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Bahr v. Emerald Bay Property Owners Association, Inc.

Court of Appeals of Texas, Ninth District, Beaumont

May 24, 2018

STEVEN L. BAHR and CYNTHIA L. BAHR, Appellants
v.
EMERALD BAY PROPERTY OWNERS ASSOCIATION, INC., Appellee

          Submitted on November 2, 2017

          On Appeal from the 258th District Court Polk County, Texas Trial Cause No. CIV29248

          Before McKeithen, C.J., Kreger, and Johnson, JJ.

          MEMORANDUM OPINION

          CHARLES KREGER Justice

         Emerald Bay Property Owners Association, Inc. ("the Association") filed suit against Steven L. Bahr and Cynthia L. Bahr for an alleged violation of a fence provision contained in Emerald Bay Subdivision's 1999 Amended Deed Restrictions. The Bahrs responded by filing a counterclaim against the Association and its directors individually. In response to a Rule 91a motion to dismiss, the trial court dismissed the Bahrs' counterclaim against all defendants. The original parties then filed competing motions for summary judgment. After a hearing, the trial court denied the Bahrs' motion for summary judgment and granted summary judgment in favor of the Association. The Bahrs appeal the trial court's judgment. We affirm the trial court's final judgment.

         I. Background

         The underlying lawsuit arises from dispute over a fence erected by the Bahrs. In its original petition, the Association detailed the existence of deed restrictions burdening the property, and asserted the most recent applicable restrictions were contained in the 1999 Amended Restrictions, specifically paragraph 4(B). The provision contained in 4(b) provides:

(B) No wall, fence, planter[, ] or hedge shall be erected or constructed on lots that do not meet the following conditions:
No wall, fence, planter[, ] or hedge shall be erected or constructed between the front property line and a point 8 feet in front of the dwelling or associated garage or shed and within accordance with the front set back line restrictions. No wall[, ] fence, planter[, ] or hedge will be erected or constructed on any corner lot between the side property line and the side set back line adjacent to the street. Walls, fences, plants, or hedges may be erected, but may not extend more than 8 feet from a dwelling or associated garage or shed. Decorative fences along the front easement are permitted with approval of the Board. Fences for child and pet containment and safety are permitted, but can not [sic] extend more than 8 feet from the associated dwelling, garage, or shed and must be approved by the Board of Directors. (Emphasis added).

          The Association claimed that the Bahrs' predecessors in title burdened the property at issue with the 1999 Amended Deed Restrictions by executing the "Acknowledgment by Property Owner(s) to Amended Restrictions for Emerald Bay Subdivision, Polk County, Texas" on August 31, 1999. The record reflects that the subsequent conveyances of the property at issue, including the conveyance to the Bahrs, referenced the amended restrictions in the deeds.

         The Association presented evidence that other property owners in the neighborhood had previously sought approval from the Association's board of directors in conformance with the 1999 Amended Restrictions when seeking permission to build various items covered by the Restrictions. The record also reflects that the Bahrs themselves acknowledged the existence of the Association and the restrictions when they sought permission to extend their garage the previous year.

         When the Bahrs constructed a fence on the property in April 2014, the Association's Secretary sent an email to Steven Bahr advising that the fence was in violation of the 1999 Amended Restrictions and that the Bahrs would have to remove the fence. The Association subsequently sent a certified letter regarding the deed restriction violation notice to the Bahrs, advising them they needed to remove the fence pursuant to chapter 209 of the Property Code. The Bahrs responded through their attorney stating that they denied any violation alleged in the Association's letter and that they would continue to defend and enjoy their property as they saw fit, along with providing a trespass warning to the Association regarding their property.

         In its original petition, the Association sought a temporary injunction, a permanent injunction, statutory liquidated damages under section 202.004(c) of the Property Code, and attorney's fees pursuant to section 5.006 of the Property Code. See Tex. Prop. Code Ann. §§ 5.006, 202.004(c) (West 2014). In response, the Bahrs filed their original answer, special exceptions, affirmative defenses, and counterclaim. In the counterclaim, they sued the Association and its board of directors, individually. The counterclaim sought declaratory judgment pursuant to chapter 37 of the Texas Civil Practices and Remedies Code. See Tex. Civ. Prac. Rem. Code Ann. §§ 37.001-.011 (West 2015). The Association filed a Rule 91a motion to dismiss asserting the Bahrs' counterclaims had no basis in law or fact. See Tex. R. Civ. P. 91a. In response, the Bahrs filed their first amended answer, special exceptions, affirmative defenses, and counterclaim. The trial court granted the Association's Rule 91a motion to dismiss and dismissed the Bahrs' counterclaim as to all defendants.[1], [2]The original parties then filed competing motions for summary judgment. After a hearing, the trial court denied the Bahrs' motion for summary judgment, but granted the Association's motion for summary judgment.

         The Bahrs present three issues on appeal. First, they assert the trial court erred by granting the Association's temporary injunction. Second, the Bahrs assert the trial court's Rule 91a dismissal was "manifest constitutional error and manifest error on the entire case." Finally, the Bahrs argue the trial court's summary judgment in favor of the ...


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