Reversed and Remanded in part, Affirmed in part, and Opinion Filed 

December 17, 2021 

S 

In The 

Court of Appeals 

Fifth District of Texas at Dallas 

No. 05-20-00001-CV 

ANDREA ARNOLD, Appellant 

V. 

RANDY ADDISON, RANDY DENTON, DON MAULSBY, PATRICIA 

BROWN, ROBERT J. BRUNS, GUY DIXON, AND CAMBRIDGE PLACE 

AT PRESTON TRAIL HOMEOWNERS ASSOCIATION, Appellees 

On Appeal from the 296th Judicial District Court 

Collin County, Texas 

Trial Court Cause No. 296-04121-2018 

MEMORANDUM OPINION 

Before Justices Myers, Partida-Kipness, and Carlyle 

Opinion by Justice Partida-Kipness 

Appellant Andrea Arnold appeals from a final judgment dismissing her claims 

against her neighborhood homeowners’ association and certain past and current 

association officers. In four issues, Arnold contends the trial court erred in denying 

her motions for summary judgment, granting appellees’ motions to dismiss her 

declaratory judgment claims, granting appellees’ motion for summary judgment on 

her remaining claims, and awarding attorney’s fees to appellees. We reverse the trial 

court’s judgment in part and affirm the remainder. 
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BACKGROUND 

Arnold’s claims arose from actions taken by officers of the Cambridge Place 

at Preston Trail Homeowners Association (the Association) regarding the passage 

of amended restrictive covenants and bylaws and the interpretation and enforcement 

of the prior restrictive covenants. Cambridge Place at Preston Trail (Cambridge 

Place) is a neighborhood of 121 homes located in a subdivision straddling the border 

between Dallas and Collin counties. Membership in the Association is mandatory 

for all homeowners in Cambridge Place. Arnold moved into Cambridge Place in 

1998. 

In 2013, the Association began considering changes to its governing 

documents. At the time, the Association was governed by a Declaration of 

Covenants, Conditions, and Restrictions established in 1995 (1995 DCCRs) and 

bylaws established in 2004 (2004 Bylaws). In August 2016, Association officers 

Randy Addison, Randy Denton, Don Maulsby, and Patricia Brown began 

distributing proposed amended DCCRs and bylaws (Amended DCCRs) to the 

members. The Association board notified the members that a vote on the Amended 

DCCRs was scheduled for the annual meeting on February 22, 2017. The notice 

included a proxy form by which the members could vote on the Amended DCCRs 

by proxy through the Association’s secretary, Mary Chaffin. The notice included an 

additional proxy form by which members could appoint a proxy to vote on all other 

ballot items. Relevant to the issues on appeal, the notice informed members that their 
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proxies “will help fulfill the quorum requirements” and the meeting would have to 

be rescheduled if “the quorum of homeowners is not present in person or by proxy.” 

The second proxy form also asked members who were unable to attend the meeting 

to “mail, fax, or email” their proxy to the Association’s management company “[i]n 

order to meet the quorum requirements.” Both proxy forms also stated that the proxy 

vote would not be counted unless the form was received before the meeting on 

February 22, 2017. 

As planned, the Association held its annual meeting on February 22, 2017. 

With a quorum of members present, the vote on the Amended DCCRs was taken. 

Seventy-six members voted for the amendments and fifteen members voted against. 

However, Chaffin, the proxy holder, was not at the meeting. Then-president, 

Addison, indicated the board was aware of proxies in Chaffin’s possession. Thus, 

Addison proposed extending the voting period to allow Chaffin to present the proxy 

votes at a later special meeting. A motion to adjourn the meeting was made and 

seconded, and the members in attendance voted to adjourn the meeting. 

The Association reconvened on March 8, 2017, to count the proxy votes. The 

final tally was eighty-four votes for the amendments and fifteen votes against. The 

approval percentage was 69%—above the 67% required to approve the Amended 

DCCRs. See TEX. PROP. CODE § 209.0041(h) (“a declaration may be amended only 

by a vote of 67 percent of the total votes allocated to property owners entitled to vote 

on the amendment of the declaration” unless the declaration permits approval by less 
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than that amount). The Association has been operating under the Amended DCCRs 

since the vote. 

Arnold took issue with the means by which the vote was taken and the board’s 

interpretation of certain provisions of the 1995 DCCRs. Specifically, she contended 

that the 1995 DCCRs and 2004 Bylaws did not permit the members to adjourn the 

annual meeting and continue the vote. She also contended that the board had 

misinterpreted the 1995 DCCRs regarding approval of property repairs and charged 

capital assessments above the 1995 DCCRs’ cap on such assessments. Arnold filed 

the instant lawsuit to address these concerns. 

Arnold filed suit on August 15, 2018, against current and past officers 

Addison, Denton, Maulsby, Brown, Robert J. Bruns, and Guy Dixon. Arnold alleged 

the defendants had breached the Association’s governing documents and violated 

the Texas Residential Property Owners Protection Act (TRPOPA) and chapter 22 of 

the Texas Business Organizations Code. Arnold also sought a declaration that the 

1995 DCCRs were still in force because the vote counted at the annual meeting was 

insufficient to adopt the Amended DCCRs, and the members had no authority to 

continue the vote. The individual defendants moved to dismiss Arnold’s claims 

under rule of civil procedure 91a. According to the individual defendants, they were 

immune from Arnold’s claims under federal and state statutes protecting volunteers; 

the TRPOPA does not provide a private right of action against fellow Association 

members; Arnold failed to plead the existence of a contract between herself and the 
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individual defendants; and Arnold could only bring her declaratory judgment action 

against the Association, which was not a party to the lawsuit. The parties later limited 

the motions to Arnold’s declaratory judgment action. The trial court granted the 

individual defendants’ motions and dismissed Arnold’s declaratory judgment action 

against the individual defendants. 

Arnold filed an amended petition, adding the Association as a defendant. The 

Association filed a counterclaim seeking a declaration that the Amended DCCRs 

were valid and enforceable because the vote was properly conducted. Arnold and 

the Association filed cross-motions for summary judgment on the declaratory 

judgment claims. The trial court denied Arnold’s motion and granted the 

Association’s motion. 

Appellees then moved for traditional and no-evidence summary judgment on 

Arnold’s remaining claims. Among the grounds for dismissal of Arnold’s claims, 

the individual appellees asserted an immunity defense. Arnold responded and filed 

a motion for summary judgment on her claim that the individual defendants breached 

the 1995 DCCRs by imposing capital assessments above the capped amount and 

requiring approval of repairs to homeowners’ property. Arnold also argued that the 

defendants were not immune because they knowingly violated the 1995 DCCRs. 

The trial court granted appellees’ motion and denied Arnold’s motion. 

Appellees filed a motion for entry of judgment and attorney’s fees. Six days 

later, the trial court entered judgment and awarded appellees attorney’s fees. Arnold 
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filed a motion for new trial in which she asserted that the trial court erred in granting 

appellees’ motion before she had a chance to respond and that no evidence had been 

admitted to support the attorney’s fees award. Arnold attached her counteraffidavit 

regarding appellees’ fee request to the motion. Arnold also requested findings of fact 

and conclusions of law. The trial court issued findings of fact and conclusions of law 

regarding only the attorney’s fees award. Arnold’s motion for a new trial was 

overruled by operation of law, and this appeal followed. 

ANALYSIS 

In four issues, Arnold contends the trial court erred in denying her motions 

for summary judgment, granting the individual appellees’ motions to dismiss, 

granting appellees’ motion for summary judgment on Arnold’s non-declaratory 

claims, and awarding attorney’s fees. We address each issue in turn. 

A. Arnold’s Motions for Summary Judgment 

The parties filed cross-motions for summary judgment on Arnold’s 

declaratory judgment action and her claims that the individual appellees breached 

the 1995 DCCRs by imposing improper capital assessments and requiring approval 

of property repairs. The trial court denied Arnold’s motions and granted appellees’ 

motions. Arnold contends the trial court erred in denying her motions. Generally, a 

denial of a summary judgment is not reviewable on appeal. Cincinnati Life Ins. Co. 

v. Cates, 927 S.W.2d 623, 625 (Tex. 1996); Clark v. Dillard’s, Inc., 460 S.W.3d 

714, 724 (Tex. App.—Dallas 2015, no pet.). A denial is reviewable, however, when 
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“both sides moved for summary judgment on the same issues and the trial court 

granted one motion for summary judgment and denied the other.” Clark, 460 S.W.3d 

at 724. Here, both sides moved for summary judgment on all of Arnold’s claims. 

When reviewing the trial court’s judgment on the parties’ cross-motions for 

summary judgment, we “determine all questions presented and render the judgment 

that the trial court should have rendered.” ConocoPhillips Co. v. Koopmann, 547 

S.W.3d 858, 865 (Tex. 2018). 

We review a summary judgment de novo. Tex. Workforce Comm’n v. Wichita 

Cty., 548 S.W.3d 489, 492 (Tex. 2018). We consider the evidence presented in the 

light most favorable to the nonmovant, crediting evidence favorable to the 

nonmovant if reasonable jurors could, and disregarding evidence contrary to the 

nonmovant unless reasonable jurors could not. Mann Frankfort Stein & Lipp 

Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We indulge every 

reasonable inference and resolve any doubts in the nonmovant’s favor. Nassar v. 

Liberty Mut. Fire Ins. Co., 508 S.W.3d 254, 257 (Tex. 2017). 

A defendant who conclusively negates at least one of the essential elements 

of a cause of action or conclusively proves each element of an affirmative defense 

is entitled to summary judgment. Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 

508–09 (Tex. 2010); Chau v. Riddle, 254 S.W.3d 453, 455 (Tex. 2008) (per curiam); 

see TEX. R. CIV. P. 166a(b), (c). A plaintiff is entitled to summary judgment on a 

cause of action if it conclusively proves all essential elements of the claim. See
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MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986); Affordable Motor Co., Inc. v. 

LNA, LLC, 351 S.W.3d 515, 519 (Tex. App.—Dallas 2011, pet. denied); TEX. R.

CIV. P. 166a(a), (c). To conclusively establish a fact, “the evidence must leave ‘no 

room for ordinary minds to differ as to the conclusion to be drawn from it.’” Int’l 

Bus. Machs. Corp. v. Lufkin Indus., LLC, 573 S.W.3d 224, 235 (Tex. 2019) (quoting 

Triton Oil & Gas Corp. v. Marine Contractors & Supply, Inc., 644 S.W.2d 443, 446 

(Tex. 1982)); Affordable Motor Co., 351 S.W.3d at 519. If the movant conclusively 

proves each element of its claim or affirmative defense, the burden shifts to the 

nonmovant to raise a genuine issue of material fact precluding summary judgment. 

Lujan v. Navistar, Inc., 555 S.W.3d 79, 84 (Tex. 2018). 

1. The Vote 

As discussed above, the vote on the Amended DCCRs was taken during two 

meetings: the February 22, 2017 annual meeting and the March 8, 2017 special 

meeting. Arnold contends the 1995 DCCRs did not permit the Association to 

conduct a vote in this way. She specifically contends that the quorum present at the 

February 22, 2017 meeting did not have authority under the 1995 DCCRs to adjourn 

the meeting; a quorum was not present at the March 8, 2017 special meeting; and 

questions presented to a quorum of members in one meeting may not be carried over 

to a subsequent meeting. 

Arnold’s contentions require us to review the trial court’s interpretation of the 

1995 DCCRs. We review a trial court’s interpretation of a restrictive covenant de 
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novo. Tarr v. Timberwood Park Owners Ass’n, Inc., 556 S.W.3d 274, 279 (Tex. 

2018). “[R]estrictive covenants are subject to the general rules of contract 

construction.” Id. at 280 (quoting Pilarcik v. Emmons, 966 S.W.2d 474, 478 (Tex. 

1998)). Like a contract, a restrictive covenant is unambiguous as a matter of law if 

it can be given “a definite or certain legal meaning.” Id. (quoting Pilarcik, 966 

S.W.2d at 478). “Mere disagreement over the interpretation of a restrictive covenant 

does not render it ambiguous.” Id. (quoting Buckner v. Lakes of Somerset 

Homeowners Ass’n, Inc., 133 S.W.3d 294, 297 (Tex. App.—Fort Worth 2004, pet. 

denied)). 

“A paramount concern when construing covenants is giving effect to the 

objective intent of the drafters of the restrictive covenant as it is reflected in the 

language chosen.” Id. Thus, we examine the covenant as a whole in light of the 

circumstances present when the parties entered into the agreement, giving the words 

used in the covenant the meaning they commonly held when the covenant was 

written. Id. (citing Pilarcik, 966 S.W.2d at 478, and Wilmoth v. Wilcox, 734 S.W.2d 

656, 658 (Tex. 1987)). When construing a covenant, a court must not enlarge, 

extend, stretch, or change the covenant’s words, and it must avoid any “construction 

that nullifies a restrictive covenant provision.” Id. (quoting Pilarcik, 966 S.W.2d at 

479). 

“For a subsequent instrument to amend original restrictive covenants, the 

instrument creating the original restrictions must establish both the right to amend 
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such restrictions and the method of amendment.” Syx v. LTG Vegan Ltd., No. 05-05-

00854-CV, 2006 WL 2077567, at *2 (Tex. App.—Dallas July 27, 2006, pet. denied) 

(mem. op.) (citing Scoville v. SpringPark Homeowner’s Ass’n, Inc., 784 S.W.2d 498, 

504 (Tex. App.—Dallas 1990, writ denied)). “To be effective, the amendments must 

be made in the precise manner provided for in the original instrument.” Id. (citing 

Youssefzadeh v. Brown, 131 S.W.3d 641, 645 (Tex. App.—Fort Worth 2004, no 

writ), and concluding purported amendments were not effective because they were 

not made during the times allotted for such amendments by the restrictive 

covenants). 

Arnold contends the Amended DCCRs were never adopted because they were 

not “approved in the precise manner provided in the [1995 DCCRs].” Section 9.2 of 

the 1995 DCCRs permits amendment “upon the express written consent of at least 

seventy percent (70%) of the outstanding votes of each membership class of the 

Association.” The parties agree, however, that this requirement is limited by section 

209.0041(h) of the property code, which permits amendment “by a vote of 67 percent 

of the total votes allocated to property owners entitled to vote on the amendment of 

the declaration” and overrides declarations requiring a higher percentage. TEX. PROP.

CODE § 209.0041(h).1 Thus, the Amended DCCRs could only become effective if 

1

 This subsection applies only to declarations requiring a vote of more than 67%, such as the 1995 

DCCRs. See TEX. PROP.CODE §§ 209.0041(h-1) (permitting amendment by less than 67% if the declaration 

allows), 209.0041(h-2) (requiring a vote of 67% of “the lots subject to the declaration” if the declaration is 

silent as to voting rights for amendment). 
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67% of the Association’s members voted for them. Although appellees contend the 

amendments passed with 69% of the vote, Arnold contends they failed because the 

vote was improperly conducted. 

To support her argument, Arnold cites three provisions of the 2004 Bylaws: 

Section 2.04 addressing quorums, section 2.05 addressing proxies, and section 2.06 

addressing meeting adjournment. Section 2.06 states: 

When a quorum is present at any meeting of the Association, a majority 

by Members present, in person or by proxy, at such meeting shall 

decide any question brought before such meeting unless the question is 

one upon which, by express provisions of the Declaration or the ByLaws, a different vote is required, in which case such express provision 

shall govern and control a vote on such question. 

According to Arnold, section 2.06’s use of the word “shall” required the members 

at the February 22, 2017 meeting to decide the “question” of the Amended DCCRs. 

Arnold relies on case law recognizing “shall” as “creating a duty or obligation.” See 

Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex. 2001); Charlton v. State, 

334 S.W.3d 5, 10 (Tex. App.—Dallas 2008, no pet.); Filmstrips & Slides, Inc. v. 

Dallas Cent. Appraisal Dist., 806 S.W.2d 289, 290–91 (Tex. App.—Dallas 1991, no 

writ); Akhtar v. Leawood Hoa, Inc., 508 S.W.3d 758, 765 (Tex. App.—Houston [1st 

Dist.] 2016, no pet.). By its own terms, however, section 2.06 applies only to 

“questions” requiring only a majority of members to decide. As previously 

discussed, amendments to the Association’s governing documents required more 

than a simple majority. Thus, by its own terms, section 2.06 did not control the vote 

on the Amended DCCRs. 
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Even if section 2.06 controlled, it would not preclude the members from 

continuing the vote, as Arnold contends. According to Arnold, the section’s use of 

the word “shall” “creates a duty or obligation on Members at a meeting at which 

there is a quorum present to ‘decide any question brought before such meeting.’” In 

other words, the members must decide any question presented at the meeting. This 

interpretation is inconsistent with the cited precedent concluding that “shall” does 

not always create a duty or obligation and that actions taken in contravention of any 

such duty or obligation are not necessarily void. See Helena Chem. Co., 47 S.W.3d 

at 493 (“shall” is “only directory when this interpretation is most consistent with the 

Legislature’s intent”); Charlton, 334 S.W.3d at 11 (statute stating that a court “shall” 

sign an agreed child support review order within three days after the order is filed 

with the district clerk does not render void an order signed after three days). 

Moreover, Arnold’s interpretation would result in absurdity. See Kourosh Hemyari 

v. Stephens, 355 S.W.3d 623, 626–27 (Tex. 2011) (“[U]nder general rules of 

construction we avoid strictly construing an instrument’s language if it would lead 

to absurd results.”). For example, should a majority of the members present at a 

meeting abstain from voting on a “question” presented, the members would be in 

violation of section 2.06 under Arnold’s interpretation because the majority must

decide the question. To the contrary, the plain language of the provision merely 

states that “questions” not addressed by other provisions of the 1995 DCCRs will be 

decided by a majority vote. See Tarr, 556 S.W.3d at 280 (when interpreting a 
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covenant, we give the words the meaning they commonly held when the covenant 

was written).

Arnold further contends that the members could not vote to adjourn the 

February 22, 2017 meeting because the 1995 DCCRs “do not allow adjourning a 

vote,” and authority to adjourn a meeting is granted only to a non-quorum under 

section 2.04. That section requires 30% of the “votes of all Lots” to constitute a 

quorum and states that if a quorum is not present at any meeting, “the Members 

present or represented by proxy shall have the power to adjourn and reconvene the 

meeting . . . until a quorum shall be present or represented.” According to Arnold, 

this language grants the authority to adjourn a meeting only to a non-quorum because 

the 1995 DCCRs contain no other language granting authority to adjourn a meeting, 

and section 2.06 requires members to decide all “questions” presented if a quorum 

exists. As previously discussed, however, section 2.06 does not apply to the vote at 

issue and Arnold’s interpretation of section 2.06 is incorrect. 

Regardless, the plain language of section 2.04 does not prevent a quorum of 

members from adjourning a meeting. Indeed, it does not even mention any authority 

granted to a quorum. Rather, the section’s plain language merely states the 

percentage of members required to constitute a quorum and grants a non-quorum of 

members a limited authority they would not otherwise have, namely the authority to 

adjourn a meeting and reconvene when a quorum is present. See Tarr, 556 S.W.3d 

at 280. Arnold has not directed us to any language in the 1995 DCCRs, and we have 
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found none, indicating that the right to adjourn a meeting is restricted to a nonquorum of members. 

Arnold contends that even if the members could adjourn the meeting, there 

was not a quorum at the March 8, 2017 special meeting. Thus, the vote taken at that 

meeting was invalid. Arnold cites the minutes of the special meeting to show that 

there were only eighteen members physically present, which is well below the 

number required to make a quorum. As noted in the proxy forms and supported by 

the 2004 Bylaws, however, proxies are counted when determining whether a quorum 

is present for a vote. Specifically, the 2004 Bylaws state that members “may be 

present at any meeting of the Association and may act at such meeting either in 

person or by proxy.” The proxy forms echoed this rule by notifying the members 

that their proxy forms must be received before the meeting to fulfill the quorum 

requirements. This admonishment is consistent with section 2.05’s requirement that 

“[p]roxies must be filed with the Secretary of the Board at or before the appointed 

time of each meeting of the Association.” When the proxies are included, the minutes 

of the special meeting reflect that at least ninety-nine members were present. This is 

well above the 30% required to make a quorum. The minutes also reflect that eightyfour members—approximately 69%—voted for the Amended DCCRs. This exceeds 

the 67% required to pass the Amended DCCRs. See TEX. PROP.CODE § 209.0041(h). 

Accordingly, based on the record before us, we conclude the Amended DCCRs were 

properly approved by the Association’s members. 
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2. Capital Assessments 

Arnold next contends that the individual appellees breached the 1995 DCCRs 

by imposing capital assessments above the amount permitted. Appellees contend 

that the assessments in question were considered maintenance assessments before 

the enactment of the Amended DCCRs, and the 1995 DCCRs had no cap on 

maintenance assessments. 

Section 7.1 of the 1995 DCCRs required each member to pay “annual 

maintenance assessments or charges (‘Maintenance Assessments’)” and “special 

assessments for capital improvements (‘Capital Assessments’).” Section 7.4 stated 

that Maintenance Assessments were intended to “maintain the Common Properties 

within reasonable standards.” This section also required the board to “set the amount 

of the Maintenance Assessment that may be levied against each Lot for the 

succeeding year,” limiting increases in the Maintenance Assessment to 10% above 

the prior year’s assessment, unless approved by the members. In contrast, section 

7.5 stated that Capital Assessments were intended to “defray[] . . . the cost of any 

construction or reconstruction, unexpected repair or replacement of a capital 

improvement upon the Properties or Common Properties . . . .” This section also 

capped Capital Assessments at $25,000 per year, unless approved by the members. 

According to Arnold, she produced summary-judgment evidence that the 

board began exceeding the annual $25,000 cap on Capital Assessments in 2011. In 

support of her motion for summary judgment on her breach-of-covenant claim, 
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Arnold produced the 1995 DCCRs, board member correspondence, and the board’s 

2005 resolution establishing a Replacement Fund and Replacement Fund Operating 

Policy, which Brown referenced in January 2018 correspondence with Arnold. On 

appeal, Arnold cites Brown’s January 2018 correspondence in which Brown noted 

the Association had been “collecting $26,015 annually since 2011” and that dues 

collected for the “replacement fund” were intended to pay for “future major repairs 

and replacements of the Common Area Elements of our HOA.” Arnold also cites the 

minutes of a November 2010 board meeting in which the board increased 

“assessment attributable to the Replacement and Major Repair Fund” from “$190 to 

$215 per home.” Appellees contend these “replacement fund” assessments were not 

Capital Assessments, but Maintenance Assessments. We disagree. 

In 2005, the board adopted a resolution to create a Replacement Fund and 

related Operating Policy to pay for “major repairs and replacements of common area 

site improvements” or “common property components” (the 2005 Resolution). The 

intent was to accumulate funds for such major expenses so that “current rather than 

future owners [are charged] with the cost of the current use of assets . . . .” The 2005 

Resolution also funded the Replacement Fund by transferring assets designated, at 

the time, “for future major repairs to capital assets.” (emphasis added). The 

Replacement Fund Operating Policy identified the Association’s “common 

property” as “streets, sidewalks, perimeter walls, entrance gates and mechanisms, 

gate house, greenbelt, street lighting and related capital assets.” (emphasis added). 
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The policy also expressly stated that maintenance expenditures could not be paid 

from the Replacement Fund. 

Expenditures for major repairs and replacements of common area site 

improvements detailed in Exhibit C of the Reserve Fund Study (as 

periodically updated) shall be expensed in the replacement fund. 

. . . . 

Expenditures for routine maintenance and repairs, inspection and 

service fees, maintenance contracts and other items, which are not 

contemplated in Exhibit C of the Reserve Fund Study (as periodically 

updated), shall be charged against expense in the operating fund. 

Replacing minor parts, lubricating and adjusting equipment, repainting, 

and cleaning are examples of maintenance charges that occur regularly 

and are treated as ordinary operating fund expenses. These items are 

generally replaced in small, low-cost increments. 

By echoing the 1995 DCCRs’ reference to “repair and replacement of a capital 

improvement upon . . . Common Properties” and expressly excluding maintenance 

expenditures, the language of the 2005 Resolution and the Replacement Fund 

Operating Policy reflects an intent to treat the Replacement Fund assessments as 

Capital Assessments. See URI, Inc. v. Kleberg Cty., 543 S.W.3d 755, 764 (Tex. 

2018) (“We . . . interpret contract language according to its plain, ordinary, and 

generally accepted meaning unless the instrument directs otherwise.” (internal 

citation omitted)).

Other evidence offered in support of Arnold’s summary-judgment motion 

further supports this conclusion. Specifically, Arnold cited minutes from a 

November 9, 2010 board meeting in which the board voted to raise the “Replacement 

and Major Repair Fund” assessment from $190 to $215 per home. Brown recognized 
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this increase in her January 2018 correspondence, stating that the 2010 dues increase 

resulted in the Association “collecting $26,015 annually since 2011.” Addressing 

the pending 2018 dues increase, Brown confirmed the assessment was intended to 

fulfill the Replacement Fund Operating Policy by “keeping special assessments to a 

minimum so we can avoid large assessments.” She also acknowledged the dues 

increase addressed increased “capital costs.” 

Arnold offered an October 16, 2017 memorandum from Dixon to the board 

that also recognized the 2010 dues increase made “the annual 

assessment . . . $26,015 [$215 per household x 121 households].” Dixon further 

noted, “Traditionally, modifications to Replacement Fund revenue via capital 

assessment adjustments were considered coincident with each 5-year Reserve 

Study.” (emphasis added). The Replacement Fund Operating Policy required the 

board to make adjustments to annual Replacement Fund contributions based on this 

periodic Reserve Study, which assessed the “normal and remaining useful lives of 

the components” of “each major element of common property.” 

Relevant to Arnold’s claim that the board did not obtain member approval to 

exceed the Capital Assessment cap, Dixon stated in his 2017 memorandum, “The 

magnitude of such adjustments had been at the sole discretion of the Board. Now, 

however, the new governing documents limit the Board’s authority to an assessment 

adjustment of 15% from the prior year, without homeowner approval.” This 
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statement is in direct contrast to section 7.5 of the 1995 DCCRs requiring the board 

to obtain member approval to exceed the Capital Assessment cap. 

In sum, the 2005 Resolution reflects an intent to provide funding for the repair 

and replacement of the Association’s capital assets through Capital Assessments. 

Other evidence offered by Arnold supports this conclusion by directly addressing 

such assessments as Capital Assessments. Based on the record before us, we 

conclude the Replacement Fund assessments predating the enactment of the 

Amended DCCRs were Capital Assessments and there is evidence that such 

assessments imposed after 2010 exceeded the $25,000 cap dictated in the 1995 

DCCRs. Accordingly, we sustain Arnold’s first issue with respect to her claim that 

appellees breached the 1995 DCCRs by exceeding the cap on Capital Assessments. 

Arnold asserted in her summary-judgment motion that she was entitled to 

$41.95 in damages. This amount, however, was predicated on improper Capital 

Assessments “through 2018.” In light of our determination that the Association has 

been properly operating under the Amended DCCRs since March 8, 2017, fact issues 

remain as to damages. 

3. Repair Approval 

Arnold also moved for summary judgment seeking to enjoin the individual 

appellees from requiring approval of repairs to homeowners’ properties. Arnold 

contends that the individual appellees violated the 1995 DCCRs by misinterpreting 
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“repairs” as “alterations” requiring approval.2

 Relying on section 8.4 of the 1995 

DCCRs, addressing repairs to existing homes, Arnold contends that repairs do not 

require approval because they “must be consistent with the conditions in place when 

the improvement was first approved.” Contrary to Arnold’s assertion, however, 

section 8.4 does not require repairs to be made in accord with initial conditions. 

Accordingly, it does not support her contention that repairs are exempt from 

approval. 

Under the heading “Nonconforming and Unapproved Improvements,” section 

8.4 describes the board’s discretion to require an owner to restore improvements to 

“the condition existing prior to the construction thereof” if they were not made 

according to the 1995 DCCRs’ specifications. Recognizing that the specifications 

may have changed since the improvements were originally constructed, section 8.4 

permits repair in accord with prior specifications. 

Dwellings or other improvements constructed initially in accordance 

with these Covenants and Restrictions and having received any 

necessary approval of the Architectural Control Committee in 

connection with their initial construction, may be repaired, maintained 

and restored in accordance with the standards in force at the time of 

their initial construction, notwithstanding any subsequent amendment 

or revision of these Covenants and Restrictions or of the Architectural 

Guidelines. (emphasis added). 

2

 In her August 27, 2019 motion for summary judgment, Arnold sought to enjoin the individual 

appellees from enforcing the repair policy through the Amended DCCRs’ enforcement mechanism. 

Although she sought to prevent enforcement through the Amended DCCRs, she alleged that the individual 

appellees’ repair policy violated only the 1995 DCCRs. She made no similar allegation as to the Amended 

DCCRs. 
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In contrast, if improvements are “totally destroyed or totally replaced,” the “new 

improvements must conform to the Covenants and Restrictions and the Architectural 

Guidelines in force at the time of their construction.” (emphasis added). Thus, 

contrary to Arnold’s contention, section 8.4 does not require repairs to be made in 

accord with the initial standards, but merely permits repairs to be so made. 

Moreover, there is no language in this provision exempting any repair from approval. 

Regardless, Arnold contends that requiring approval of repairs exceeds the 

board’s discretionary authority. We will uphold the discretionary authority exercised 

by a property owner’s association unless we determine “by a preponderance of the 

evidence that the exercise of discretionary authority was arbitrary, capricious, or 

discriminatory.” TEX. PROP. CODE § 202.004(a). In her motion for summary 

judgment, Arnold asserted the Association’s requiring approval of repairs is “not a 

discretionary act entitled to a presumption of reasonableness” but a “clear violation” 

of section 8.4. However, she cited no authority to support this assertion. 

Article VIII of the 1995 DCCRs established an Architectural Control 

Committee (ACC) to promulgate Architectural Guidelines “in keeping with the 

overall quality, general architectural style and design of the community.” The article 

also granted the ACC “the authority to make final decisions in interpreting the 

general intent, effect and purpose of those matters for which it is responsible in 

accordance with these Covenants and Restrictions.” Regarding approval, the article 

stated that “[n]o building, structure, paving, pools, fencing, hot tubs or improvement 
 –22– 

of any nature shall be erected, placed or altered” without approval by the ACC as to, 

among other things, “conformity and harmony of external design, color, and texture 

with existing structures and existing landscaping,” “quality of materials,” and “the 

other standards set forth within this Declaration or the Architectural Guidelines.” 

Arnold contends the ACC’s “authority extends to new construction and 

improvements—not completed construction and improvements that a homeowner 

merely repairs, maintains, or restores.” As noted, however, the ACC is responsible 

for approving alterations. This necessarily means the ACC’s authority is not 

restricted to “new construction and improvements,” as Arnold contends. See Alter, 

Merriam-Webster, https://www.merriam-webster.com/dictionary/alter (last visited 

on Nov. 8, 2021) (defining “alter” as “to change (something)”). Arnold also asserts 

that “as long as a homeowner is not changing a structure (read altering) but simply 

maintaining what has already been approved (read repairing) the ACC has no 

authority to review and approve such work.” Arnold does not direct us to any 

provision other than section 8.4 to support the contention that the ACC has no 

authority to review and approve repairs, and we have found none. And section 8.4 

contains no such restriction. 

In light of the ACC’s authority to preserve “the overall quality, general 

architectural style and design of the community,” coupled with the permissive 

section 8.4 merely allowing, but not requiring, owners to make repairs in accord with 

initial standards, the board’s decision to require approval of repairs is reasonable and 
 –23– 

not arbitrary, capricious, or discriminatory. See TEX. PROP. CODE § 202.004(a) 

(requiring courts to uphold association’s discretionary authority unless exercised 

arbitrarily, capriciously, or discriminatorily). Additionally, appellees offered 

declarations of Addison, Brown, Bruns, and Maulsby in which each affiant attested 

that during his or her tenure on the board, the Architectural Control Guidelines had 

always been interpreted to require “approval to complete architectural repairs to the 

exterior of . . . homes if the repairs are visible from the greenbelt, common areas, 

sidewalks, streets or alleys.” Arnold did not contest or object to these statements. 

Accordingly, we overrule Arnold’s first issue as to the board’s interpretation of the 

1995 DCCRs to require approval of repairs. 

On the record before us, we overrule Arnold’s first issue as to her declaratory 

judgment action regarding the validity of the vote on the Amended DCCRs and her 

claim the individual appellees violated the 1995 DCCRs by requiring approval of 

repairs. We sustain her first issue as to her claim that the board violated the 1995 

DCCRs by exceeding the cap for Capital Assessments imposed from 2011 to 2017. 

B. Appellees’ Motions to Dismiss Arnold’s Declaratory Judgment Action 

In her second issue, Arnold contends the trial court erred in dismissing her 

declaratory judgment claim. The individual appellees moved to dismiss her 

declaratory judgment claim under rule of civil procedure 91a.3

 According to Arnold, 

3

 The individual appellees filed two Rule 91a motions. The first motion was filed by Addison, Brown, 

Bruns, and Dixon. This motion sought to dismiss all of Arnold’s claims on multiple grounds. At the hearing, 
 –24– 

the motions were improper because “they were functionally pleas to the jurisdiction 

or motion for joinder of an indispensable party.” Alternatively, Arnold contends the 

trial court erred because there was a justiciable controversy between herself and the 

individual appellees. 

Under rule 91a, “a party may move to dismiss a cause of action on the grounds 

that it has no basis in law or fact.” TEX. R. CIV. P. 91a.1. “A cause of action has no 

basis in law if the allegations, taken as true, together with inferences reasonably 

drawn from them, do not entitle the claimant to the relief sought.” Id. “A cause of 

action has no basis in fact if no reasonable person could believe the facts pleaded.” 

Id. “We review the merits of a Rule 91a ruling de novo; whether a defendant is 

entitled to dismissal under the facts alleged is a legal question.” In re Farmers Tex. 

Cty. Mut. Ins. Co., 621 S.W.3d 261, 266 (Tex. 2021) (orig. proceeding). 

Arnold contends that the individual appellees raised jurisdictional issues in 

their Rule 91a motions. According to Arnold, a party cannot use a Rule 91a motion 

to challenge the trial court’s jurisdiction. She cites City of Austin v. Liberty Mutual 

Insurance, 431 S.W.3d 817, 822 (Tex. App.—Austin 2014, no pet.), in support of 

this assertion. However, the court in Liberty Mutual did not construe the Rule 91a 

motion as a plea to the jurisdiction because it raised a jurisdictional challenge. 

the parties informed the trial court they had agreed to limit the motion to Arnold’s claim for declaratory 

relief. The trial court granted the motion and dismissed only this claim. Denton and Maulsby were later 

served, answered, and filed a Rule 91a motion limited to Arnold’s claim for declaratory relief. The trial 

court granted this motion. Accordingly, the only claim at issue in the Rule 91a motions was Arnold’s claim 

for declaratory relief. 
 –25– 

Liberty Mut., 431 S.W.3d at 822 n.1. Rather, the court merely treated the motion as 

a plea to the jurisdiction on interlocutory appeal because interlocutory appeal is not 

permitted from denial of Rule 91a motion. See id. Indeed, a party may seek dismissal 

for lack of jurisdiction under rule 91a. See Office of Attorney Gen. of Tex. v. 

Brickman, No. 03-21-00161-CV, --- S.W.3d ---, 2021 WL 4897561, at *2 (Tex. 

App.—Austin Oct. 21, 2021, no pet. h.). Regardless, the individual appellees’ 

motions did not raise jurisdictional issues as to Arnold’s declaratory judgment claim. 

Arnold contends in the alternative that the individual appellees’ Rule 91a 

motions merely sought joinder of a necessary party: the Association. The absence of 

a necessary party will generally not merit dismissal but only prevent entry of 

judgment as to the remaining parties. See Brooks v. Northglen Ass’n, 141 S.W.3d 

158, 162–63 (Tex. 2004) (discussing the general principle and noting that section 

37.006 of the Declaratory Judgments Act further protects rights of non-parties to the 

proceeding). Thus, if the Association were a necessary party, its absence would not 

merit dismissal of Arnold’s declaratory judgment claim.

The individual appellees’ Rule 91a motions asserted there was no basis in law 

or fact for Arnold’s declaratory judgment action against the individual appellees. 

Although the motions noted that Arnold had not sued the Association, they did not 

argue that the Association was a necessary party. Rather, they argued that Arnold 

could bring her declaratory judgment action only against the Association. 

Specifically, the individual appellees asserted that “[a]ny claims relating to the 
 –26– 

validity of the governing documents of the Association would amount to a 

controversy between members of the Association and the Association itself.” 

Accordingly, the individual appellees asserted that Arnold could not maintain this 

action against them, and they moved to dismiss the claim. The motions contain no 

indication that the individual appellees treated the Association merely as a necessary 

party. Based on the record before us, we conclude the motions sought relief 

permitted under rule 91a. See TEX. R. CIV. P. 91a.1 (permitting a party to seek 

dismissal of a claim that has no basis in law or fact).

Arnold contends that even if the motions were proper under rule 91a, the trial 

court erred in granting the motions because her declaratory judgment claim against 

the individual appellees was valid. The Uniform Declaratory Judgments Act is 

intended “to settle and to afford relief from uncertainty and insecurity with respect 

to rights, status, and other legal relations.” TEX. CIV. PRAC. & REM. CODE § 

37.002(b). A declaratory judgment is appropriate “only if a justiciable controversy 

exists as to the rights and status of the parties and the controversy will be resolved 

by the declaration sought.” Sw. Elec. Power Co. v. Lynch, 595 S.W.3d 678, 685 

(Tex. 2020) (quoting Bonham St. Bank v. Beadle, 907 S.W.2d 465, 467 (Tex. 1995)). 

A justiciable controversy requires a “real and substantial controversy involving 

genuine conflict of tangible interests and not merely a theoretical dispute.” Id. 

Arnold’s declaratory judgment action specifically sought a declaration that 

“the Governing Documents, as they existed prior to the Defendants’ purported 
 –27– 

adoption of their Proposed Amendments, are valid, enforceable, and subsisting, and 

that the Proposed Amendments are not valid, enforceable, or subsisting.” 

Essentially, Arnold sought a declaration that the Association was operating under 

invalid governing documents. She based this allegation on the individual appellees’ 

alleged violation of the 1995 DCCRs. Thus, Arnold cites the 1995 DCCRs’ 

enforcement provision as authority for her declaratory judgment claim. Section 9.3 

of the 1995 DCCRs states that “[t]hese Covenants and Restrictions may be enforced 

against any person or persons violating or attempting to violate them.” The trial court 

concluded, however, that this provision would allow a member to sue a neighbor for 

violating the DCCRs, but it would not support a claim that the Association is not 

operating under valid governing documents. Expounding on the relationship 

between the governing documents, the Association, and the members, the trial court 

noted, “[T]he amended CCRs that you are arguing about today . . . belong to the 

homeowners [sic] association. They don’t belong to any of those individual members 

at all. . . . What you’re asking this Court to do is to invalidate an entire group of 

CCRs owned by – that’s not the proper legal term – but owned by the homeowners 

[sic] association.” We agree. 

The individual appellees asserted in their motions to dismiss, and on appeal, 

that Arnold’s declaratory judgment claim could be brought only against the 

Association. They contend that the declaratory judgment sought by Arnold would 

not have resolved the dispute between her and the Association because it would be 
 –28– 

enforceable only as to the individual defendants. Indeed, “all persons who have or 

claim any interest that would be affected by the declaration must be made parties,” 

and “[a] declaration does not prejudice the rights of a person not a party to the 

proceeding.” TEX. CIV. PRAC. & REM. CODE § 37.006(a). Thus, any declaratory 

judgment as to only the individual appellees would not have prevented the 

Association from continuing to operate under the Amended DCCRs. Several 

opinions from this Court and our sister courts confirm that a declaratory judgment 

action to invalidate either governing documents or actions taken by an association 

board pursuant to governing documents must be brought against the association, not 

individual board members. See, e.g., Simpson v. Oaks on Montfort Condo. Ass’n, 

No. 05-19-00123-CV, 2021 WL 164449, at *2 (Tex. App.—Dallas Jan. 19, 2021, 

no pet.) (mem. op.) (request for declaratory judgment as to whether association had 

the right to enter a unit to perform repairs, and whether association had the right to 

charge fees for security to plaintiff’s account); Garden Oaks Maint. Org. v. Chang, 

542 S.W.3d 117, 126 (Tex. App.—Houston [14th Dist.] 2017, no pet.) (homeowners 

filed counter-claim against association and its maintenance organization seeking 

declarations regarding “the invalidity of documents purportedly establishing [the 

organizations] under sections 201.005 and 204.006 of the Property Code and 

regarding the invalidity of [the maintenance organization’s] by-laws”); Storck v. 

Tres Lagos Prop. Owners Ass’n, Inc., 442 S.W.3d 730, 735–36 (Tex. App.—

Texarkana 2014, pet. denied) (homeowner alleged association violated property 
 –29– 

code and failed to hold proper board election because bylaws impermissibly 

restricted voting to members who were current on their dues); Friedman v. Rozzlle, 

No. 13-12-00779-CV, 2013 WL 6175318, at *1 (Tex. App.—Corpus ChristiEdinburg Nov. 21, 2013, pet. denied) (mem. op.) (member sued association and 

members seeking declaration that short-term rental provision of association’s 

governing documents was unenforceable because association had not prevented 

short-term rentals, association filed cross-claim seeking declaration as to whether it 

had duty to enforce the short-term rental provision). Accordingly, we conclude the 

trial court did not err in granting the individual appellees’ motions to dismiss, and 

we overrule Arnold’s second issue. 

C. Officer Immunity

In her third issue, Arnold contends the trial court erred in granting appellees’ 

motion for summary judgment on the individual appellees’ affirmative defense of 

immunity because appellees did not move for summary judgment on and did not 

present evidence conclusively establishing their immunity defense. Alternatively, 

Arnold contends she raised a fact issue as to whether the individual appellees 

“knowingly and/or intentionally violated” and “knew or should have known” they 

were violating the 1995 DCCRs. Having sustained Arnold’s first issue only with 

respect to her claim the individual appellees violated the 1995 DCCRs by exceeding 

the Capital Assessment cap, we limit our consideration of her third issue to that 

claim. 
 –30– 

At the outset, we note that Arnold appears to argue on appeal that the 

individual appellees did not move for summary judgment on their immunity defense 

because they did not file a motion titled as such. “[W]e look to the substance of a 

motion to determine the relief sought, not merely to its title.” In re Estate of 

Hutchins, 391 S.W.3d 578, 585 (Tex. App.—Dallas 2012, no pet.) (quoting Surgitek, 

Bristol–Myers Corp. v. Abel, 997 S.W.2d 598, 601 (Tex. 1999)). Accordingly, we 

will consider the substance of the appellees’ motion for summary judgment to 

determine whether they moved for summary judgment on the individual appellees’ 

immunity defense. 

After the trial court granted appellees’ motions for summary judgment as to 

Arnold’s and the Association’s declaratory judgment claims, appellees moved for 

traditional summary judgment on Arnold’s remaining claims. The individual 

appellees asserted, among other grounds, that they were immune from Arnold’s 

claims under both the federal Volunteer Protection Act of 1997 (VPA) and the Texas 

Charitable Immunity and Liability Act (TCILA). 

The VPA protects volunteers of a nonprofit organization from liability 

“caused by an act or omission of the volunteer” if “the volunteer was acting within 

the scope of the volunteer’s responsibilities in the nonprofit organization or 

governmental entity at the time of the act or omission.” 42 U.S.C. § 14503(a). 

Likewise, the TCILA protects “a volunteer of a charitable organization” from 

liability “for any act or omission resulting in death, damage, or injury if the volunteer 
 –31– 

was acting in the course and scope of the volunteer’s duties or functions, including 

as an officer, director, or trustee within the organization.” TEX. CIV. PRAC. & REM.

CODE § 84.004(a). Neither statute, however, protects acts or omissions that are 

intentional, willful, or done with conscious indifference to the rights or safety of 

others.4

 42 U.S.C. § 14503(a); TEX. CIV. PRAC. & REM. CODE § 84.007(a). Citing 

their declarations offered as evidence, the individual appellees argued they were 

immune from Arnold’s claims because they “acted in good faith and in accordance 

with the governing documents in place at the time when exercising their duties as 

officers of the Association.” Relevant to Arnold’s capital-assessments claim, the 

individual appellees declared they “considered the financial needs of the Association 

and consulted the governing documents in place at the time the assessments were 

levied.” 

Arnold responded to the individual appellees’ immunity defense, and argued 

the individual appellees were not immune “because violating the restrictive 

covenants of Cambridge Place is not within the scope of their responsibility to the 

Association.” See 42 U.S.C. § 14503(a), TEX. CIV. PRAC. & REM. CODE § 84.004(a) 

(protecting volunteers for acts taken within the scope of their responsibilities). By 

this, Arnold would have us disregard the fact that the individual appellees took the 

4

 The VPA specifically excludes “willful or criminal misconduct, gross negligence, reckless 

misconduct, or a conscious, flagrant indifference to the rights or safety of the individual harmed by the 

volunteer.” 42 U.S.C. § 14503(a)(3). The TCILA specifically excludes “an act or omission that is 

intentional, wilfully negligent, or done with conscious indifference or reckless disregard for the safety of 

others.” TEX. CIV. PRAC. & REM. CODE § 84.007(a). 
 –32– 

actions in question in their capacity as board members. We decline to do so. The 

1995 DCCRs unequivocally grant authority to the board to manage the assessment 

process and funds collected. Accordingly, the individual appellees’ actions in 

amending and imposing Capital Assessments were taken within the scope of their 

responsibilities as board members. Under both the VPA and the TCILA, the question 

is not merely whether a volunteer failed to fulfill his or her duties to the organization 

but whether he or she did so intentionally, willfully, or with conscious indifference. 

See 42 U.S.C. § 14503(a); TEX. CIV. PRAC. & REM. CODE § 84.007(a). 

On appeal, Arnold contends the individual appellees’ declarations were not 

competent summary judgment evidence because they were conclusory. She 

specifically takes issue with the declarations’ contention that the board made all 

decisions during the declarant’s tenure “in accordance with the governing documents 

in place at the time,” that all decisions made by the declarant as an officer were 

“made in good faith,” and that the declarant “exercised ordinary care in carrying out 

[his or her] duties as an officer.” According to Arnold, these conclusory statements 

are not competent summary judgment evidence. 

“A conclusory statement is one that does not provide the underlying facts to 

support the conclusion.” Paragon Gen. Contractors, Inc. v. Larco Const., Inc., 227 

S.W.3d 876, 883 (Tex. App.—Dallas 2007, no pet.). A conclusory affidavit does not 

raise fact issues and is not competent summary judgment evidence. Id.; TEX. R. CIV.
 –33– 

P. 166a(f) (affidavits “shall set forth such facts as would be admissible in evidence”). 

We agree with Arnold regarding the cited statements. 

The declarations contain other statements, however, that are not conclusory 

and support appellees’ summary-judgment motion. For example, Addison stated in 

his declaration, “Before any additional assessments were levied, the Board 

considered the financial needs of the Association and consulted the applicable 

restrictions in determining whether the assessment was permissible and whether the 

assessment needed to be presented to the Members for a vote.” Addison also stated, 

“The determination to increase the annual Maintenance Assessment for 2014 was 

voted on and approved by the Board at the November 21, 2013 Board meeting.5

 The 

Board provided notice of the meeting to Members ten days prior to the meeting. The 

Board meeting, as always, was open to all Members.” The other declarations contain 

similar statements. Additionally, appellees offered other documents, such as the 

2005 Replacement Fund resolution and minutes of board meetings, containing 

evidence of the individual appellees’ conduct while serving as officers. 

Arnold contends on appeal that, even if the individual appellees met their 

summary-judgment burden, she produced evidence raising a fact issue as to whether 

the appellees “knowingly and/or intentionally” violated the 1995 DCCRs and “knew 

5

 The minutes of this meeting reflect the board’s approval of an “operating fund assessment” of $2,700 

“per home” and “a replacement fund assessment of $215.” Although appellees contend these assessments 

were Maintenance Assessments, we have concluded that the “replacement fund assessment” was a Capital 

Assessment. 
 –34– 

or should have known” they were violating the 1995 DCCRs by exceeding the cap 

on Capital Assessments. Relevant to the Capital Assessments, Arnold cites only 

Dixon’s October 16, 2017 memorandum regarding the Association’s 2018 

Operating and Replacement Fund Pre-Final Budget Proposal.6

 In this memorandum, 

Dixon notes that the 2011 adjustment to the Replacement Fund assessment took the 

annual assessment to $26,015. Dixon also notes that such adjustments had been 

made “via capital assessment adjustments . . . . at the sole discretion of the Board” 

under the 1995 DCCRs. As we previously concluded, Dixon’s determination was 

incorrect. This fact alone, however, is no evidence that the individual appellees 

disregarded the 1995 DCCRs provisions intentionally, willfully, or with conscious 

disregard for the rights or safety of others when deciding to adjust the assessments. 

See 42 U.S.C. § 14503(a) (excluding from immunity, “willful or criminal 

misconduct, gross negligence, reckless misconduct, or a conscious, flagrant 

indifference to the rights or safety of the individual harmed by the volunteer”); TEX.

CIV. PRAC. &REM.CODE § 84.007(a) (excluding from immunity, “an act or omission 

that is intentional, wilfully negligent, or done with conscious indifference or reckless 

disregard for the safety of others”). Thus, Dixon’s memorandum is insufficient to 

raise a fact issue as to whether the individual appellees violated the 1995 DCCRs 

intentionally, willfully, or with conscious disregard for the rights or safety of others. 

6

 Having concluded that the trial court properly granted appellees’ motion for summary judgment as to 

Arnold’s other non-declaratory claims, we do not address evidence cited by Arnold regarding these other 

claims. 
 –35– 

See Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007) 

(evidence insufficient to create a fact issue unless “reasonable and fair-minded jurors 

could differ in their conclusions in light of all of the evidence presented”). 

Based on the record before us, we conclude the individual appellees moved 

for and presented sufficient evidence supporting summary judgment on their 

immunity defenses, and Arnold failed to present sufficient evidence to raise a fact 

issue. See Lujan, 555 S.W.3d at 84. Accordingly, we overrule Arnold’s third issue. 

D. Attorney’s Fees 

In her fourth issue, Arnold contends the trial court abused its discretion in 

awarding attorney’s fees to appellees. Arnold specifically asserts she was denied due 

process when the trial court ruled on appellees’ motion for attorney’s fees before the 

deadline for her counteraffidavit; her counteraffidavit raised fact issues regarding 

appellees’ evidence in support of their motion; appellees did not move for summary 

judgment on the fee amount; and appellees failed to produce legally sufficient 

evidence to support the trial court’s fee award. 

Generally, we review a trial court’s award of attorney’s fees for an abuse of 

discretion. See Ridge Oil Co., Inc. v. Guinn Invs., Inc., 148 S.W.3d 143, 163 (Tex. 

2004). Here, appellees sought attorney’s fees under rule of civil procedure 91a and 

section 37.009 of the civil practice and remedies code. Under the version of rule 91a 
 –36– 

applicable to Arnold’s claims,7

 the trial court was required to award “all costs and 

reasonable and necessary attorney fees incurred.” TEX.R.CIV. P. 91a .7, 76 Tex. B.J. 

221, 222 (2013) (Tex. Sup. Ct. 2013, amended 2019). Section 37.009 of the civil 

practice and remedies code gives the trial court discretion in declaratory judgment 

actions to “award costs and reasonable and necessary attorney’s fees as are equitable 

and just.” TEX. CIV. PRAC. & REM. CODE § 37.009. Arnold does not question the 

authority to award attorney’s fees, but the trial court’s procedure and appellees’ 

proof. 

As a preliminary matter, we address Arnold’s contention that appellees’ 

“motion for ‘determination of fees’” did not constitute a motion for summary 

judgment as to the “amount of reasonable and necessary attorney’s fees.” According 

to Arnold, appellees’ motion focused on proving the requested fees were “equitable 

and just,” not “reasonable and necessary.” As previously discussed, we look to the 

substance of the motion to determine the relief sought. See In re Estate of Hutchins, 

391 S.W.3d at 585. The record reflects that appellees’ motion specifically cited 

authority and evidence purportedly establishing appellees’ right to recover 

reasonable and necessary attorney’s fees and the amount of the fees sought. 

7

 The current version of Rule 91a.7 provides that costs and attorney’s fees “may” be awarded to the 

prevailing party. TEX. R. CIV. P. 91a.7. Rule 91a was amended on July 11, 2019. This amendment applies 

only to civil actions commenced on or after September 1, 2019. TEX. R. CIV. P. 91a 2019 cmt. Arnold filed 

her original petition on August 15, 2018. Accordingly, we will apply and cite the 2013 version of Rule 

91a.7 in our discussion of this issue. 
 –37– 

Accordingly, we conclude that appellees moved for summary judgment on the 

amount of reasonable and necessary attorney’s fees. See id. 

After the trial court issued its last order regarding the substantive claims at 

issue, appellees filed a motion on September 27, 2019, for entry of judgment and 

determination of attorney’s fees. Appellees attached to the motion their counsel’s 

affidavit and redacted billing statements. Six days later, on October 3, 2019, the trial 

court issued its final judgment that included an award of attorney’s fees consistent 

with appellees’ motion. Arnold requested findings of fact and conclusions of law on 

October 23, 2019, and filed her motion for new trial and attorney-fee 

counteraffidavit on October 28, 2019—thirty days after appellees moved for 

attorney’s fees. The trial court issued findings of fact and conclusions of law 

regarding the award of attorney’s fees on November 6, 2019. According to Arnold, 

the trial court erred in issuing its final judgment before she was required to file her 

counteraffidavit. We agree. 

Arnold contends that section 18.001 of the civil practice and remedies code 

controls the deadline for filing a counteraffidavit to contest proof of services 

rendered. In civil cases not involving a suit on a sworn account, a party may prove 

that a service was reasonable and necessary by submitting an affidavit in compliance 

with civil practice and remedies code section 18.001. TEX. CIV. PRAC. & REM. CODE
 –38– 

§ 18.001.8

 A party intending to controvert such a claim must “must serve a copy of 

the counteraffidavit on each other party or the party’s attorney of record” no later 

than “30 days after the day the party receives a copy of the affidavit.” Id. § 18.001(e). 

The record reflects that the trial court issued its final judgment only six days after 

appellees filed and served their motion and fee affidavit. Additionally, in its orders 

on Denton’s and Maulsby’s motion to dismiss and the parties’ cross-motions for 

summary judgment on the claims for declaratory relief, the trial court awarded 

attorney’s fees to appellees, ordered appellees to “submit evidence of the fees and 

costs sought,” and stated that Arnold “may respond within 7 days of [appellees’] 

submission.” Thus, the final judgment was issued even before the trial court’s own 

response deadline had expired. On this record, we conclude the trial court abused its 

discretion in ruling on appellees’ motion for attorney’s fees before the response 

deadlines set in section 18.001 and the trial court’s own orders had expired. See 

Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998) (“It is an abuse of discretion for 

a trial court to rule arbitrarily, unreasonably, or without regard to guiding legal 

principles.”).

Appellees contend that even if the trial court erred in ruling before Arnold 

filed her counteraffidavit, any such error was harmless because Arnold was not 

8

 All references to section 18.001 are to the version in effect before the 2019 amendments. In 2019, 

section 18.001 was amended in 2019 to modify the deadlines for filing affidavits. Act of May 20, 2019, 

86th Leg., R.S., ch. 779, § 1, 2019 Tex. Sess. Law Serv. 2210, 2210–12 (amending TEX. CIV. PRAC. &

REM. CODE § 18.001). Because these amendments apply only to actions commenced after September 1, 

2019, id. § 2, they do not apply to this case. 
 –39– 

qualified to controvert appellees’ proof. Alternatively, appellees contend any error 

was cured by the trial court’s consideration of Arnold’s motion for a new trial. 

Appellees maintain that Arnold was not qualified to contest their proof 

because “she retired in 2007 from the practice of law.” The record reflects, however, 

that Arnold retired from her corporate counsel position in 2007 but did not retire 

from the practice of law until 2012.9

 Moreover, appellees only contest Arnold’s 

knowledge of “reasonable and customary rates for attorneys engaged in civil 

litigation in Collin County.” However, Arnold’s counteraffidavit did not contest the 

rates charged by appellees’ counsel. Rather, she contested the reasonableness and 

necessity of the work performed, the failure to segregate recoverable and 

nonrecoverable tasks, the failure to identify the persons performing the tasks and 

their qualifications to justify the rates billed, and the amount of work performed in 

light of the nature of the litigation. Appellees do not contend that the nature of civil 

litigation has changed in these regards over the last ten years such that Arnold would 

not be qualified to opine as to these aspects of appellees’ proof. Accordingly, we 

conclude that Arnold was qualified to testify as to these aspects of appellees’ fee 

motion. See TEX.R. EVID. 702 (an expert qualified “by knowledge, skill, experience, 

training, or education may testify in the form of an opinion” if her “specialized 

knowledge will help the trier of fact to understand the evidence or to determine a 

9

 Arnold reinstated her license in December 2018 to prosecute her claims in this case. 
 –40– 

fact in issue”); Nguyen Ngoc Giao v. Smith & Lamm, P.C., 714 S.W.2d 144, 148 

(Tex. App.—Houston [14th Dist.] 1986, no writ) (“An affidavit by an attorney 

representing a party in a suit, concerning an award of attorney’s fees, whether in 

support of or in contradiction of an amount claimed to be reasonable, is admissible 

in a summary judgment proceeding and is considered expert testimony.”). 

Alternatively, appellees contend that any error in prematurely awarding 

attorney’s fees was cured by Arnold’s motion for new trial and the trial court’s 

subsequent findings of fact and conclusions of law. We have concluded that a trial 

court had an opportunity to consider appellants’ objections to an attorney’s fee award 

“and to modify, correct, or reform the judgment while the motion for new trial was 

pending” on facts similar to those at issue here. Qui Phuoc Ho v. MacArthur Ranch, 

LLC, No. 05-14-00741-CV, 2015 WL 5093273, at *10 (Tex. App.—Dallas Aug. 28, 

2015, pet. denied) (mem. op.). However, we have not held that such an opportunity 

cured any error in prematurely issuing an award of attorney’s fees. See id., at *10–

11 (analyzing both sides’ fee evidence to determine whether trial court abused its 

discretion in awarding fees). We decline to do so here. 

Our review of the record identifies many of the deficiencies in appellees’ 

proof pointed out by Arnold. First, appellees’ fee affidavit recites the affiant’s 

qualifications and experience, but it provides no such information for other attorneys 

or legal assistants identified in the attached billing records. Additionally, the sum of 

the fees represented in the unredacted portions of the billing records does not match 
 –41– 

those requested in appellees’ motion. The billing records also reflect work being 

performed for certain individual appellees before Arnold had served them. 

Specifically, Arnold initially served only Addison, Brown, Bruns, and Dixon. Those 

individual defendants answered and moved to dismiss Arnold’s claims. After the 

trial court dismissed Arnold’s declaratory judgment claim against those defendants, 

and before Arnold filed her amended original petition and served Denton and 

Maulsby, appellees’ billing records reflect work performed for the as-yet unserved 

defendants. 

Moreover, appellees’ affidavit contains conflicting claims regarding the need 

to segregate the fees claims. In one paragraph, the affiant claims that appellees have 

segregated recoverable fees from nonrecoverable fees while also asserting that 

“[s]ome of the time spent” on the claims for declaratory relief “was inextricable 

intertwined with time spent on other claims.” Appellees do not identify which tasks 

were intertwined, explain how they teased out the segregable tasks to arrive at the 

figure requested, or provide an estimate of the amount of time that would have been 

necessary even if there had been no nonrecoverable claim. See Tony Gullo Motors 

I, L.P. v. Chapa, 212 S.W.3d 299, 314 (Tex. 2006) (counsel need not maintain 

separate records for recoverable and nonrecoverable fees; an opinion of the 

percentage of recoverable time is sufficient). 

Finally, although appellees’ affidavit cites the Arthur Andersen factors, see 

Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997), it 
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provides no explanation as to how appellees’ proof meets these factors. See 

Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 502 (Tex. 

2019) (“Sufficient evidence includes, at a minimum, evidence of (1) particular 

services performed, (2) who performed those services, (3) approximately when the 

services were performed, (4) the reasonable amount of time required to perform the 

services, and (5) the reasonable hourly rate for each person performing such 

services.”); Long v. Griffin, 442 S.W.3d 253, 255 (Tex. 2014) (generalities about 

tasks performed are insufficient to determine reasonableness and necessity; 

“[s]ufficient evidence includes, at a minimum, evidence of the services performed, 

who performed them and at what hourly rate, when they were performed, and how 

much time the work required”). Although appellees attached billing records to prove 

the requested fees were reasonable and necessary, the records are so heavily redacted 

that it is impossible to assess the necessity of all tasks for which appellees seek 

recovery. Based on our review of appellees’ proof in light of Arnold’s 

counteraffidavit, we conclude fact issues remain as to the reasonableness and 

necessity of the attorney’s fees appellees requested. See Lujan, 555 S.W.3d at 84. 

Having concluded the trial court erred in issuing final judgment before the 

deadline for Arnold’s counteraffidavit, the error was not harmless or cured, and fact 

issues remain, we sustain Arnold’s fourth issue. 
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CONCLUSION 

On the record before us, we conclude that the board improperly imposed 

Capital Assessments between 2011 and 2017 in violation of the 1995 DCCRs. Thus, 

we sustain Arnold’s first issue solely as to this point. We also conclude that the trial 

court abused its discretion in issuing final judgment awarding attorney’s fees before 

the deadline for Arnold’s counteraffidavit had expired. We further conclude that 

Arnold presented evidence raising a fact issue as to the reasonableness and necessity 

of the fees sought by appellees. Thus, we sustain Arnold’s fourth issue. We overrule 

Arnold’s remaining issues. Accordingly, we reverse the trial court’s judgment as to 

Arnold’s complaint that the individual appellees violated the 1995 DCCRs in 

imposing improper Capital Assessments from 2011 to 2017 and as to the trial court’s 

attorney’s fees award. We affirm the trial court’s judgment in all other respects and 

remand the case to the trial court for a determination of damages as to Arnold’s 

Capital Assessment claim and attorney’s fees. 

200001F.P05 

 

/Robbie Partida-Kipness/

ROBBIE PARTIDA-KIPNESS 

JUSTICE 
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S 

Court of Appeals 

Fifth District of Texas at Dallas 

JUDGMENT 

ANDREA ARNOLD, Appellant 

No. 05-20-00001-CV V. 

RANDY ADDISON, ET AL, 

Appellees 

 On Appeal from the 296th Judicial 

District Court, Collin County, Texas 

Trial Court Cause No. 296-04121-

2018. 

Opinion delivered by Justice PartidaKipness. Justices Myers and Carlyle 

participating. 

 In accordance with this Court’s opinion of this date, the judgment of the trial 

court is AFFIRMED in part and REVERSED in part. We REVERSE that portion 

of the trial court's judgment as to appellant’s claim that the individual appellees 

violated the 1995 DCCRs in imposing improper Capital Assessments from 2011 to 

2017 and as to the trial court’s attorney’s fees award. In all other respects, the trial 

court's judgment is AFFIRMED. We REMAND this cause to the trial court for 

further proceedings consistent with this opinion. 

 It is ORDERED that each party bear its own costs of this appeal. 

Judgment entered this 17th day of December 2021.