” the fence, to which Avery replied that they could put a dog in their back yard and need not violate the restrictions in building the fence. Avery also recalled telling the Watsons that they should speak to the seller, Malcolm Jones, since Jones was a local attorney who would “know to make [deed restrictions] known to whoever was purchasing it.” Avery continued, stating, “a seller usually has to make any restrictions known to the purchaser. And you sign a copy of it when you make the transaction.” Avery agreed that restrictions would be found in the seller’s disclosure or other closing paperwork but testified that the subdivision had no homeowners’ association. 15 Upon returning home after speaking with the Watsons, Avery called Carol Henry, who was a member of the Committee, and told her that the Watsons were building a fence that was forward of the back of their house. Sometime later, Avery received a notice of a property owners’ meeting at McClain’s home. Avery and about a dozen other property owners attended the meeting, where the Watsons’ fence was discussed. When asked to describe the process for obtaining Committee approval, Avery gave his own example of needing to obtain permission to remove trees on his property to add fill dirt to his lot where he built his house. In that instance, Avery went to Jim Miller’s house when Miller was on the Committee, told Miller what he needed, and Miller replied that he would “have to get with the other Committee members and let us decide and we’ll let you know.” The Committee later sent Avery a letter reminding him that he was required to have a minimum number of trees on his property when the work was completed. Johnny Sutton’s Testimony Johnny Sutton (“Sutton”) testified that he lived in the subdivision since 1989 and that his house was “just to the east of” the Watsons’ house. Sutton was aware of the deed restrictions because he was provided a copy of the restrictions when he closed on his property and because he worked for the developer’s family. Sutton believed that these restrictions were imposed “to maintain a certain look in the 16 neighborhood . . . to try to keep anything from going adverse and bringing the property values down.” Shortly after the Watsons purchased their property, Paul introduced himself to Sutton and explained that he wanted to extend the existing fence toward the street, whereupon Sutton advised Paul that there were deed restrictions covering the fence location. Paul then replied that he had not seen the restrictions, and Sutton responded that the restrictions were available at the county clerk’s office, and Paul could research them at that location. Since Sutton formerly ran a surveying crew, he was able to help Paul locate the property line for proper fence placement. Sutton recalled his understanding of the purpose of the fence, stating: [SUTTON]: As I recall, and I’m a pretty old guy now, but [Paul] mentioned that his wife had trained service dogs or something like that in the military, and they were both about to retire, but she had a dog she was working with, I think – she had a dog that she was training. And for her to train this dog, they needed a separate area different from the rest of the backyard. And this little area, she was going to utilize that to train a dog that she was working with. That’s the way I remember it. [DEFENSE COUNSEL]: And did you know, or were you aware at the time during this conversation, that Mrs. Watson was a disabled vet? [SUTTON]: No. No, sir. I did not. [DEFENSE COUNSEL]: Okay. So, in terms of the conversation being about training of a service dog, did you understand that it was a service dog that Mrs. Watson was using? 17 [SUTTON]: I don’t know. She – I thought she was doing the training, but I don’t know for who or what, who the dog belonged to. Sutton also recalled hearing that neighborhood residents had discussed the Watsons’ fence and whether the fence violated the restrictions. In addition, Sutton remembered being told that “the Committee was taking a look at it[,]” and that the Committee sued the Watsons because “the fence that he reconstructed was in violation of the deed restrictions.” Anita Knouse’s Testimony Anita Knouse (“Knouse”) testified that she had lived in the Davis-Woods Subdivision since the subdivision began, in 1989. Knouse acknowledged that she had never met the Watsons but was concerned about the restrictions in the subdivision because she wanted to protect the investment that she and her husband had made in their home. Knouse believed that if the restrictions were not enforced, it would be detrimental to her property, since “the aesthetic feeling around our homes[] would deteriorate,” as would her house value. Gail Colburn’s Testimony Gail Colburn (“Colburn”) testified that she built her house in the Davis- Woods Subdivision and moved into it in 1998. Colburn recalled being aware of the restrictions since moving into the subdivision, because her husband had worked for the developer. Colburn testified that these restrictions were “very important[]” to her, since the restrictions meant that the subdivision would be “nicely maintained.” 18 Colburn believed that “if deed restrictions [were] not followed, then anything else could happen.” Todd Summy’s Testimony Todd Summy (“Summy”) testified that he moved to the Davis-Woods Subdivision about two years earlier. When Summy and his wife were choosing a new home, they sought “a community that we knew would be consistent in the appearances of the home sites.” Summy had previously lived in subdivisions where some houses were well kept but others were not, and so he “just wanted someplace that was nice.” Summy was attracted to the Davis-Woods Subdivision because of its deed restrictions, of which Summy was aware because a former subdivision resident, Malcolm Jones, was a “very good friend” of Summy’s. According to Summy, Jones wrote the restrictions. Summy also recalled that Jones described to him the following procedure for working with the Committee. When Summy wanted to build a fence after buying his home, he “called the Architectural Committee, had them come over and take a look at it, and they did.” Summy showed the Committee his drawing of his proposed fence as well as its proposed location, and the Committee told him “you’re good to go.” When Summy completed his fence, the Committee approved it. Summy could not address the procedure Avery described, because he was not present when Avery’s request to the Committee took place. 19 Summy also recalled an instance when a property owner built his fence “six [or] seven inches too tall[,]” and the Committee told the owner that he would need to reduce the fence height to comply with the restrictions. At that time, Summy was a member of the Committee, and told the property owner: if you read all the rules, you would’ve known it says to ask us to come take a look with you so that we can go over it, and go over your project, and you’re supposed to submit one, a drawing to the Architectural Committee, and then we approve it in writing, we sign it, and we give it back to you and you build it. When you’re done, you call us, we come back and inspect it, make sure it was built as planned. Documentary Evidence The record contains the following exhibits: Plaintiff’s Exhibits: 1. Plat of Subdivision 2. 1987 Restrictive Covenant 3. through 9. Deeds and Affidavit 10. Title Policy 11. Photographs 12. Letter to the Watsons from the Architectural Committee 13. Letter to Watsons from Plaintiff’s Attorney 14. Plaintiff’s Counsel’s Attorney’s Fees Defendants’ Exhibits: 1. December 14, 1987 Plat for the Davis-Woods Subdivision 2. December 14, 1987 Restrictive Covenants of the Davis-Woods Subdivision 3. May 20, 2021 General Warranty Deed Conveying Property to Watsons 4. Photograph Showing Old and New Fence Lines 5. Disability Documentation Regarding Lacey Watson 6. List of Committee Members and Represented Property Owners 20 7. January 26, 2022 Letter from Plaintiff’s Counsel to the Watsons 8. The Watsons’ Response to Plaintiff’s Counsel 9. Plaintiff’s First Supplemental Initial Disclosure 10. Defendants’ Counsel’s Attorney’s Fees Trial Court’s Findings of Fact and Conclusions of Law The trial court signed the following applicable Findings of Fact and Conclusions of Law on June 25, 2024. FINDINGS OF FACT 1. On or about December 14, 1987, Davis Woods, Inc., (the “Developer”), filed a certified plat for the creation of the Davis- Woods Subdivision (the “Subdivision”). [] 2. The certified Plat of the Davis-Woods Subdivision was recorded at Vol. 10, Page 45 of the Plat Records of Polk County, Texas. [] 3. On or about December 14, 1987, the Developer, David Woods, Inc., filed “Restrictive Covenants, Reservations and Provisions for Assessments of David-Woods”, (the “Restrictive Covenants”), for the Subdivision which were recorded at Vol. 644, Page 631, et seq, Instrument 146245 of the Official Public Records of Polk County, Texas. [] 4. The Restrictive Covenants, under “OTHER PROVISIONS”, [Vol. 644, page 636, first paragraph], specifically provide the following: (1) All restrictions, reservations and covenants shall be binding upon the purchaser of any lot or lots in the subdivision, as well as the successors, heirs and assigns of any such purchaser. If developer or any of its successors or assigns, or any purchaser or the successors, heirs and assigns of the purchase, shall violate or attempt to violate any of the covenants herein, it shall be lawful for the Architectural Committee, or any other persons, or persons, or entity owning any lot or lots situated in said 21 subdivision, to prosecute any proceeding at law or in equity, against the person or persons violating or attempting to violate any such covenant and either to prevent, enjoin or restrain him or them from so doing, or to recover damages or other dues for such violation. [] 5. The Restrictive Covenants, under “OTHER PROVISIONS”, [Vol. 644, Page 635, third paragraph] specifically provide the following: (3) In the event that there is any doubt or ambiguity as to the intent, intendement [sic], or meaning of any covenant, assessment, restriction, stipulation or reservation contained herein or any portion hereof, all doubts shall be resolved in favor of upholding the broadest construction of said covenant, assessment, reservation, restriction or stipulation or any portion thereof. [] 6. The Restrictive Covenants, under “COMMITTEE”, [Vol. 644, pages 635-636, fourth paragraph] provides for the creation of the “DAVIS WOODS SUBDIVISION ARCHITECTURAL COMMITTEE, (“Committee”), which Committee shall initially be composed of not less than three (3) persons.” This section of the Restrictive Covenants provides for the initial three (3) committee members and their successors. The Restrictive Covenants further provides: There is hereby created the DAVIS WOODS SUBDIVISION ARCHITECTURAL COMMITTEE, which Committee shall initially be composed of not less than three (3) persons. The Committee shall be composed initially of the developer and two (2) additional members to be appointed by the developer and said developer shall have the sole exclusive authority each year to appoint new or additional members of the committee as it deems necessary until all of the lots in said subdivision are sold. Within ninety (90) days after the developer has sold all of the lots in said subdivision, or sooner if the developer so desires, the committee shall call a meeting of all lot owners to elect a new Architectural Committee, which new committee shall be composed of elected lot owners, and similar elections shall be held each year thereafter. A vacancy on the committee, resulting from the death or resignation 22 of any member of the committee or from the refusal or inability of any member to serve, may be filled by appointment by the developer, or any successor of the developer, or by any person or entitled designated for such purposes by the developer. Written notice of each meeting called to elect a new committee after the sale of all lots within the subdivision, or sooner if the developer so elects, shall be mailed to each lot owner at the last known address of such lot owner according to the records of the Architectural Committee at least ten (10) days before the date of the meeting. At each election, the owner, or owners, of each lot shall be entitled to one vote. Votes may be cast in person or by the holders of property properly executed proxies. The owner, or owners, of more than one lot shall only be entitled to only one vote. The committee shall function as representatives of all of the property owners in the subdivision, and shall be authorized to enforce by any appropriate proceedings the foregoing restrictions; enforce or release any lien imposed on any lot by reason of a violation of any of the foregoing restrictions; and approve or reject plans and specifications for buildings to be erected in said subdivision; and approve or reject any reasonable request of lot owners. [] 7. The Restrictive Covenants, Restriction (2), [Vol. 644, page 632], prescribes, in relevant part, the following as to enforcement of the Restrictive Covenants: (2) If any lot owner . . . should violate, or attempt to violate, any of the covenants herein . . . any . . . persons owning any real property situated in said subdivision, shall have the right to prosecute by any proceeding at law or equity against the person or persons violating or attempting to violate such restrictions, and either to prevent it, him, her or them from doing, or to recover damages for, such violation. In such event of any violation, or threat of violation of any of the covenants herein . . . any owner of any lot in the subdivision may bring action at law or in equity, either for injunction, action for damages or such other remedy as may be available. In the event that . . . any lot owner recovers judgment against any person for violation or threat of violation of any of the covenants herein, the developer or any lot owner shall be entitled to recover from 23 such person reasonable attorneys fees. The failure of any lot owner . . . to enforce any restrictions, conditions, covenants or agreement herein shall in no event be deemed a waiver of the right to do so thereafter as to the same breach or as to one occurring prior or subsequent thereto, not shall such failure give rise to any claim or cause of action against the developer or such lot owner. [] 8. The Restrictive Covenants, Restriction (28), [Vol. 644, page 635], prescribes the following as to construction of fences in the Subdivision (hereafter, the “Fence Restriction”): (28) No fence may be erected nearer to the front property line than the rear of the dwelling house. Any such fence shall not exceed sixty (60”) in height and must be approved by the Architectural Committee. The term “fence”, as used herein, shall not be construed to be a patio wind screen, or a growing hedge trimmed to forty-eight (48”) or less in height. [] (Emphasis added). 9. The Restrictive Covenants do not create mandatory assessments nor mandatory membership in the Committee. 10. On February 29, 1997, Davis Woods, Inc., the Developer, conveyed to Robert M. Snowberger and wife, Cori B. Snowberger, Lot 12, Block 2 (the “Property”) in the Davis Woods Subdivision, by General Warranty Deed filed March 3, 1997 at Vol. 97-1045-337, et seq., in the Official Records of Pol County, Texas. The deed made specific reference to the existence of deed restrictions: “This conveyance is made and accepted expressly subject to (1) the restrictive covenants for the Davis Woods Subdivision, as recorded at Volume 644. Page 631 et seq of the Official Records of Polk County, Texas . . .”. [] .... 14. On June 13, 2007, ADCO International, Inc., sold to R. Malcolm Jones, the Property in the Davis Woods Subdivision, by Special Warranty Deed with Vendor’s Lien Retained, filed June 14, 2007, at Vol. 2007-1584-674, et seq., in the Official Records of Polk County, Texas. The deed made specific reference to the existence of deed restrictions under “Reservations from and Exceptions to 24 Conveyance and Warranty: Exceptions: . . . (3) All presently recorded restrictive covenants . . .”. [] 15. On July 31, 2009, R. Malcolm Jones, conveyed to R. Malcolm Jones, as Trustee of the R. Malcolm Jones Living Trust. The Poperty [sic] in the Davis Wroods [sic] Subdivision, by General Warranty Deed, filed August 18, 2009, at Vol. 2009-1712-159, et seq., in the Official Records of Polk County, Texas. The deed made specific reference to the existence of deed restrictions under “Reservations from and Exceptions to Conveyance and Warranty: Exceptions: . . . (3) All presently recorded restrictive covenants . . .”. [] 16. On May 20, 2021, R. Malcolm Jones, Individually joined pro forma by his wife, Rebekah F. Flores Jones, and R. Malcolm Jones, as sole