Full Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-24-00592-CV Davis Spring Property Owners’ Association, Inc. and Amanda Mock, Appellants v. Masha Davis, Appellee FROM THE 395TH DISTRICT COURT OF WILLIAMSON COUNTY NO. 21-0135-C395, THE HONORABLE RYAN D. LARSON, JUDGE PRESIDING MEMORANDUM OPINION Appellants Davis Spring Property Owners’ Association, Inc. (the Association) and Amanda Mock, the President of the Association’s Board of Directors (collectively, the POA), appeal the district court’s order awarding attorney’s fees to appellee Masha Davis, who filed suit against the POA after it denied her application to construct an accessory structure in the backyard of her property. 1 In two issues on appeal, which we have rephrased for clarity, the POA asserts that the district court (1) erred in concluding as a matter of law that Davis was entitled to attorney’s fees under Section 5.006 of the Texas Property Code; and (2) abused its discretion in awarding Davis her attorney’s fees because she failed to segregate her fees. We will affirm the district court’s order. 1 In her application, Davis described the structure as a “home office,” while the POA has referred to it throughout the litigation as a “shed” or a “shed-like structure.” BACKGROUND Davis is a property owner and resident in the Davis Spring Subdivision community. The lots in the community are subject to restrictive covenants in a Master Declaration of Covenants, Conditions and Restrictions (the Declaration). The Declaration establishes the Association as the property owners’ association for the Community. The Association has an Architectural Review Committee (the “ARC”) authorized to approve or deny construction applications for improvements on all lots in the Community. According to the terms of the Declaration, the ARC has the authority to “disapprove any proposed Improvements based on the restrictions set forth in the Design Guidelines” for the Community. In 2020, Davis, a former member of the Board of Directors of the Association, submitted a construction application to the ARC for the construction of an accessory structure in the backyard of her property. The ARC denied her application for the following reason: “Even though it is not used from inside as a shed, for external purposes it is an [sic] separate housing structure on the property which is taller than stipulated and goes above the roof line.” Following the denial of her application, Davis sued the POA for, among other things, violating the Declaration. According to Davis, there is no height restriction on accessory structures in the Declaration or Design Guidelines, and therefore the ARC had no authority to deny her application. Davis’s claims included breach of fiduciary duty for “arbitrarily and capriciously enforcing the restrictive covenants,” violations of the Federal and Texas Fair Housing Acts, and multiple claims for declaratory relief. Davis filed a motion for partial summary judgment on some of her claims for declaratory relief, and the district court granted the motion and made the following declarations: 2 (1) The 2002 Design Guidelines . . . were the only design guidelines filed of record at the time of Plaintiff’s Application; (2) The 2002 Design Guidelines did not contain any height restriction that would prohibit the construction of Plaintiff’s accessory structure; (3) The ARC’s denial of Plaintiff’s Application did not provide any basis found in the 2002 Design Guidelines; (4) Without such a basis, the ARC had no authority to deny Plaintiff’s Application based upon any height restriction and such denial was ineffective. The POA later filed a motion for traditional and no-evidence summary judgment, which the district court granted in part and denied in part. The district court dismissed Davis’s claims against the Association and Mock for breach of fiduciary duty and her claims against the Association for violations of the Federal and Texas Fair Housing Acts. The district court denied the motion as to Davis’s remaining claims for declaratory relief. The POA later filed a second motion for summary judgment, which the district court denied. Davis later filed a second motion for partial summary judgment on one of her remaining claims for declaratory relief. In this motion, Davis also sought entitlement to attorney’s fees under Section 5.006 of the Texas Property Code. The POA did not address Davis’s entitlement to attorney’s fees in its response to her motion. The district court granted Davis’s motion, and ordered the following: It is declared that there are no restrictive covenants prohibiting Plaintiff from constructing her accessory structure as submitted to the Association in Plaintiff’s ARC Application. 3 Plaintiff shall be awarded her reasonable and necessary attorney’s fees, as required under Tex. Prop. Code Ann. § 5.006, in an amount to be determined by this Court at a later date. The district court later granted Davis a partial nonsuit without prejudice on her remaining claims. The case proceeded to a hearing on attorney’s fees, at which Davis’s counsel testified to the fees incurred in the case and provided detailed copies of his firm’s billing records documenting those fees. Counsel testified that he was a partner at the law firm of Savrick, Schumann, Johnson, McGarr, Kaminski & Shirley; that since 2008, his practice has focused on civil litigation and real estate and HOA litigation; and that he has represented clients throughout the state of Texas in both state and federal courts. He explained that his firm was retained by Davis “to enforce her rights under restrictive covenants of the Davis Spring Community, managed by the defendant, Davis Spring Property Owners’ Association, Inc.” and that he was “familiar with the pre-suit communications of the parties, the subsequent suit, the pleadings filed, the discovery disputes, the documents produced, the investigations undertaken, the multiple motions and hearings on the same,” and a failed attempt at mediation. Counsel further testified that his firm “charged the hourly rate, my partners and I, of 450 an hour, which is a prevailing rate for complex civil litigation in real estate both in Williamson County and Travis County and surrounding counties” and that they “billed for the work of the legal assistants at the hourly rate of 225 an hour, which is the prevailing rate for legal assistants in Williamson County, Travis County, and surrounding counties who have the requisite amount of experience in the area of complex real estate litigation.” Counsel continued, 4 Given the work involved in this case and the litigation, attorneys spent approximately 300 hours and legal assistants spent approximately 37 hours for the performance of services from August [2020] through the date of this affidavit, a total of over four years. All of the legal services provided were necessary for all of the claims in this suit and were so intertwined that segregation of fees is not required. Based on his testimony and the documentary evidence admitted, counsel asked for a total of $149,680.25 in attorney’s fees and additional amounts for contingent appellate fees. 2 On cross-examination, the POA asked Davis’s counsel if he had “made any attempt to segregate your attorney’s fees between the various causes of action filed by the plaintiff in this case.” Counsel testified, “I did attempt to do so months ago. Was unable to do so, given that the work on the restrictive covenant enforcement, the Fair Housing Act claim, the breach of fiduciary duty, and the declaratory relief sought were inextricably intertwined. So, no, I was not able to do so.” Counsel elaborated: I would just say that if the Court were to consider—I think the Court does recall this case. If I had to put a number on it, a percentage, the most I could say that was the work that was not restrictive covenant, solely enforcement, would be, at most, 5 to 10 percent. Beyond that, everything was done on the sole—the same matters. Every bit of motion, discovery, letters of conference—conferrals on motions to compel the discovery, all of those were inextricably intertwined with the restrictive covenants. So, at most, if I had to testify on that amount, it would be no more than 5 to 10 percent, Your Honor. 2 Specifically, Davis requested “$3,500 for a motion for new trial; should it be denied by this Court by operation of law”, “$35,000 to respond to any appeal to the Third Court of Appeals filed by the association to which the plaintiff is the prevailing party”; “$15,000 to respond to a petition for review to the Texas Supreme Court filed by the defendants”; and “$45,000 to respond to further briefing should the Supreme Court grant the petition for review in which the plaintiffs are the prevailing party.” 5 The POA presented no evidence controverting Davis’s evidence on attorney’s fees. Its sole argument as to why Davis was not entitled to attorney’s fees was that she had failed to segregate the fees. At the conclusion of the hearing, the district court awarded Davis $100,000 in attorney’s fees, approximately $50,000 less than the amount Davis had requested. The district court also awarded Davis contingent appellate attorney’s fees in the amounts requested by Davis. The POA did not request findings of fact and conclusions of law or file a motion for new trial. This appeal followed. STANDARD OF REVIEW Generally, we review a trial court’s award of attorney’s fees for abuse of discretion. Fort Worth Transp. Auth. v. Rodriguez, 547 S.W.3d 830, 850 (Tex. 2018); El Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 763 (Tex. 2012). A trial court abuses its discretion when it acts arbitrarily or unreasonably, or when it acts without reference to any guiding rules or principles. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990). However, “[t]he availability of attorney’s fees under a particular statute is a question of law for the court.” Holland v. Wal-Mart Stores, Inc., 1 S.W.3d 91, 94 (Tex. 1999) (per curiam). When reviewing a trial court’s award of attorney’s fees, appellate courts “must ensure the record contains sufficient evidence to support such an award.” Yowell v. Granite Operating Co., 620 S.W.3d 335, 354 (Tex. 2020) (citing Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 505 (Tex. 2019)). “The party seeking attorney’s fees bears the burden of proof and must supply enough facts to support the reasonableness of the amount awarded.” Id. However, we employ a “relaxed standard” when reviewing evidence regarding the segregation of attorney’s fees. Citizens Nat’l 6 Bank of Tex. v. NXS Constr., Inc., 387 S.W.3d 74, 88 (Tex. App.—Houston [14th Dist.] 2012, no pet.). Under such a standard, “segregated attorney’s fees can be established with evidence of unsegregated attorney’s fees and a rough percent of the amount attributable to the [recoverable] claim.” Flagship Hotel, Ltd. v. City of Galveston, 117 S.W.3d 552, 565 n.7 (Tex. App.— Texarkana 2003, pet. denied). DISCUSSION Entitlement to attorney’s fees under Section 5.006 In its first issue, the POA asserts that Davis was not entitled to attorney’s fees as a matter of law under Section 5.006 of the Texas Property Code. Section 5.006 provides, “In an action based on breach of a restrictive covenant pertaining to real property, the court shall allow to a prevailing party who asserted the action reasonable attorney’s fees in addition to the party’s costs and claim.” Tex. Prop. Code § 5.006(a). According to the POA, Davis did not allege and the district court did not find that the POA had breached a restrictive covenant. Therefore, in the POA’s view, the statute did not authorize an award of any attorney’s fees to Davis. The POA did not raise this argument at any point in the court below, either in its response to Davis’s motion for summary judgment seeking attorney’s fees, at the hearing on attorney’s fees, or in a motion for new trial. We conclude that the POA failed to preserve this issue for our review. See Tex. R. App. P. 33.1(a)(1); Enzo Invs., L.P. v. White, 468 S.W.3d 635, 651 (Tex. App.—Houston [14th Dist.] 2015, pet. denied); El-Khoury v. Kheir, 241 S.W.3d 82, 91 (Tex. App.—Houston [1st Dist.] 2007, pet. denied); Goodson v. Castellanos, 214 S.W.3d 741, 760-61 (Tex. App.—Austin 2007, pet. denied); City of Port Isabel v. Shiba, 976 S.W.2d 856, 860-61 (Tex. App.—Corpus Christi-Edington 1998, pet. denied); County of El Paso v. 7 Boy’s Concessions, Inc., 772 S.W.2d 291, 293 (Tex. App.—El Paso 1989, no pet.); see also D.R. Horton–Tex., Ltd. v. Markel Int’l Ins. Co., 300 S.W.3d 740, 743 (Tex. 2009) (“A non-movant must present its objections to a summary judgment motion expressly by written answer or other written response to the motion in the trial court or that objection is waived.”). We overrule the POA’s first issue. Segregation of fees In its second issue, the POA asserts that the district court abused its discretion in awarding Davis her attorney’s fees because Davis failed to segregate her fees. The POA’s argument in its brief on this issue, in its entirety, is the following: Even if Davis could show entitlement to attorneys’ fees, which she cannot, she failed to properly segregate her billing. This is especially important in a case such as this when two out of three causes of action were either dismissed pursuant to summary judgment or approximately 26 out of 27 requests for declaratory relief were non-suited by Davis. Davis failed to segregate her billing and therefore is unable to demonstrate which claims she was substantially successful on and is entitled to attorney’s fees. This is especially true when two out of three causes of action were dismissed on summary judgment, Davis named approximately 26 requests for declaratory judgment and was barely successful on maybe one and had all claims dismissed as to one of two defendants. Clearly, this does not evidence “substantially successful” as required by Tx. Prop. Code § 5.006 to be entitled to attorney’s fees. The POA fails to elaborate or provide authority on its contention that Davis was required to be “substantially successful” to avoid the need to segregate her fees and fails to explain how Davis’s evidence, including counsel’s testimony on the percentage of fees that could be segregated, was insufficient to support the amount of the award. The POA has inadequately briefed this issue. See Tex. R. App. P. 38.1(i). 8 Moreover, the record supports the fee award in this case. Although a fee claimant generally must segregate attorney’s fees that are recoverable from those that are not, an exception exists for when the fees are based on claims arising out of the same transaction that are so intertwined and inseparable as to make segregation impossible. Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 310, 313–14 (Tex. 2006). When discrete legal services advance both a recoverable and unrecoverable claim, they are sufficiently intertwined as to not require segregation. Id. Additionally, fee segregation does not require attorneys to keep separate records documenting the exact amount of time working on recoverable versus unrecoverable claims. Id. at 314. Instead, segregation is sufficiently established if the attorney testifies to the percentage of time spent on recoverable or unrecoverable claims. See id.; see also Stewart Title Guar. Co. v. Aiello, 941 S.W.2d 68, 73 (Tex. 1997) (evidence sufficient when attorney “testified that approximately twenty-five percent of his time and fifteen percent of his paralegal’s time concerned issues” that were not recoverable); Kubbernus v. ECAL Partners, Ltd., 574 S.W.3d 444, 490 (evidence sufficient when attorney testified that seventy percent of work was either directly related to recoverable claims, so intertwined with work for recoverable claims that “it [was] impossible to separate,” or would have been performed “regardless of the number of claims” brought); Alief Indep. Sch. Dist. v. Perry, 440 S.W.3d 228, 246 (Tex. App.—Houston [14th Dist.] 2013, pet. denied) (evidence sufficient when attorney testified that less than ten percent of time spent in case related solely to claims that were not recoverable). Here, Davis’s counsel testified to the fees incurred in the case and provided detailed copies of his firm’s billing records documenting those fees. He also testified that “[a]ll of the legal services provided were necessary for all of the claims in this suit and were so intertwined that segregation of fees is not required,” that he had attempted to segregate fees but 9 “[w]as unable to do so, given that the work on the restrictive covenant enforcement, the Fair Housing Act claim, the breach of fiduciary duty, and the declaratory relief sought were inextricably intertwined,” and that “[e]very bit of motion, discovery, letters of conference— conferrals on motions to compel the discovery, all of those were inextricably intertwined with the restrictive covenants.” Counsel further testified that approximately “5 to 10 percent” of the work in the case was not based on the restrictive-covenant issue. Using the “relaxed standard” for evaluating segregation of fees, see State Farm Lloyds v. Hanson, 500 S.W.3d 84, 104–05 (Tex. App.—Houston [14th Dist.] 2016, pet. denied), we conclude that this evidence is sufficient to support the district court’s award of attorney’s fees to Davis in the amount of $100,000, which was approximately $50,000 and 33% less than the amount that Davis had requested. Moreover, the POA failed to request findings of fact and conclusions of law in the court below. Thus, we are to imply that the district court made all the necessary findings in support of its judgment, see Worford, 801 S.W.2d at 109, including a finding that the unrecoverable amount of attorney’s fees in this case was approximately $50,000 and that the remaining amount requested by Davis could not be segregated, see Fortenberry v. Cavanaugh, No. 03-07-00310-CV, 2008 WL 4997568, at *13 (Tex. App.—Austin Nov. 26, 2008, pet. denied) (mem. op.). The district court had sufficient evidence before it, including the testimony of Davis’s counsel and the billing records that were admitted into evidence, to support that finding. The district court presided over the proceedings and was in the best position to evaluate the nature and complexity of the case, the extent to which the issues were “inextricably intertwined” with each other, the amount of time and effort required for counsel to advance those intertwined claims, and the expertise of counsel in arriving at a reasonable amount of recoverable attorney’s fees. See El Apple I, Ltd., 370 S.W.3d at 763-64 (observing that reviewing courts 10 “generally accord considerable deference to a trial court’s findings regarding whether prevailing counsel’s claimed hours are excessive, redundant, or unreasonable” because “[t]he trial court possesses a superior understanding of the case and the factual matters involved”); In re S.V., 599 S.W.3d 25, 35 (Tex. App.—Dallas 2017, pet. denied) (explaining that trial court considers such factors as “the time spent by the attorney on the case, the nature of the attorney’s case preparation, the complexity of the case, the experience of the attorney, and the prevailing hourly rates” and that “[t]he trial court may also consider the entire record and the common knowledge of the participants as lawyers and judges in making its determination”). Applying the required level of deference to the district court’s decision, we cannot conclude on this record that the district court abused its discretion in the amount of its award of attorney’s fees to Davis. We overrule the POA’s second issue. CONCLUSION We affirm the district court’s order awarding attorney’s fees to Davis. __________________________________________ Gisela D. Triana, Justice Before Justices Triana, Theofanis, and Crump Affirmed Filed: September 29, 2026 11