Full Opinion (html_with_citations)

                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-17-00136-CV


FRANK REED AND KAREN REED                                    APPELLANTS

                                     V.

LAKE COUNTRY PROPERTY                                           APPELLEE
OWNERS ASSOCIATION, INC.

                                  ----------

         FROM COUNTY COURT AT LAW NO. 3 OF TARRANT COUNTY
                   TRIAL COURT NO. 2013-004939-3



                                  ----------

                       MEMORANDUM OPINION1

                                  ----------

     Appellants Frank and Karen Reed appeal from the trial court’s order

granting summary judgment in favor of appellee Lake Country Property Owners

Association, Inc. (LCPOA), permanently enjoining the Reeds from parking or

storing a recreational camper on their property. As is common in summary-
     1
      See Tex. R. App. P. 47.4.
judgment appeals, the established standard of review dictates our conclusion.

Accordingly, because the Reeds do not argue that LCPOA failed to conclusively

establish each essential element of its claim and because the Reeds wholly

failed to raise an issue of fact on each element of their pleaded affirmative

defenses through competent summary-judgment evidence, we affirm the trial

court’s summary judgment.

                                I. BACKGROUND

      This is not the first time we have considered the fractious relationship

between the Reeds and their homeowners’ association—LCPOA. Previously,

LCPOA sought to enforce deed restrictions, which (1) were restrictive covenants

running with the properties in Lake Country Estates and (2) prohibited property

owners from parking “trailer[s], house car[s] or other moveable structure[s]” on

“any lot” and from storing “boats, boat trailers or recreational campers . . . on the

premises” in plain view of the streets fronting their residences. Reed v. Lake

Country Prop. Owners Assoc., Inc., No. 02-14-00282-CV,
2016 WL 3655589
, at

*1 (Tex. App.—Fort Worth July 7, 2016, no pet.) (mem. op.) (Reed I); see also
Tex. Prop. Code Ann. § 202.001
(4) (West 2014) (defining restrictive covenant).

In response to LCPOA’s efforts, the Reeds and other property owners in Lake

Country Estates filed suit against LCPOA, seeking a declaration that LCPOA

either was not authorized to enforce or was estopped from enforcing the

restrictive covenants. See Burkett v. Lake Country Prop. Owners Ass’n, Inc.,

No. 02-13-00090-CV,
2014 WL 1510137
, at *1 (Tex. App.—Fort Worth Apr. 17,

                                         2
2014, no pet.) (mem. op.). The trial court granted summary judgment in favor of

LCPOA, which we affirmed.
Id.

      On August 13, 2013, before we issued Burkett, LCPOA filed suit against

the Reeds to enforce the restrictive covenant, seeking to permanently enjoin

them from parking an enclosed utility trailer on their property and from storing a

Sandpiper camper in view of the street fronting their home. Reed I,
2016 WL 3655589
, at *2. In June of 2014 shortly after we issued our Burkett opinion, the

Reeds stopped parking the Sandpiper camper on their property. LCPOA sought

summary judgment on their claims, which the trial court granted on August 7,

2014, and enjoined the Reeds from violating the deed restriction regarding

parking or storing trailers or campers.
Id.
 On October 7, 2014, the Reeds began

to park a Cedar Crest recreational camper on their property in view of the street.

On July 7, 2016, we affirmed the summary judgment and permanent injunction

regarding the trailer but we reversed regarding the Sandpiper camper because

the Reeds had raised a fact issue on their pleaded affirmative defense of

limitations in response to LCPOA’s summary-judgment motion.2           Id. at *8.

Specifically, we held that limitations as to the Sandpiper camper began to run no

later than January 5, 2005; thus, the four-year limitations period to enforce the

restrictive covenant expired January 5, 2009, rendering LCPOA’s August 13,

2013 petition arguably time-barred absent tolling. Id. at *5, *8.


      2
     On remand, the trial court rendered a partial summary judgment in
LCPOA’s favor regarding the trailer based on this court’s mandate.

                                         3
      On December 12, 2016, after we issued mandate in Reed I and remanded

LCPOA’s petition to the trial court, LCPOA amended its petition to allege that the

Reeds violated the restrictive covenant by storing a recreational camper in view

of the street “since October 2014.”     LCPOA then filed a second motion for

summary judgment, arguing that it conclusively established its claim for

enforcement based on the Reeds’ failure to comply with the restrictive covenants.

In support, LCPOA relied on (1) the Reeds’ warranty deed under which they

acquired the property; (2) the Lake Country restrictive covenants that were filed

in Tarrant County and were incorporated into the warranty deed; (3) Frank’s

deposition admissions that he and Karen violated the restrictive covenants by

parking a recreational camper on their property; and (4) the affidavit of an

LCPOA board member who stated that the Reeds stored their Cedar Crest

camper in view of the street beginning on October 7, 2014, and attached an

October 7, 2014 photograph of the Reeds’ Cedar Crest camper parked on the

Reeds’ property in view of the street as well as several date-stamped

photographs of the Reeds’ property between June 9 and October 7, 2014,

showing no parked camper. In their summary-judgment motion, LCPOA also

addressed the Reeds’ previously asserted limitations defense, which resulted in

this court reversing the summary judgment regarding the Sandpiper camper in

Reed I, and argued that the absence of the Sandpiper camper between June

2014 and October 2014 and the Reeds’ parking of the new Cedar Crest camper



                                        4
in view of the street beginning in October 2014 resulted in limitations starting

anew in October 2014.

      The Reeds did not respond to LCPOA’s second motion for summary

judgment and did not appear at the summary-judgment hearing. On January 13,

2017, the trial court granted LCPOA’s second motion for summary judgment and

permanently enjoined the Reeds from parking “a trailer, house car or other

moveable structure” and from storing “a boat, boat trailer or recreational camper”

within view of the street fronting the Reeds’ house. The trial court also awarded

LCPOA its attorney’s fees. The Reeds filed a motion for new trial, arguing that

LCPOA failed to conclusively prove that its enforcement of the restrictive

covenants was not barred by laches. The motion was overruled by operation of

law. See Tex. R. Civ. P. 329b(c).

      The Reeds again appeal and argue that the trial court’s summary judgment

was in error because (1) LCPOA did not address laches in their second motion,

(2) the Cedar Crest camper did not restart the limitations period because the

Reeds had been engaged in litigation over the storage of a camper, and (3) a

material fact issue existed as to laches and whether LCPOA’s delay was

reasonable after Frank began building improvements in an attempt to comply

with the restrictive covenants. They also argue that the award of attorney’s fees

was erroneous because LCPOA was not entitled to such an award based on its

delay in seeking to enforce the restrictive covenants and because there was a

fact issue regarding reasonableness.

                                        5
                  II. PROPRIETY OF SUMMARY JUDGMENT

                             A. STANDARD OF REVIEW

      Although a permanent injunction normally is reviewed for an abuse of

discretion, we apply the summary-judgment standard of review because the

injunction was issued as the result of a summary-judgment motion. See Jim

Rutherford Invs., Inc. v. Terramar Beach Cmty. Ass’n,
25 S.W.3d 845, 848
 (Tex.

App.—Houston [14th Dist.] 2000, pet. denied). In our de novo review of the

summary judgment, we consider the evidence in the light most favorable to the

Reeds, indulge every reasonable inference in their favor, and resolve any doubts

in their favor. See Samson Expl., LLC v. T.S. Reed Props., Inc.,
521 S.W.3d 766, 774
 (Tex. 2017); Provident Life & Accident Ins. Co. v. Knott,
128 S.W.3d 211
, 215–16 (Tex. 2003).      LCPOA was entitled to summary judgment on its

cause of action if it conclusively established all essential elements of its claim as

a matter of law. See Tex. R. Civ. P. 166a(a), (c); City of Hous. v. Clear Creek

Basin Auth.,
589 S.W.2d 671, 678
 (Tex. 1979); Nichols v. Smith,
507 S.W.2d 518, 520
 (Tex. 1974). If LCPOA did so, it will not be prevented from obtaining

summary judgment merely because the Reeds pleaded an affirmative defense.

See Kirby Expl. Co. v. Mitchell Energy Corp.,
701 S.W.2d 922, 926
 (Tex. App.—

Houston [1st Dist.] 1985, writ ref’d n.r.e.); Clark v. Dedina,
658 S.W.2d 293, 296

(Tex. App.—Houston [1st Dist.] 1983, writ dism’d).         An affirmative defense

prevents the granting of summary judgment in favor of LCPOA only if the Reeds

raised an issue of fact on each element of their defense through competent

                                         6
summary-judgment evidence. See Brownlee v. Brownlee,
665 S.W.2d 111, 112

(Tex. 1984); ‘Moore’ Burger, Inc. v. Phillips Petroleum Co.,
492 S.W.2d 934
,

936–37 (Tex. 1972); Songer v. Archer,
23 S.W.3d 139, 142
 (Tex. App.—

Texarkana 2000, no pet.).

                            B. AFFIRMATIVE DEFENSES

      In their first three issues, the Reeds argue that laches and limitations

barred LCPOA’s effort to enforce the restrictive covenants, rendering the

summary judgment in error. Both laches and limitations are affirmative defenses,

which the Reeds pleaded in their answer to LCPOA’s petition and argued in their

response to LCPOA’s first motion for summary judgment directed to the trailer

and the Sandpiper camper. See Tex. R. Civ. P. 94; Reed I,
2016 WL 3655589
,

at *2. But the Reeds did not respond to LCPOA’s second motion for summary

judgment based on the amended petition and did not proffer competent

summary-judgment evidence raising a genuine issue of material fact on each

element of their affirmative defenses; thus, these affirmative defenses cannot,

standing alone as bare assertions, defeat LCPOA’s right to summary judgment.

See Lujan v. Navistar Fin. Corp.,
433 S.W.3d 699, 704
 (Tex. App.—Houston [1st

Dist.] 2014, no pet.).

      In conclusively establishing the elements of its claim for the purposes of

summary judgment, LCPOA was not required to negate or even address the

Reeds’ affirmative defenses.     See, e.g., Exxon Mobil Corp. v. Rincones,
520 S.W.3d 572, 593
 (Tex. 2017); Brownlee,
665 S.W.2d at 112
. All LCPOA

                                       7
was required to do was conclusively establish each element of its claim for

enforcement of the restrictive covenants, which the Reeds do not argue LCPOA

failed to do. Indeed, the Reeds completely failed to argue to the trial court that

LCPOA did not conclusively establish its claim and do not assert on appeal that

LCPOA’s summary-judgment grounds or proof were legally insufficient to

establish its claims for affirmative relief. See Clear Creek Basin,
589 S.W.2d at 678
. The Reeds instead solely focus on LCPOA’s failure to negate the Reeds’

affirmative defenses, which was not LCPOA’s burden.                  See Brownlee,
665 S.W.2d at 112
; Marx v. FDP, LP,
474 S.W.3d 368
, 377–78 (Tex. App.—San

Antonio 2015, pet. denied). The Reeds’ attempt to raise a genuine issue of

material fact on each element of their affirmative defenses for the first time on

appeal is too little, too late. See Tex. R. Civ. P. 166a(c) (“Issues not expressly

presented to the trial court by written motion, answer[3] or other response shall

not be considered on appeal as grounds for reversal.”). See generally Judge

David Hittner & Lynne Liberato, Summary Judgments in Texas: State and

Federal Practice,
52 Hous. L. Rev. 773
, 876 (2015) (“Absent a written response

to a motion for summary judgment, prior pleadings raising laches and the statute

of limitations are insufficient to preserve those issues for appeal.”).




      3
       “Answer” as used in the summary-judgment rule means an answer to the
motion for summary judgment, not an answer to the petition. See Clear Creek
Basin,
589 S.W.2d at 677
.

                                          8
         Because the Reeds failed to raise genuine issues of material fact on their

affirmative defenses, they are no bar to entry of judgment as a matter of law in

favor of LCPOA based on its motion and proof conclusively establishing their

claim for enforcement, which the Reeds do not dispute on appeal. Accordingly,

we overrule issues one, two, and three.

                              III. ATTORNEY’S FEES

         In their fourth and fifth issues, the Reeds attack the award of attorney’s

fees. Issue four again relies on laches to avoid the award; but the Reeds failed

to raise genuine issues of material fact in the trial court regarding the affirmative

defense as applied to LCPOA’s second motion for summary judgment.                We

overrule issue four for the same reasons we overruled issues one, two, and

three.

         In their fifth issue, the Reeds contend that “an issue of genuine material

fact was raised as to the reasonableness of the fees claimed.” In support of this

contention, they rely on the fact that the amount awarded in Burnett was less

than that awarded here and point to the arguments they made in response to

LCPOA’s first motion for summary judgment, which was the subject of Reed I.

Although the Reeds cannot rely on evidence they submitted in response to

LCPOA’s first motion for summary judgment to raise a genuine issue of material

fact, they can challenge the sufficiency of the evidence to establish

reasonableness for the first time on appeal even in the absence of a summary-



                                          9
judgment response. See Auz v. Cisneros,
477 S.W.3d 355, 359
 (Tex. App.—

Houston [14th Dist.] 2015, no pet.).

      An award of attorney’s fees is mandatory for a prevailing party in an action

to enforce deed restrictions. See
Tex. Prop. Code Ann. § 5.006
(a) (West 2014).

The amount of the award, however, is a question of fact for the fact-finder and is

based on statutory factors. See
id.
 § 5.006(b); Jim Rutherford,
25 S.W.3d at 853
.

We review that determination for an abuse of discretion. See Fonmeadow Prop.

Owners’ Ass’n, Inc. v. Franklin,
817 S.W.2d 104
, 105–06 (Tex. App.—Houston

[1st Dist.] 1991, no writ). In support of their request for attorney’s fees in their

second motion for summary judgment, LCPOA submitted a detailed affidavit that

requested $40,625.50 in attorney’s fees and addressed each of the statutory

factors a trial court must use to determine the amount of the mandatory award.

This evidence supported the trial court’s award to LCPOA of $40,625.50 in

attorney’s fees; therefore, it was not an abuse of discretion. See, e.g., Tien Tao

Ass’n, Inc. v. Kingsbridge Park Cmty. Ass’n, Inc.,
953 S.W.2d 525, 531
 (Tex.

App.—Houston [1st Dist.] 1997, no pet.); Fonmeadow Prop., 817 S.W.2d at 105–

06. We overrule issue five.

                                IV. CONCLUSION

      We recognize that summary judgment was not proper merely based on the

Reeds’ failure to respond to LCPOA’s traditional motion for summary judgment.

See RhĂ´ne-Poulenc, Inc. v. Steel,
997 S.W.2d 217
, 222–23 (Tex. 1999). But the

Reeds’ affirmative defenses, which are the only grounds they raise on appeal in

                                        10
attacking the summary judgment, cannot prevent summary judgment in the

absence of a response and summary-judgment proof raising genuine issues of

material fact on those pleaded defenses. Accordingly, their four appellate issues

relying on their affirmative defenses cannot assail the trial court’s summary

judgment.    Finally, the Reeds have failed to show that the evidence was

insufficient to support the award of attorney’s fees in the amount requested by

LCPOA and supported by competent summary-judgment evidence. We affirm

the trial court’s judgment. See Tex. R. App. P. 43.2(a).


                                                   /s/ Lee Gabriel

                                                   LEE GABRIEL
                                                   JUSTICE

PANEL: SUDDERTH, C.J.; GABRIEL and PITTMAN, JJ.

DELIVERED: December 28, 2017




                                        11