Reversed and Remanded in part, Affi rmed in part, and Opinion Filed December 17, 2021 

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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, GU Y 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 home owners’ association and certain past and current association officers. In four issues, Arnold contends the trial c ourt erred in denying her motions for summary judgment, gran ting appellees’ motions to dismiss her declaratory judgment claims, granting a ppellees’ 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.–2– BACKGROUND Arnold’s claims arose from actions take n by officers of the Cambridge Place at Preston Trail Homeowners Association (t he Association) regarding the passage of amended restrictive cove nants and bylaws and the inte rpretation and enforcement of the prior restrictive covenants. Camb ridge Place at Preston Trail (Cambridge Place) is a neighborhood of 121 homes loca ted in a subdivision straddling the border between Dallas and Collin counties. Member ship in the Association is mandatory for all homeowners in Cambridge Place. Arnold moved into Cambridge Place in
1998. In 2013, the Association began cons idering changes to its governing documents. At the time, the Associati on 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 Maul sby, and Patric ia 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 mee ting on February 22, 2017. The notice included a proxy form by which the memb ers could vote on the Amended DCCRs by proxy through the Association’s secretar y, Mary Chaffin. The notice included an additional proxy form by which members coul d appoint a proxy to vote on all other ballot items. Relevant to the issues on appeal, the notice informed members that their–3– proxies “will help fulfill the quorum requ irements” and the meeting would have to be rescheduled if “the quorum of homeowners is not presen t in person or by proxy.” The second proxy form also asked members who were una ble 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 fo rm was received befo re the meeting on February 22, 2017. As planned, the Association held its annual meeting on February 22, 2017. With a quorum of members present, th e vote on the Amended DCCRs was taken. Seventy-six members voted for the amendmen ts 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 me eting. 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 am endments and fifteen votes against. The approval percentage was 69%—above the 67% required to approve the Amended
DCCRs. See T EX

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. C ODE § 209.0041(h) (“a declara tion may be amended only by a vote of 67 percent of the total votes al located to property owners entitled to vote on the amendment of the declaration” unles s the declaration permits approval by less–4– than that amount). The Association ha s been operating under the Amended DCCRs since the vote. Arnold took issue with the means by wh ich the vote was take n and the board’s interpretation of certain provisions of the 1995 DCCRs. Specifi cally, she contended that the 1995 DCCRs and 2004 Bylaws did not permit the members to adjourn the annual meeting and continue the vote. Sh e also contended that the board had misinterpreted the 1995 DCCRs regarding a pproval 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, a nd Guy Dixon. Arnold alleged the defendants had breached the Associati on’s governing documents and violated the Texas Residential Property Owners Prot ection Act (TRPOPA) and chapter 22 of the Texas Business Organizations Code. Ar nold 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 DCCR s, and the members had no authority to continue the vote. The individual defe ndants moved to dismiss Arnold’s claims under rule of civil procedure 91a. According to the individual defe ndants, they were immune from Arnold’s claims under federa l and state statutes protecting volunteers; the TRPOPA does not provide a private ri ght of action against fellow Association members; Arnold failed to plead the existenc e of a contract between herself and the–5– individual defendants; and Arnold could onl y bring her declaratory judgment action against the Association, which was not a part y to the lawsuit. The parties later limited the motions to Arnold’s declaratory judgm ent action. The trial court granted the individual defendants’ motions and dismissed Arnold’s d eclaratory 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 fo r 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 im munity defense. Arnol d responded and filed a motion for summary judgment on her claim that the individual defendants breached the 1995 DCCRs by imposing capital assessm ents above the capped amount and requiring approval of repairs to homeowner s’ property. Arnold also argued that the defendants were not imm une because they knowingly violated the 1995 DCCRs. The trial court granted appellees’ mo tion and denied Arnold’s motion. Appellees filed a motion for entry of ju dgment and attorney’s fees. Six days later, the trial court entered judgment a nd awarded appellees attorney’s fees. Arnold–6– 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 aw ard. Arnold attached her counteraffidavit regarding appellees’ fee request to the moti on. 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 awar d. Arnold’s motion for a new trial was overruled by operation of law, a nd this appeal followed.
ANALYSIS In four issues, Arnold contends the tr ial 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 deni ed Arnold’s motions and granted appellees’ motions. Arnold contends the trial court e rred 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 re viewable, howe ver, when–7– “both sides moved for summary judgment on the same issues and the trial court granted one motion for summary j udgment 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 judgme nt on the parties’ cross-motions for summary judgment, we “deter mine all questions presen ted 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 prove s 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 T EX

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. 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–8– 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.—D allas 2011, pet. denied); T EX

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. P. 166a(a), (c). To conclu sively establish a fact, “t he 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. Mari ne 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 affirm ative defense, the burden shifts to the nonmovant to raise a genuine issue of ma terial 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 au thority 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 interp retation of a restrictive covenant de–9– novo. Tarr v. Timberwood Park Owners Ass’n, Inc. , 556 S.W.3d 274, 279 (Tex. 2018). “[R]estrictive covena nts 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 rest rictive covenant is unambiguo us 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 re strictive covenant does not render it ambiguous.” Id . (quoting Buckner v. Lakes of Somerset Homeowners Ass’n, Inc. , 133 S.W.3d 294, 297 (Tex. A pp.—Fort Worth 2004, pet. denied)). “A paramount concern when construing covenants is giving effect to the objective intent of the drafters of the rest rictive 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 ente red 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 ame nd original restrictive covenants, the instrument creating the original restricti ons must establish both the right to amend–10– 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)). “T o be effective, the amendments must be made in the precise manner provide d 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 provide d 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, th at this requirement is limited by section 209.0041(h) of the property c ode, which permits amendmen t “by a vote of 67 percent of the total votes allocated to property ow ners entitled to vote on the amendment of the declaration” and overrides declara tions requiring a higher percentage. T EX

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. C ODE § 209.0041(h). 1 Thus, the Amended DCCRs coul d only become effective if

1 This subsection applies only to declarations re quiring a vote of more than 67%, such as the 1995 DCCRs. See T EX

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. C ODE §§ 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).–11– 67% of the Association’s members voted for them. Although a ppellees 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 adjournm ent. Section 2.06 states: When a quorum is present at any mee ting 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 term s, however, section 2.06 applies only to “questions” requiring only a majority of members to decide. As previously discussed, amendments to the Associa tion’s governing documents required more than a simple majority. Thus, by its own te rms, section 2.06 did not control the vote on the Amended DCCRs.–12– Even if section 2.06 controlled, it would not preclude the members from continuing the vote, as Arnold contends. Ac cording to Arnold, the section’s use of the word “shall” “creates a duty or oblig ation on Members at a meeting at which there is a quorum present to ‘ decideany 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 th at 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 st ating that a court “shall” sign an agreed child support review order w ithin three days after the order is filed with the district clerk does not render void an order signed after three days). Moreover, Arnold’s interpretati on would result in absurdity. See Kourosh Hemyari v. Stephens , 355 S.W.3d 623, 626–27 (Tex. 2011) (“ [U]nder genera l 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, th e 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–13– covenant, we give the word s the meaning they commonly held when the covenant was written). Arnold further contends that the memb ers 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 mee ting 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 mee ting, “the Members present or represented by proxy shall have the power to adjourn and reconvene the meeting . . . until a quorum shall be presen t or represented.” According to Arnold, this language grants the authority to ad journ a meeting only to a non-quorum because the 1995 DCCRs contain no other language gran ting 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 sec tion 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 secti on’s plain language merely states the percentage of members required to cons titute 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 a ny language in the 1995 DCCRs, and we have–14– found none, indicating that the right to adjourn a meeting is restricted to a nonquorum of members. Arnold contends that even if the memb ers could adjourn the meeting, there was not a quorum at the Marc h 8, 2017 special meeting. T hus, 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 count ed 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 consis tent with section 2.05’s requirement that “[p]roxies must be filed with the Secretar y 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 T EX

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. C ODE § 209.0041(h). Accordingly, based on the record before us, we conclude the Amended DCCRs were properly approved by the Association’s members.–15– 2. Capital Assessments Arnold next contends that the indi vidual appellees breached the 1995 DCCRs by imposing capital assessmen ts above the amount perm itted. Appellees contend that the assessments in que stion were considered main tenance assess ments 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 (‘M aintenance Assessments’)” and “special assessments for capital improvements (‘Cap ital Assessments’).” Section 7.4 stated that Maintenance Assessments were inte nded to “maintain the Common Properties within reasonable standards.” This section also required the board to “set the amount of the Maintenance Assessment that ma y be levied against each Lot for the succeeding year,” limiting increases in the Maintenance Asse ssment to 10% above the prior year’s assessment, unless approv ed by the members. In contrast, section 7.5 stated that Capital Asse ssments 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 judgm ent on her breach-of-covenant claim,–16– Arnold produced the 1995 DCCRs, board memb er correspondence, and the board’s 2005 resolution establishing a Replacement Fund and Replacement Fund Operating Policy, which Brown referenc ed in January 2018 corres pondence with Arnold. On appeal, Arnold cites Brown’s January 20 18 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 Elem ents of our HOA.” Arnold also cites the minutes of a November 2010 board mee ting in which the board increased “assessment attributable to the Replaceme nt and Major Repair Fund” from “$190 to $215 per home.” Appellees contend these “r eplacement fund” a ssessments were not Capital Assessments, but Maintena nce Assessments. We disagree. In 2005, the board adopted a resolu tion 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 majo r expenses so that “current rather than future owners [are charged] wi th the cost of the current us e of assets . . . .” The 2005 Resolution also funded the Replacement F und by transferring asse ts 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, perime ter walls, entrance gates and mechanisms, gate house, greenbelt, str eet lighting and related capital assets .” (emphasis added).–17– The policy also expressly stated that ma intenance expenditures could not be paid from the Replacement Fund. Expenditures for major repairs and replacements of common area site improvements detailed in Exhib it C of the Reserve Fund Study (as periodically updated) shall be expe nsed in the replacement fund.

. . . . Expenditures for routine maintena nce and repairs, inspection and service fees, maintenance contract s and other items, which are not contemplated in Exhibit C of the Reserve Fund Study (as periodically updated), shall be charged agains t expense in the operating fund. Replacing minor parts, lubricating a nd adjusting equipment, repainting, and cleaning are examples of maintenance charges that occur regularly and are treated as ordinary opera ting fund expenses. These items are generally replaced in sma ll, low-cost increments. By echoing the 1995 DCCRs’ reference to “repair and replacement of a capital improvement upon . . . Common Properties” and expressly ex cluding maintenance expenditures, the language of the 2005 Resolution and the Replacement Fund Operating Policy reflects an intent to tr eat the Replacement Fund assessments as Capital Assessments. See URI, Inc. v. Kleberg Cty. , 543 S.W.3d 755, 764 (Tex. 2018) (“We . . . interpret c ontract language according to its plain, ordinary, and generally accepted meaning unless the inst rument directs otherwise.” (internal citation omitted)). Other evidence offered in support of Arnold’s summary-judgment motion further supports this conclusion. Sp ecifically, Arnold cited minutes from a November 9, 2010 board meeting in which th e board voted to raise the “Replacement and Major Repair Fund” asse ssment from $190 to $215 pe r home. Brown recognized–18– this increase in her January 2018 corresp ondence, stating that the 2010 dues increase resulted in the Association “collecting $26,015 annually since 2011.” Addressing the pending 2018 dues increase, Brown c onfirmed the assessme nt was intended to fulfill the Replacement Fund Operating Po licy by “keeping special assessments to a minimum so we can avoid large assessme nts.” She also acknowledged the dues increase addressed increas ed “capital costs.” Arnold offered an October 16, 2017 me morandum from Dixon to the board that also recognized the 2010 dues increase made “the annual assessment . . . $26,015 [$215 per house hold x 121 households].” Dixon further noted, “Traditionally, modifications to Replacement Fund revenue via capital

assessment adjustments were considered coin cident with each 5-year Reserve Study.” (emphasis added). The Replacem ent Fund Operating Policy required the board to make adjustments to annual Repla cement Fund contribu tions based on this periodic Reserve Study, which assessed the “normal and remaining useful lives of the components” of “each majo r element of common property.” Relevant to Arnold’s claim that the boa rd did not obtain member approval to exceed the Capital Assessment cap, Di xon 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 th e Board’s authority to an assessment adjustment of 15% from the prior year , without homeowner approval.” This–19– statement is in direct contrast to sec tion 7.5 of the 1995 DCCRs requiring the board to obtain member approval to ex ceed the Capital Assessment cap. In sum, the 2005 Resolution reflects an inte nt to provide fund ing 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 assessmen ts predating the enactment of the Amended DCCRs were Capita l Assessments and there is evidence that such assessments imposed after 2010 exceeded the $25,000 cap dictated in the 1995 DCCRs. Accordingly, we sustai n Arnold’s first issue with respect to her claim that appellees breached the 1995 DCCRs by ex ceeding 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 DC CRs 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 repa irs to homeowners’ properties. Arnold contends that the individual appellees vi olated the 1995 DCCRs by misinterpreting–20– “repairs” as “alterati ons” requiring approval. 2 Relying on section 8.4 of the 1995 DCCRs, addressing repairs to existing homes, Arnold cont ends that repairs do not require approval because they “must be cons istent with the conditions in place when the improvement was first approved.” Contrary to Ar nold’s assertion, however, section 8.4 does not require repairs to be made in ac cord with initial conditions. Accordingly, it does not support her c ontention that repairs are exempt from approval. Under the heading “Nonconforming and Un approved Improvements,” section 8.4 describes the board’s discretion to requi re an owner to restore improvements to “the condition existing prior to the constr uction thereof” if they were not made according to the 1995 DCCRs’ specificati ons. 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 c onstructed initially in accordance with these Covenants and Restr ictions and having received any necessary approval of the Arch itectural 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, notwithst anding 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.–21– In contrast, if improvements are “totally destroyed or totally replaced,” the “new improvements must conform to the Covenants and Re strictions and the Architectural Guidelines in force at th e 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 me rely permits repairs to be so made. Moreover, there is no language in this prov ision exempting any repair from approval. Regardless, Arnold contends that requi ring approval of repairs exceeds the board’s discretionary author ity. We will uphold the discre tionary authority exercised by a property owner’s associ ation unless we determine “ by a preponderance of the evidence that the exercise of discretionary authority wa s arbitrary, capricious, or discriminatory.” T EX

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. C ODE § 202.004(a). In he r 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 Architectur al Guidelines “in keeping with the overall quality, general architectural style a nd 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 thos e matters for which it is responsible in accordance with these Covenants and Restr ictions.” Regarding approval, the article stated that “[n]o building, structure, pavi ng, pools, fencing, hot tubs or improvement–22– of any nature shall be erecte d, 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 a nd existing landscaping,” “quality of materials,” and “the other standards set forth within this Decl aration or the Archit ectural 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 necessar ily means the ACC’s authority is not restricted to “ new construction and improvemen ts,” as Arnold contends. See Alter , Merriam-Webster, https://www.merriam-webst er.com/dictionary/alter (last visited on Nov. 8, 2021) (defining “a lter” as “to change (somet hing)”). Arnold also asserts that “as long as a homeowner is not changi ng a structure (read altering) but simply maintaining what has already been appr oved (read repairing) the ACC has no authority to review and approve such wo rk.” Arnold does not direct us to any provision other than section 8.4 to suppo rt the contention that the ACC has no authority to review and approve repairs, and we have found n one. 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 co mmunity,” 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 re quire approval of repairs is reasonable and–23– not arbitrary, capricious, or discriminatory. See T EX

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. C ODE § 202.004(a) (requiring courts to uphold a ssociation’s discretionary authority unless exercised arbitrarily, capriciously, or discrimina torily). Additionally, appellees offered declarations of Addison, Brown, Bruns, a nd 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 issu e as to the board’s interpretation of the 1995 DCCRs to require a pproval of repairs. On the record before us, we overrule Arno ld’s first issue as to her declaratory judgment action regarding the validity of the vote on the Ame nded DCCRs and her claim the individual appellees violated the 1995 DCCRs by requi ring 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 A ssessments imposed from 2011 to 2017.
B. Appellees’ Motions to Dismiss Arno ld’s Declaratory Judgment Action In her second issue, Arnold contends th e trial court erred in dismissing her declaratory judgment claim. The indivi dual 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 mo tion 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 we re functionally pleas to the jurisdiction or motion for joinder of an indispensable party.” Alternatively, Arnold contends the trial court erred because ther e was a justiciable controve rsy between herself and the individual appellees. Under rule 91a, “a party may move to dismiss a ca use of action on the grounds that it has no basis in law or fact.” T EX

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. 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 th e claimant to the relief sought.” Id . “A cause of action has no basis in fact if no reasonabl e 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 fact s 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 appe llees raised jurisdictional issues in their Rule 91a motions. According to Arno ld, a party cannot use a Rule 91a motion to challenge the trial cour t’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 becau se it raised a juri sdictional challenge.

the parties informed the trial court they had agreed to limit the motion to Arnol d’s claim for declaratory relief. The trial court granted the motion and dismi ssed 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 a ppeal 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.). Rega rdless, 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 joinde r of a necessary party: the Association. The absence of a necessary party will gene rally 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 gene ral principle and noting that section 37.006 of the Declaratory Judgments Act furt her 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 judgmen t 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 assert ed that “[a]ny claims relating to the–26– validity of the governing documents of the Association would amount to a controversy between member s of the Association and the Association itself.” Accordingly, the individual appellees assert ed that Arnold could not maintain this action against them, and they moved to di smiss the claim. The motions contain no indication that the individual appellees treat ed the Association merely as a necessary party. Based on the record before us, we conclude the motions sought relief permitted under rule 91a. See T EX

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. P. 91a.1 (permitting a party to seek dismissal of a claim that ha s no basis in law or fact). Arnold contends that even if the moti ons 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.” T EX

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. C ODE § 37.002(b). A declaratory judgment is approp riate “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 “rea l and substantial controversy involving genuine conflict of tangible interests a nd not merely a theoretical dispute.” Id

. Arnold’s declaratory judgment action speci fically sought a declaration that “the Governing Documents, as they ex isted prior to the Defendants’ purported–27– adoption of their Proposed Amendments, ar e 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 he r 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 a ttempting to violate them.” The trial court concluded, however, that this provision w ould 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 documen ts. Expounding on the relationship between the governing documents, the Associa tion, 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 be long 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 le gal term – but owned by the homeowners [sic] association.” We agree. The individual appellees asserted in th eir 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 dis pute between her and the Asso ciation because it would be–28– enforceable only as to the individual defe ndants. Indeed, “all pe rsons who have or claim any interest that would be affected by the declaration must be made parties,” and “[a] declaration does not prejudice th e rights of a person not a party to the proceeding.” T EX

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. C ODE § 37.006(a). Thus, any declaratory judgment as to only the individual appe llees would not have prevented the Association from continuing to operate under the Amended DCCRs. Several opinions from this Court and our sister c ourts confirm that a declaratory judgment action to invalidate either governing documen ts 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. A pp.—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 a nd 204.006 of the Property Code and regarding the invalidity of [the ma intenance 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 w ho 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.) (membe r sued association and members seeking declaration that short- term rental provision of association’s governing documents was unenforceable be cause 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 indi vidual 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 indivi dual 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 shoul d have known” they were violating the 1995 DCCRs. Having su stained Arnold’s first issue only with respect to her claim the individual appe llees violated the 1995 DCCRs by exceeding the Capital Assessment cap, we limit our cons ideration 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 su mmary 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 soug ht, 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 a ppellees’ motion for summary judgment to determine whether they m oved 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 declarator y judgment claims, appellees moved for traditional summary judgment on Arnold’s remaining claims. The individual appellees asserted, among ot her grounds, that they were immune from Arnold’s claims under both the federal Volunteer Pro tection Act of 1997 (V PA) and the Texas Charitable Immunity and Li ability Act (TCILA). The VPA protects volunteers of a nonprofit organization from liability “caused by an act or omission of the vol unteer” if “the volunteer was acting within the scope of the volunteer’s respons ibilities 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 volunt eer 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 th e volunteer’s duties or functions, including as an officer, director, or trus tee within the organization.” T EX

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. C ODE § 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); T EX

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. C ODE § 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 “consider ed 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 appe llees’ 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), T EX

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. C ODE § 84.004(a) (protecting volunteers for act s 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 cr iminal 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.” T EX

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. C ODE § 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 w ithin 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 dutie s to the organization but whether he or she did so intentionally, willfully, or with conscious indifference.
See 42 U.S.C. § 14503(a); T EX

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. C ODE § 84.007(a). On appeal, Arnold contends the indivi dual appellees’ declarations were not competent summary judgment evidence be cause they were conclusory. She specifically takes issue with the declarat ions’ contention that the board made all decisions during the declarant’s tenure “i n accordance with the governing documents in place at the time,” that a ll decisions made by the declarant as an officer were “made in good faith,” and thatthe declarant “exercised ordinary care in carrying out [his or her] duties as an officer.” Accord ing to Arnold, these c onclusory statements are not competent summar y judgment evidence. “A conclusory statement is one that does not provide the underlying facts to support the conclusion.” Paragon Gen. Contractors, In c. v. Larco Const., Inc. , 227 S.W.3d 876, 883 (Tex. App.—Da llas 2007, no pet.). A conclu sory affidavit does not raise fact issues and is not comp etent summary judgment evidence. Id .; T EX

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.–33– P. 166a(f) (affidavits “shall set forth such facts as would be admissible in evidence”). We agree with Arnold regard ing the cited statements. The declarations contain other statemen ts, however, that are not conclusory and support appellees’ summary -judgment motion. For example, Addison stated in his declaration, “Before any additiona l assessments were levied, the Board considered the financial needs of the A ssociation and consulted the applicable restrictions in determining whether the assessment was permissi ble and whether the assessment needed to be presented to the Members for a vote.” Addison also stated, “The determination to increase the a nnual Maintenance A ssessment 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 Me mbers 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 minut es 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 eviden ce raising a fact issue as to whether the appellees “knowingly and/or intenti onally” 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 th at the “replacement fund assessment” was a Capital Assessment.–34– or should have known” they were viol ating the 1995 DCCRs by exceeding the cap on Capital Assessments. Relevant to th e 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 th e Replacement Fund assessment took the annual assessment to $26,015. Dixon also no tes that such adjustments had been made “via capital assessment adjustments . . . . at the sole discretion of the Board” under the 1995 DCCRs. As we previously c oncluded, Dixon’s determination was incorrect. This fact alone, however, is no evidence that the individual appellees disregarded the 1995 DCCRs provisions inten tionally, willfully, or with conscious disregard for the rights or safety of othe rs when deciding to adjust the assessments.
See 42 U.S.C. § 14503(a) (exc luding 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”); T EX

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. C ODE § 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”). T hus, Dixon’s memorandum is insufficient to raise a fact issue as to whether the i ndividual appellees violated the 1995 DCCRs intentionally, willfully, or with conscious di sregard 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 ad dress 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 issu e unless “reasonable a nd fair-minded jurors could differ in their conclusions in light of all of the evidence presented”). Based on the record before us, we c onclude the individual appellees moved for and presented sufficient evidence supporting summary judgment on their immunity defenses, and Arnold failed to pr esent 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 th e trial court abused its discretion in awarding attorney’s fees to appellees. Arnol d specifically asserts she was denied due process when the trial court ruled on appellees’ motion for a ttorney’s fees before the deadline for her counteraffidavit; her counte raffidavit raised fact issues regarding appellees’ evidence in support of their mo tion; appellees did not move for summary judgment on the fee amount; and appellees failed to produce legally sufficient evidence to support the tr ial court’s fee award. Generally, we review a trial court’s awar d 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 pract ice and remedies c ode. Under the version of rule 91a–36– applicable to Arnold’s claims, 7 the trial court was require d to award “all costs and reasonable and necessary attorney fees incurred.” T EX

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. P. 91a .7, 76 Tex. B.J. 221, 222 (2013) (Tex. Sup. Ct. 2013, ame nded 2019). Section 37.009 of the civil practice and remedies code gives the trial court discre tion in declaratory judgment actions to “award costs and reasonable and ne cessary attorney’s fees as are equitable and just.” T EX

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. C ODE § 37.009. Arnold does not question the authority to award attorney’s fees, but the trial court’s proc edure and appellees’ proof. As a preliminary matter, we addre ss Arnold’s contention that appellees’ “motion for ‘determination of fees’” did not constitute a motion for summary judgment as to the “amount of reasonable a nd necessary attorney’s fees.” According to Arnold, appellees’ motion focused on provi ng 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 th at appellees’ motion specifically cited authority and evidence purportedly esta blishing 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 atto rney’s fees “may” be awarded to the prevailing party. T EX

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. P. 91a.7. Rule 91a was amended on Ju ly 11, 2019. This amendment applies only to civil actions commenced on or after September 1, 2019. T EX

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. 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 appe llees moved for summary judgment on the amount of reasonable and necessary attorney’s fees. See id

. After the trial court issued its last or der 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. Si x days later, on Oct ober 3, 2019, the trial court issued its final judgment that included an award of attorney’s fees consistent with appellees’ motion. Arnold requested findi ngs of fact and conclusions of law on October 23, 2019, and filed her moti on for new trial and attorney-fee counteraffidavit on October 28, 2019—thir ty 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 j udgment 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 countera ffidavit 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 reasonabl e and necessary by submitting an affidavit in compliance with civil practice and remedi es code section 18.001. T EX

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. C ODE–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 part y 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 declar atory relief, the trial court awarded attorney’s fees to appellees, ordered appe llees to “submit eviden ce of the fees and costs sought,” and stated that Arnold “m ay respond within 7 days of [appellees’] submission.” Thus, the final judgment was i ssued even before the trial court’s own response deadline had expired. On this record , we conclude the tr ial court abused its discretion in ruling on appell ees’ motion for attorney’s fees before the response deadlines set in section 18.001 and the trial court’s own or ders 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, unreason ably, or without regard to guiding legal principles.”). Appellees contend that even if the tria l court erred in ruling before Arnold filed her counteraffidavit, any such e rror was harmless because Arnold was not

8 All references to section 18.001 are to the versi on in effect before the 2019 amendments. In 2019, section 18.001 was amended in 2019 to modify the d eadlines for filing affidavits. Act of May 20, 2019, 86th Leg., R.S., ch. 779, § 1, 2019 Tex. Sess. Law Serv. 2210, 2210–12 (amending T EX

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. C ODE § 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 appelle es’ proof. Alternatively, appellees cont end 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 practi ce of law.” The record reflects, however, that Arnold retired from her corporate c ounsel 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 ra tes for attorneys engaged in civil litigation in Collin County.” Ho wever, 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 iden tify the persons performing the tasks and their qualifications to justify the rates bi lled, and the amount of work performed in light of the nature of the litig ation. Appellees do not conte nd that the nature of civil litigation has changed in these regards over the last ten y ears such that Arnold would not be qualified to opine as to these aspe cts of appellees’ proof. Accordingly, we conclude that Arnold was qualified to testif y as to these aspects of appellees’ fee motion. See T EX

. R. E VID . 702 (an expert qua lified “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 contradic tion 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 mo tion for new trial and the trial court’s subsequent findings of fact and conclusion s of law. We have concluded that a trial court had an opportunity to consider appellant s’ objections to an attorney’s fee award “and to modify, correct, or reform the ju dgment 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 issu ing an award of attorney’s fees. See id ., at *10– 11 (analyzing both sides’ fee evidence to de termine whether tria l 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 provide s no such information for other attorneys or legal assistants identified in the attach ed 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 appell ees 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 he r amended original petiti on 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 paragra ph, the affiant claims that appellees have segregated recoverable fees from nonrecove rable 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–42– provides no explanation as to how a ppellees’ proof meets these factors. See Rohrmoos Venture v. UT SW 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 thos e services, (3) approximately when the services were performed, (4) the reasonabl e amount of time requi red 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 de termine reasonablen ess and necessity; “[s]ufficient evidence includes, at a mini mum, evidence of th e services performed, who performed them and at what hourly ra te, when they were performed, and how much time the work required”). Although a ppellees attached billing records to prove the requested fees were reasonable and nece ssary, 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 a ppellees’ proof in light of Arnold’s counteraffidavit, we conclude fact issu es 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 fi nal judgment before the deadline for Arnold’s counteraffidavit, the e rror was not harmless or cured, and fact issues remain, we sustain Arnold’s fourth issue.–43– CONCLUSION On the record before us, we concl ude 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 fina l judgment awarding attorney’s fees before the deadline for Arnold’s counteraffidavit ha d expired. We furt her conclude that Arnold presented evidence raising a fact i ssue as to the reasonableness and necessity of the fees sought by appell ees. 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 tria l 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–44– 

# 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 appella nt’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 f ees award. In all other respects, the trial court's judgment is AFFIRMED . We REMAND this cause to the trial court for further proceedings consiste nt with this opinion. It is ORDERED that each party bear its own costs of this appeal.
Judgment entered this 17th day of December 2021.