Appeal from the County Civil Court at Law No. 1 Harris
County, Texas Trial Court Cause No. 1081407
consists of Justices Christopher, Donovan, and Jewell.
homeowners' association sued appellant, a homeowner, for
allegedly violating the subdivision's deed restrictions.
The association moved for summary judgment. Appellant did not
file a response, and the trial court granted summary judgment
in the association's favor. The homeowner appeals. We
conclude that the association established its entitlement to
summary judgment and appellant did not create a genuine issue
of material fact. Accordingly, we affirm.
Woods Trails Community Association, Inc. (the
"Association") is the homeowner's association
for the Lexington Woods Trails Subdivision. The Association
filed suit against appellant Eric Lyons, who is alleged to be
the owner of one of the homes located within the subdivision.
The Association claimed that Lyons's home was in
violation of the subdivision's Declaration of Covenants,
Conditions and Restrictions (the "Deed
Restrictions") because Lyons constructed a structure on
his property without obtaining prior approval. The
Association sought injunctive relief-specifically, the
removal of the unapproved structure-and attorney's fees.
filed an answer containing a general denial and several
affirmative defenses. In his answer, Lyons provided his
address as 25203 Tuckahoe Lane, Spring, Texas 77373. This is
the street address of the property about which the
Association complains in its original petition.
Association filed a traditional motion for summary judgment.
The Association asserted that its board of directors passed
certain rules and regulations related to lot maintenance (the
"Regulations"), including a regulation requiring
"[a]ll standing structures on a lot, other than the
home, including . . . sheds . . ." to be "screened
from view from the street." The Association argued that
Lyons was in violation of the Regulations because he had
constructed a shed that was visible from the
street. The Association attached a copy of the
Regulations approved by the Association's board of
directors regarding "Lot Maintenance, " which is
applicable to all "owners, tenants, families, guests and
invitees." The Association also attached an affidavit
from an employee with the Association's management
company, Wendy Ishee. Ishee testified that Lyons is the owner
of the property at 25203 Tuckahoe Lane, and that the
identified property is within the Lexington Woods Trails
Subdivision. The Association submitted photographic evidence
of the property, which depicted the top of a shed visible
over Lyons's fence. Ishee testified that the violation
existed prior to the filing of this lawsuit and continues to
exist, and that the Association sent notice of the violation
to Lyons but Lyons failed to cure the violation. The
Association argued that it was entitled to statutory damages
under Texas Property Code section 202.004(c), a permanent
injunction requiring Lyons to screen the shed from street
view, and attorney's fees. The motion indicates it was
served on Lyons by certified mail-return receipt requested.
Lyons did not file a response.
trial court granted the Association's motion for summary
judgment, awarding statutory damages, a permanent injunction
requiring Lyons to screen the shed from street view, trial
and conditional appellate attorney's fees, and
review a trial court's grant of summary judgment de novo.
Phillips v. Abraham, 517 S.W.3d 355, 359 (Tex.
App.-Houston [14th Dist.] 2017, no pet.). To prevail on a
traditional motion for summary judgment, the moving party
must demonstrate that no material fact issue exists and that
it is entitled to judgment as a matter of law. Tex.R.Civ.P.
166a(c); M.D. Anderson Hosp. & Tumor Inst. v.
Willrich, 28 S.W.3d 22, 23 (Tex. 2000) (per curiam).
Specifically, the moving party must establish each element of
its claim as a matter of law or negate an element of the
non-movant's claim or defense as a matter of law. See
Willrich, 28 S.W.3d at 23. If the movant facially
establishes its right to judgment as a matter of law, the
burden shifts to the nonmovant to raise a genuine, material
fact issue. Phillips, 517 S.W.3d at 359;
Willrich, 28 S.W.3d at 23. If the movant fails to
meet its initial summary judgment burden, then the nonmovant
has no duty to respond and may challenge the grant of summary
judgment on appeal on legal sufficiency grounds regardless
whether the nonmovant filed a response. See
Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex.
the Association moved for summary judgment on its claim that
Lyons violated the Regulations. A party seeking to enforce a
deed restriction must prove that the defendant intended to do
an act which would breach the deed restriction or that the
defendant violated the deed restriction. Nash v.
Peters, 303 S.W.3d 359, 362 (Tex. App.-El Paso 2009, no
pet.); see also Southwyck, Section IV Homeowners'
Ass'n, Inc. v. Southwyck Cmty. Ass'n, Inc., No.
14-16-00139-CV, 2017 WL 4697884, at *6 (Tex. App.-Houston
[14th Dist.] Oct. 19, 2017, no pet.) (mem. op.) (when party
seeks injunction to enforce a covenant in a deed, the movant
must prove that the defendant intends to do an act that would
breach the restrictive covenant). The Association argued that
Lyons violated one of the Regulations relating to lot
maintenance because his shed was visible from the street. The
Association attached evidence that Lyons owned the subject
property and constructed a shed that violates the applicable
Regulation because it is visible from the street. Thus, the
Association facially established its right to summary
judgment. The burden then shifted to Lyons to raise a genuine
issue of material fact. Willrich, 28 S.W.3d at 23.
Lyons did not file a response, however. After the court
granted summary judgment, Lyons did not file any motion to
set aside the judgment, such as a motion for new trial.
his appellate brief liberally,  Lyons argues that summary
judgment was improper for several reasons. First, he contends
the Regulations do not apply to him because he is not the
property owner. Second, acknowledging he did not file a
summary judgment response, he asserts he was unable to
respond because he was out of town on the due date and the
Association filed its motion and set it for hearing knowing
that Lyons would be unable to respond. Third, Lyons alleges
various facts that, in substance, amount to an argument that
he is not violating the Regulations and met all ...