JOHN L. O'HERN, TINA DOOLEY, ANTIONETTE D. GREEN, AND LESLIE PERRYMAN, Appellants
KHALED MUGHRABI, Appellee
Appeal from the 152nd District Court Harris County, Texas
Trial Court Cause No. 2017-77498
consists of Justices Christopher, Jewell, and Hassan.
John O'Hern, Tina Dooley, Antionette D. Green, and Leslie
Perryman appeal the denial of their motion to dismiss under
the Texas Citizens Protection Act
("TCPA"). Appellants are four former volunteer
members of a condominium association's five-member board
of directors. Appellee Khaled Mughrabi, the fifth board
member, sued appellants following the board's decision to
levy a $5.9 million special assessment to replace all of the
condominium building's external windows. Mughrabi's
claims have included breach of fiduciary duty and requests
for injunctive, declaratory, and monetary relief, though at
the time of the challenged ruling his only live claim was for
breach of fiduciary duty. The trial court denied
appellants' TCPA motion to dismiss by operation of law.
appeal, appellants contend that the trial court erred because
(1) Mughrabi failed to present prima facie evidence
supporting his claims, and (2) appellants established an
affirmative defense. Mughrabi, in addition to responding on
the merits, asserts that the appeal is moot because a new
association board of directors cancelled the special
assessment while the case was pending in the trial court.
Mughrabi's jurisdictional arguments first, we agree with
him that this case is moot as to the portion of
Mughrabi's claim that is based on alleged damages
resulting from the now-cancelled special assessment. We
therefore grant Mughrabi's motion to dismiss the appeal
in part and deny it in part. As to the portion of
Mughrabi's claim that as pleaded invokes a live
controversy, we conclude that appellants were entitled to
have that portion of Mughrabi's claim dismissed under the
TCPA. Accordingly, we dismiss the appeal in part, reverse the
judgment in part, and remand the case to the trial court with
instructions to determine appropriate attorney's fees and
building at the intersection of 2520 Robinhood and Kirby in
Houston is a 17-story, 78-unit condominium. The condominium
is governed by the 2520 Robinhood at Kirby Condominium
Association (the "Association"), organized under
the Texas Nonprofit Corporation Act. See Tex. Bus.
Org. Code ch. 22. The Association is managed by a five-member
board of directors (the "Board"). During the
relevant times, appellants and Mughrabi owned units in the
building and served on the Board.
contend that some of the building's exterior windows
began leaking a few years after the building was completed.
The Board hired a consultant, Apollo Better Building
Consultants, to investigate the cause. Apollo concluded that
the majority of the building's windows were defective and
recommended either replacing or refurbishing them. The Board
approved a "pilot program," which entailed
replacing the windows in three units. Two of the three units
selected for the pilot program were owned by two
appellants-John O'Hern, who served on the Board, and Tina
Dooley, whose husband served on the Board at that time. The
third person who participated in the program was not on the
Board and is not a party to this case.
Board ultimately approved a global repair project, which
entailed replacing all exterior windows and applying a
waterproofing coating to the building's façade.
Although a Board member, Mughrabi did not participate in that
vote. One month later, the Board approved a $5.9 million
special assessment to pay for the repair project. Appellants
voted in favor of, and Mughrabi voted against, the special
assessment. Pursuant to the condominium declaration, a
special assessment is charged against all owners in
proportion to their respective interests.
filed suit against appellants, asserting various causes of
action and seeking several forms of relief. First, Mughrabi
alleged that appellants breached a fiduciary duty. According
to Mughrabi, the condominium's governing declaration
requires a vote by all owners for special assessments
relating to the alteration or improvement of any element of
the property, and that appellants passed the assessment
without such a vote in violation of their fiduciary duty.
Second, Mughrabi sought a declaratory judgment that the
special assessment was invalid and unenforceable. Finally, he
sought a temporary restraining order and temporary and
permanent injunctive relief, as well as damages.
weeks later, several relevant events transpired all on the
same day. First, Mughrabi non-suited his claims against
appellants. Second, after Mughrabi filed his notice of
non-suit, appellants filed a TCPA motion to dismiss
Mughrabi's claims, contending that Mughrabi's lawsuit
was based on, related to, or in response to the exercise of
their right to associate. Appellants argued that Mughrabi
could not present prima facie evidence on each element of his
claims, and that appellants were immune from liability in any
event as volunteers in a charitable
organization.Third, later that evening, the Board held a
special meeting during which the owners voted to replace
appellants as Board members. Promptly upon their
installation, the new Board members, joined by Mughrabi,
voted to cancel the special assessment.
Mughrabi had non-suited his claims-and now argues that the
special assessment's cancellation mooted them-Mughrabi
filed an amended petition, reasserting his fiduciary duty
claim against appellants. As discussed more below, in his
amended petition Mughrabi expanded the factual bases for his
fiduciary duty claim and the forms of relief sought.
trial court held a hearing on appellants' motion to
dismiss but did not rule by written order so the motion was
denied by operation of law. Appellants bring this
Mughrabi seeks damages at least in an amount based on a
special assessment the new Board has now cancelled, we must
first decide whether this appeal, including appellants'
request for TCPA fees and sanctions, is moot, as Mughrabi
argues in his motion to dismiss. See State ex rel. Best
v. Harper, 562 S.W.3d 1, 6-7 (Tex. 2018).
becomes moot when a justiciable controversy between the
parties ceases to exist or when the parties cease to have a
legally cognizable interest in the outcome. See Williams
v. Lara, 52 S.W.3d 171, 184 (Tex. 2001). Mootness occurs
when events make it impossible for the court to grant the
relief requested or otherwise affect the parties' rights
or interests. See Heckman v. Williamson County, 369
S.W.3d 137, 162 (Tex. 2012). When a case becomes moot, the
court loses jurisdiction and cannot hear the case, because
any decision would constitute an advisory opinion that is
"outside the jurisdiction conferred by Texas
Constitution article II, section 1." Matthews v.
Kountze Indep. Sch. Dist., 484 S.W.3d 416, 418 (Tex.
2016). But a case "is not rendered moot simply because
some of the issues become moot during the appellate
process." In re Kellogg Brown & Root, Inc.,
166 S.W.3d 732, 737 (Tex. 2005) (orig. proceeding). If only
some claims or issues become moot, the case remains
"live" as to the claims or issues that are not
moot. See id. We analyze mootness based on the
claims pleaded. See id. (although part of case
became moot, court determined that a "live
controversy" still existed, based on claims pleaded in
petition); Albert Lee Giddens, APLC v. Cuevas, No.
14-16-00772-CV, 2017 WL 4159263, at *5 (Tex. App.-Houston
[14th Dist.] Sept. 19, 2017, no pet.) (mem. op.) (analyzing
jurisdictional issue of mootness by construing pleadings);
City of Houston v. Swinerton Builders, Inc., 233
S.W.3d 4, 8-9 (Tex. App.-Houston [1st Dist.] 2007, no pet.)
(examining pleadings to determine mootness of interlocutory
Supreme Court of Texas recently recognized that, in some
cases, "a claim for attorney's fees 'breathes
life' into a suit that has become moot in all other
respects." Best, 562 S.W.3d at 7. Whether an
attorney's-fees claim breathes life into an otherwise
moot appeal depends first on whether the claimant seeks fees
under a statute that authorizes fees only for a prevailing
party or, alternatively, under a statute that permits fees
based on equitable principles regardless of who prevails.
Id. When the party seeks attorney's fees under a
prevailing-party statute, such as the TCPA, the determination
whether the attorney's-fees claim is moot depends on
whether the TCPA movant prevailed before the underlying
substantive claim became moot. Id. If the movant
does not prevail before the substantive claim becomes moot,
then that party's claim for attorney's fees is also
moot because the party can never prevail and thus can never
be entitled to attorney's fees. Id. at 7-8.
Best, the State joined in a petition to remove
Harper from his elected position; in response, Harper filed a
motion to dismiss under the TCPA. Id. at 5. Harper
established his right to dismissal on appeal, which occurred
before his failed re-election bid ultimately rendered the
State's removal petition moot. Id. at 6. Because
Harper prevailed on his TCPA motion to dismiss before the
underlying substantive claim became moot, the court held that
his related attorney's-fees claim "breathe[d]
life" into the otherwise moot appeal, and the court
therefore addressed the ...