UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

HARMONY HAUS WESTLAKE, LLC, et 

al.,

Plaintiffs,

v.

PARKSTONE PROPERTY OWNERS 

ASSOCIATION, INC.

Defendant.

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Civil Action No. 1:20-CV-486-XR

 

ORDER ON MOTIONS FOR SUMMARY JUDGMENT

On this date, the Court considered Defendant’s motion to exclude the testimony of 

Plaintiff’s expert witness, Dr. Robert Beare (ECF No. 40), Defendant’s motion for partial summary 

judgment (ECF No. 23); Plaintiffs’ motion for summary judgment (ECF No. 43), and the parties’

responses and replies thereto. After careful consideration, the Court issues the following order. 

 BACKGROUND1

This is a dispute between a sober living home and a homeowners association. Plaintiff 

Harmony Haus Westlake, LLC (“Harmony Haus”) operates a “transitional sober living residence”

located at 2105 Real Catorce Drive, Austin, Texas. Plaintiffs Ling Zhou (“Zhou”) and Fenglin Du

(“Du”) own the residence, which is located within the homeowners association operated by 

Defendant Parkstone Property Owners Association, Inc. (“Defendant”). 

1 These facts are undisputed unless otherwise noted. 

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I. The First Lawsuit (1:19-CV-1034-XR)

This is not the parties’ first time before this Court. In October 2019, Plaintiffs filed an 

action against Defendant, complaining that Parkstone had refused to grant a reasonable 

accommodation from its deed restrictions, in violation of the Fair Housing Act, 42 U.S.C. § 3601, 

et seq. (“FHA”). See Harmony Haus Westlake, LLC v. Parkstone Prop. Owners Ass’n, Inc., No. 

1:19-CV-1034-XR (the “First Lawsuit”), ECF No. 1. At issue in that case were three deed 

restrictions (collectively, the “Declaration”): a single-family use restriction, a noise and nuisance 

restriction, and a twelve-hour street parking restriction. Plaintiffs requested from Defendant an 

exemption from “any applicable HOA covenant, rule, or regulation relating to any restriction that 

would otherwise impede [Harmony Haus’s] operations so that its residents can be provided an 

equal opportunity to use and enjoy their housing.” Specifically, Plaintiffs sought for Defendant to 

allow up to twelve residents to live at the home and for eight cars to park on the street. In response, 

Defendant offered to allow up to six unrelated adults to live at the home. 

A bench trial was held on January 6 and 7, 2020, after which the Court issued its Findings 

of Fact and Conclusions of Law. See Harmony Haus Westlake, LLC v. Parkstone Prop. Owners 

Ass’n, Inc., 440 F. Supp. 3d 654 (W.D. Tex. 2020). First, the Court found that the residents were 

“handicapped” as defined under the FHA because their “addictions substantially limit their ability 

to live independently and to live with their families,” and their inability to live independently 

constitutes a substantial limitation on their ability to ‘care for themselves.’” Id. at 663. Second, the 

Court found that the requested accommodation was necessary in that Plaintiffs showed the 

accommodation would “directly ameliorate” the disability’s effect. Id. at 665–66. The Court found 

persuasive Plaintiffs’ arguments that the accommodation of twelve residents was necessary for the 

residents to benefit from the home’s phasing system and to benefit from the increased 

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accountability, structure, and support inherent in a larger number of residents. Id. at 666. The Court 

did not, however, find that Plaintiffs had shown the accommodation was financially necessary. Id. 

Third and finally, the Court found that Plaintiffs met their burden of showing that the requested 

accommodation was reasonable in that the accommodation did not impose upon Defendant an 

“undue financial and administrative burden” and did not constitute a “fundamental alteration” to 

the character of the neighborhood. Id. at 667. The Court agreed with other federal courts who 

“have made clear that single family deed restrictions cannot be used to exclude group homes for 

disabled persons from single family neighborhoods.” Id. at 668 (citing United States v. Wagner, 

940 F. Supp. 972, 979 (N.D. Tex. 1996) (collecting cases)). 

As a result of those findings, the Court granted Plaintiffs’ request for injunctive relief and

ordered that: 

Defendant is enjoined from further refusing to make a reasonable accommodation 

that is necessary to afford Plaintiffs an equal opportunity to use and enjoy a 

dwelling. Consequently, Defendant is enjoined from enforcing its Declaration 

against Plaintiffs, but solely with respect to the single-family housing restriction, 

Section 2.1. 

Id. at 669 (emphasis in original). The Court explicitly did not enjoin Defendant from enforcing its 

other restrictions at issue—the noise/nuisance and parking provisions—finding that Defendant

“may enforce those if there are violations, though any such enforcement must be applied in an 

evenhanded manner that treats handicapped and non-handicapped residents alike.” Id. The Court 

noted that: 

[n]othing here suggests that Harmony Haus residents have free reign to violate any 

provisions of the Declaration. Each resident is expected to know all relevant deed 

restrictions—including the parking and noise restrictions—and strictly adhere to 

them. Parkstone, in turn, is entitled to demand such strict adherence and, of course, 

may enforce the Declaration through its own enforcement mechanisms. 

Id. 

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II. The Second Lawsuit (1:20-CV-486-XR)

Plaintiffs’ First Amended Complaint in this case—Plaintiffs’ second action against 

Parkstone—alleges that the dispute has worsened amidst the coronavirus pandemic and the various 

shelter-in-place ordinances imposed by state and local governments. The dispute is no longer about 

the number of residents at Harmony Haus but about the enforcement of Defendant’s parking 

restrictions, particularly during a pandemic which, Plaintiffs allege, has made compliance with 

those restrictions difficult if not practically impossible.

On March 3, 2020, two weeks after this Court issued its final judgment in the prior case, 

the Parkstone Board unanimously approved changes to the rules and bylaws that included an 

escalating fine structure for violation of the Declaration. ECF No. 42-14. With respect to parking 

violations, the new enforcement scheme provides for an optional courtesy warning, followed by 

fines escalating in “daily/weekly or one-time” increments by $25, $50, $100, $125, and then 

increasing in $25 increments for each additional notice. Id. at 6. The Board eventually capped the 

fines at $300 per violation. ECF No. 42-1. Defendant also enacted a new deed restriction 

preemptively disallowing any reasonable accommodation request with respect to the single-family 

use restriction for any residence within 1,000 feet of Harmony Haus. ECF No. 42-14 at 9.

Plaintiffs assert that Defendant imposed these new rules and enforcement schemes “for the 

specific purpose of targeting Plaintiffs and individuals with disabilities in general.” ECF No. 8. In 

support, Plaintiffs allege that prior to the Court’s issuance of final judgment in the previous case, 

Defendant made little effort to enforce the then-existing parking restrictions, “such that its postjudgment enforcement efforts clearly arose as a response to the judgment.” Id. ¶ 2. Plaintiffs further 

allege that a “barrage of profanity” and “facially discriminatory remarks by [Parkstone] Board 

members” further reveal intentional discrimination and retaliation. Id. ¶ 12.

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Soon after Defendant imposed the new fine structure and began sending violation notices, 

the coronavirus pandemic arose. Plaintiffs assert that, after the City of Austin issued its shelter-inplace order on March 24, 2020, Harmony Haus residents “could not go to work or engage in any 

other activity outside the residence” (unless expressly permitted by the shelter-in-place order) and 

that residents “could not take any measures” to move their vehicles off the street to avoid violating 

Defendant’s street-parking restriction. Id. ¶ 7. 

On March 31, 2021, Plaintiffs sought an accommodation from Defendant, requesting a 

waiver of the twelve-hour street-parking restriction during the course of the shelter-in-place order. 

Defendant allegedly “countered with an offer to allow four vehicles to park on the street during 

the pendency of the order, but only if the driveway and garage were fully utilized at all times.” Id. 

¶ 11. This would require Plaintiffs to have eight cars parked in the driveway and garage at all 

times, meaning if one resident removed his car from the driveway, another resident would have to 

move his car from the street to keep the driveway at maximum “occupancy” before any street 

parking beyond twelve hours would be permissible. Plaintiffs countered that they could not “(1) 

keep eight vehicles in the driveway and garage . . . or (2) move all the vehicles in and out of the 

driveway every time a resident has to leave,” pointing to the fact that residents may be working 

from home or in meetings and “cannot rush outside to move cars around at any given moment” 

and to Defendant’s concern in the previous litigation that the noise involved in moving cars in and 

out of the driveway was bothersome to neighbors. Id.

Plaintiffs filed this lawsuit on May 5, 2020, alleging violations of the Fair Housing Act. 

Specifically, Plaintiffs asserted four claims under the FHA: (1) discrimination in the sale or rental, 

or otherwise making unavailable, a dwelling because of a disability, in violation of 42 U.S.C. § 

3604(f)(1); (2) discrimination in the terms, conditions, or privileges of a dwelling, or in the 

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provision of services or facilities in connection with that dwelling, in violation of § 3604(f)(2); (3) 

refusal to make a reasonable accommodation in violation of § 3604(f)(3)(B); and (4) intimidation, 

threat, or interference with the exercise or enjoyment of a right protected by the FHA, in violation 

of § 3617.

Plaintiffs filed a motion for a temporary restraining order and preliminary injunction, 

seeking to enjoin Defendant from enforcing its parking restriction against Harmony Haus (or 

collecting fines imposed on the basis of such violations) “until further order of this Court.” ECF

No. 2 at 16. After a hearing on May 12, 2020, this Court denied Plaintiffs’ motion, finding that 

Plaintiffs had not shown that they would suffer irreparable injury. See Text Order, May 12, 2020.

On May 11, 2020, Parkstone filed a Motion to Dismiss the First Amended Complaint (ECF 

No. 11). Thereafter, on June 10, Plaintiffs filed a second motion for a temporary restraining order, 

alleging that they now faced irreparable harm because Plaintiffs Zhou and Du expressed an 

intention to evict Plaintiff Harmony Haus from the property if the violations continued. ECF No.

13. At a hearing on June 17, 2020, the Court denied that motion, finding that Plaintiffs had not 

demonstrated a substantial likelihood of success on the merits. See Text Order, June 17, 2020. 

This Court issued its Order granting in part and denying in part Parkstone’s Motion to 

Dismiss on June 23, 2020. ECF No. 19. Therein, the Court found that Plaintiffs failed to plead a 

plausible claim of intentional discrimination under § 3604(f)(1), disparate treatment under § 

3604(f)(2), or failure to accommodate under § 3604(f)(3)(B), and dismissed those claims. Id. at 8–

18. Specifically, the Court concluded that Plaintiffs had not plausibly alleged that the new fine 

structure was imposed “because of a handicap”—rather than as a result of their repeated parking 

violations—as required to state a claim for discrimination under the FHA. Id. at 10, 14. Plaintiffs 

also failed to establish that the requested accommodation—a blanket exemption from the twelveCase 1:20-cv-00486-XR Document 56 Filed 11/23/21 Page 6 of 35
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hour parking rule—was necessary, but merely showed that the parking restrictions were 

“inconvenient.” Id. at 16. However, the Court found that Plaintiffs had stated a claim for retaliation

under § 3617 and denied Defendant’s motion to dismiss that claim. Id. at 18–22.

On July 6, 2020, Parkstone filed an Answer and Counterclaim against Plaintiffs, and an 

Amended Answer and Counterclaim on October 7, 2020 (ECF No. 35), asserting claims for breach 

of contract (along with a claim for attorneys’ fees and costs) and civil damages under Texas 

Property Code § 202.004 in the amount of $200 per day for each day of parking violations.

III. The Fifth Circuit’s Ruling on the First Lawsuit (issued on May 18, 2021)

Defendant appealed the Court’s findings in the First Lawsuit, and Plaintiffs appealed the 

Court’s denial of attorneys’ fees. See First Lawsuit, ECF Nos. 31, 33 (docketed as Case Number 

20-50185 and 20-50208). The cases were argued in December 2020. On May 18, 2021, the Fifth 

Circuit Court of Appeals issued a mandate affirming in part and reversing in part the Court’s Final 

Judgment in that case. Harmony Haus Westlake, LLC v. Parkstone Prop. Owners Ass’n., 851 F.

App’x. 461 (5th Cir. 2021). The Fifth Circuit concluded that Harmony Haus had not demonstrated 

that its requested accommodation was necessary under the FHA and thus was not entitled to 

attorneys’ fees awarded to a prevailing party. The Fifth Circuit further found that Parkstone’s 

counterclaims were not waived and that Parkstone provided “some evidence” of violations of the 

parking and noise restrictions that formed the basis of those counterclaims. Id. at 467. Finally, it 

remanded and directed this Court to rule on Parkstone’s request for attorneys’ fees under the Texas 

Property Code and to enter an order enjoining Plaintiffs from violating the Declaration. Id. at 468. 

Parkstone filed a motion to amend the judgment in accordance with the Fifth Circuit’s 

mandate. First Lawsuit, ECF No. 38. After a hearing, the Court granted Parkstone’s motion and 

concluded that Parkstone was entitled to $6,000 in attorneys’ fees. See id., ECF No. 46. In 

Case 1:20-cv-00486-XR Document 56 Filed 11/23/21 Page 7 of 35
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accordance with the Fifth Circuit’s mandate, the Court found that Parkstone did not waive its 

breach of contract claim and that the evidence at trial showed violations of the restrictive 

covenant’s parking and noise provisions, and enjoined Plaintiffs from violating the parking 

restrictions. See id., ECF No. 46 (noting that Parkstone’s motion to amend the judgment, ECF No. 

38, had been granted in part in open court at the hearing and further awarding attorneys’ fees); 

ECF No. 47 (memorializing and clarifying the Court’s previous orders). 

IV. The Instant Motions

Both sides now move for summary judgment. Parkstone moves for summary judgment on 

the basis that (1) there is no stand-alone claim for retaliation under the FHA as a matter of law; 

and (2) no reasonable person could conclude based on the undisputed facts that Parkstone’s actions 

were taken in retaliation for Harmony Haus’s protected conduct (i.e., there is no causation as a 

matter of law). In support of this second argument, Parkstone also contends that (1) much of the 

conduct Harmony Haus complains of (such as Parkstone’s use of cameras to document violations, 

a board member’s use of profane language, and notes on residents’ cars) are not sufficiently 

adverse to qualify as retaliation; (2) the temporal connection between the protected activity 

(requested accommodation in October 2019) and the adverse action in March 2020 is too remote 

and the parking enforcement changes came after parking violations increased and traditional 

methods of enforcement were unsuccessful; and (3) Parkstone had a legitimate non-retaliatory 

reason—to persuade Harmony Haus and other residents to follow the rules—that was not 

pretextual and Parkstone did not engage in differential treatment on parking violations.

Plaintiffs move for partial summary judgment with respect to the damages components of 

Parkstone’s counterclaims. With the escalating fee structure now in place, Parkstone has assessed 

fines “reach[ing] the six figures,” relating to over 1,000 alleged parking violations since the 

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conclusion of the first trial. ECF No. 43-10 at 6; ECF No. 42 at 9 (citing ECF No. 42-2, Ex. A). 

Plaintiffs contend that although Parkstone asserts claims for breach of contract and Texas Property 

Code § 202.004, it has “consistently limited the calculation of its claimed damages to a summation 

of the fines it has imposed” and “associated statutory damages under the Texas Property Code,” 

and “makes no reference to any specific actual damages suffered and offers no calculation of such 

damages. ECF No. 43 at 4. Plaintiffs thus argue that Defendant “has no viable mechanism for 

recovering the damages it has calculated” because it has no evidence of any actual damages. Id.

Plaintiffs argue that “Texas law does not permit Defendant to use the intervention of this Court as 

a mechanism to collect punitive fines through the causes of action it has asserted without a showing 

of actual damages.” Id. at 5.

Parkstone also seeks to exclude the testimony of Dr. Robert Beare, Plaintiffs’ expert in 

substance abuse treatment, as unreliable under Rule 702 of the Federal Rules of Evidence. 

Specifically, Parkstone asserts that Dr. Beare’s testimony concerning the potentially fatal 

consequences of terminating Harmony Haus memberships based on parking violations lacks a 

scientifically valid foundation because Dr. Beare is not familiar with the medical histories of the 

Harmony Haus residents and is further barred by the doctrine of collateral estoppel. See ECF Nos. 

45, 51. Because the Court’s Rule 702 analysis clarifies the scope of the parties’ remaining claims, 

the Court will first address Defendant’s Daubert motion before proceeding to the parties’ crossmotions for summary judgment.

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 ANALYSIS

I. Motion to Strike Expert Testimony 

A. Legal Standards

Rule 702 of the Federal Rules of Evidence allows a witness “who is qualified as an expert” 

to testify if:

a) the expert’s scientific, technical, or other specialized knowledge will help 

the trier of fact to understand the evidence or to determine a fact in issue;

b) the testimony is based on sufficient facts or data;

c) the testimony is the product of reliable principles and methods; and

d) the expert has reliably applied the principles and methods to the facts of the 

case.

FED. R. EVID. 702. The Supreme Court’s decision in Daubert v. Merrell Dow Pharms., Inc., 509 

U.S. 579 (1993), provides the analytical framework for determining the admissibility of expert 

testimony. Daubert requires the district courts to act as “gatekeepers” to ensure expert testimony 

meets Rule 702’s standards. Id. at 589. As a preliminary matter, a district court “must be assured 

that the proffered witness is qualified to testify by virtue of his ‘knowledge, skill, experience, 

training, or education.’” United States v. Cooks, 589 F.3d 173, 179 (5th Cir. 2009) (quoting FED.

R. EVID. 702). If the expert is qualified, a court must follow Daubert’s analytical framework to 

ensure “that an expert’s testimony both rests on a reliable foundation and is relevant to the task at 

hand.” Daubert, 509 U.S. at 597.

The reliability inquiry entails a preliminary assessment of whether the reasoning or 

methodology underlying the testimony is scientifically valid and can be properly applied to the 

facts in issue. Id. at 592–93. The test for determining reliability is flexible and can adapt to the 

particular circumstances underlying the testimony at issue. Kumho Tire Co. v. Carmichael, 526 

Case 1:20-cv-00486-XR Document 56 Filed 11/23/21 Page 10 of 35
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U.S. 137, 150 (1999). The point of this inquiry “is to make certain that an expert, whether basing 

testimony upon professional studies or personal experience, employs in the courtroom the same 

level of intellectual rigor that characterizes the practice of an expert in the relevant field.” Id.

The relevance inquiry requires the Court to determine if expert testimony will “assist the 

trier of fact to understand the evidence or to determine a fact in issue.” Daubert, 509 U.S. at 591. 

“Evidence is relevant if . . . it has any tendency to make a fact more or less probable than it would 

be without the evidence; and the fact is of consequence in determining the action.” FED. R. EVID. 

401.

Notwithstanding the testing of an expert’s qualification, reliability, and admissibility, “the 

rejection of expert testimony is the exception rather than the rule.” FED.R. EVID. 702, Adv. Comm. 

Notes (2000). A trial court’s role as gatekeeper under Daubert “is not intended to serve as a 

replacement for the adversary system.” Pipitone v. Biomatrix, Inc., 288 F.3d 239, 250 (5th Cir. 

2002) (citing Rule 702 advisory committee’s note). Thus, in determining the admissibility of 

expert testimony, the court should approach its task “with proper deference to the [factfinder]’s 

role as the arbiter of disputes between conflicting opinions.” Viterbo v. Dow Chem. Co., 826 F.2d 

420, 422 (5th Cir. 1987). “Vigorous cross-examination, presentation of contrary evidence, and 

careful instruction on the burden of proof are the traditional and appropriate means of attacking 

shaky but admissible evidence.” Daubert, 509 U.S. at 596. 

B. Application

Plaintiffs have designated Dr. Beare as an expert provider of clinical services at substance 

abuse treatment centers, with extensive knowledge of the disabilities, characteristics, and 

circumstances of residents of sober living communities such as Harmony Haus. See ECF No. 37 

at 1. Based on his knowledge and experience, Dr. Beare is anticipated to testify that:

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(1) Harmony Haus accepts residents in its sober living residences who often have dual 

diagnoses with other conditions beyond Substance Abuse Disorder, including, but 

not limited to severe depression, such that they present recovery complications 

beyond those that most sober living residences are often willing to take on;

(2) such residents will often encounter difficulties in the recovery process that will 

require particularly intensive interventions to prevent relapse, such that, for periods 

of time often exceeding twelve hours, neither those residents nor those working 

with them can attend to parking issues; and 

(3) the strict enforcement of parking policies by Harmony Haus against such an 

individual by terminating the membership of the individual in the sober living 

residence because of parking violations could have potentially fatal consequences 

and is not a reasonable response to the circumstances.

Id. at 1–2. 

The Court does not doubt that Dr. Beare is qualified to testify on these matters “by virtue 

of his ‘knowledge, skill, experience, training, or education.’” Cooks, 589 F.3d at 179 (5th Cir. 

2009) (quoting FED. R. EVID. 702). He holds a master’s degree in clinical psychology and a 

doctorate in industrial/organizational psychology and is a Licensed Professional Counselor 

Supervisor. Id. at 7. Dr. Beare has worked in addiction treatment in various capacities for over 

twenty years. See id. at 5–7. He has served as the director of multiple substance abuse treatment 

programs and facilities. See id. In those roles, he developed clinical programming and curriculum, 

trained and supervised dozens of other clinicians, and designed program policies and procedures. 

See id. 

Defendant challenges Dr. Beare’s qualifications to testify concerning the potentially fatal 

consequences of terminating Harmony Haus memberships for repeated parking violations because 

“he [has] no knowledge about the medical [] histories of people in the [] home to evaluate what 

impact ending memberships would have on such residents.” ECF No. 40 at 5. “Unlike an ordinary 

witness, an expert is permitted wide latitude to offer opinions, including those that are not based 

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on firsthand knowledge or observation. Presumably, this relaxation of the usual requirement of 

firsthand knowledge . . . is premised on an assumption that the expert’s opinion will have a reliable 

basis in the knowledge and experience of his discipline.” Daubert, 509 U.S. at 592 (internal 

citations omitted). Experts may base their opinions on inferences properly drawn from scientific 

facts. See id. (applying the term “knowledge” to “any body of known facts or to any body of ideas 

inferred from such facts or accepted as truths on good grounds.”) (citing Webster’s Third New 

International Dictionary 1252 (1986)) (emphasis added). Indeed, “trained experts commonly 

extrapolate from existing data,” so long as they “explain how and why” they have extrapolated the 

data. Joiner, 522 U.S. at 144−46. 

Despite his qualifications, however, it does not appear to the Court that Dr. Beare’s 

testimony will “assist the trier of fact to understand the evidence or to determine a fact in issue.” 

Daubert, 509 U.S. at 591. That is, Dr. Beare’s proposed testimony concerning the clinical reasons

for Harmony Haus’s failure to enforce its own, internal parking policy against its members is not 

relevant to any of the claims that remain to be tried in this case—Plaintiffs’ claim for retaliation 

under § 3617 of the FHA and Defendant’s counterclaims for breach of contract and for damages 

under Section 202.004 of the Texas Property Code. 

Together, the Court’s order on Defendant’s motion to dismiss this action, ECF No. 19, and 

the final resolution of the first action, see First Lawsuit, ECF Nos. 29, 37, 38-1, 46, 47,significantly 

narrow the scope of this litigation, which centers on the enforceability of Parkstone’s newly 

adopted fine structure—not the enforceability of the underlying parking restrictions. Plaintiffs’ 

attempts to challenge the parking restrictions on the basis of their disability have uniformly failed. 

See ECF No. 19 at 13 (dismissing Plaintiffs’ claims of intentional discrimination, disparate 

treatment, and failure to accommodate under 42 U.S.C. § 3604(f)(1)–(3) in connection with 

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Parkstone’s recent enforcement efforts and noting that “Defendant decided to strictly enforce its 

parking restrictions—as this Court made clear Defendant could do”); Harmony Haus, 440 F. Supp. 

3d at 669 (declining to enjoin Parkstone from enforcing the parking rules and cautioning that 

“[e]ach resident is expected to know all relevant deed restrictions—including the parking and noise 

restrictions—and strictly adhere to them.”); First Lawsuit, ECF No. 37 at 17 (remanding the case 

for further proceedings consistent with this opinion, “including the district court’s enjoining

Harmony Haus from violating the declaration.”).

As a practical matter, this Court has never entered an injunction directing Harmony Haus 

to comply with its own, internal parking policy, which contemplates terminating the memberships 

of residents who habitually violate the parking rules. ECF No. 42-12 at 2. Instead, pursuant to the 

Fifth Circuit’s order in the first lawsuit, this Court merely enjoined Plaintiffs from violating the 

parking restrictions set forth in the Declaration. See First Lawsuit, ECF No. 37, 38-1, 46, 47. 2

Thus, the only question concerning Harmony Haus’s conduct now before the Court is whether it 

complied with the deed restrictions, not with its own policies concerning membership 

termination.3 Because the Court concludes that Dr. Beare’s proposed testimony is not relevant to 

the issues that remain to be tried in this action, it is inadmissible.4 Daubert, 509 U.S. at 591; FED.

2 The Court observes that, as an alternative to membership termination, Harmony Haus could adopt any 

number of policy solutions to address its parking problem without violating the permanent injunction issued in the 

first action. It could impose its own fines, for example, or assign household chores based on parking violations, or 

permit one of the residents to move cars as needed. 

3 As discussed below, there is reason to doubt the accuracy of some of the alleged parking violations that 

Defendant has identified since adopting the new fee structure. 

4 Addressing Parkstone’s argument that Harmony Haus is estopped from offering testimony about the 

consequences of membership termination, the parties dispute whether Dr. Beare’s proposed testimony constitutes a 

new opinion or “merely an extension of his earlier trial testimony” in the First Lawsuit. ECF No. 49. Regardless of

whether Dr. Beare’s opinion is “new” or not, it is simply not “relevant to the task at hand.” Daubert, 509 U.S. at 597.

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R. EVID. 401. Accordingly, Defendant’s motion to exclude Dr. Beare’s testimony (ECF No. 40) is 

granted.

II. Cross-Motions for Summary Judgment

A. Legal Standard

The Court shall grant summary judgment if the movant shows that there is no genuine 

dispute as to any material fact and the movant is entitled to judgment as a matter of law. FED. R.

CIV. P. 56. To establish that there is no genuine issue as to any material fact, the movant must 

either submit evidence that negates the existence of some material element of the non-moving 

party’s claim or defense, or, if the crucial issue is one for which the non-moving party will bear 

the burden of proof at trial, merely point out that the evidence in the record is insufficient to support 

an essential element of the non-movant’s claim or defense. Little v. Liquid Air Corp., 952 F.2d 

841, 847 (5th Cir. 1992), on reh’g en banc, 37 F.3d 1069 (5th Cir. 1994) (citing Celotex Corp. v. 

Catrett, 477 U.S. 317, 323 (1986)). 

Once the movant carries its initial burden, the burden shifts to the nonmovant to show that 

summary judgment is inappropriate. See Fields v. City of S. Hous., 922 F.2d 1183, 1187 (5th Cir. 

1991). Any “[u]nsubstantiated assertions, improbable inferences, and unsupported speculation are 

not sufficient to defeat a motion for summary judgment,” Brown v. City of Houston, 337 F.3d 539, 

541 (5th Cir. 2003), and neither will “only a scintilla of evidence” meet the nonmovant’s burden. 

Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). Rather, the nonmovant 

must “set forth specific facts showing the existence of a ‘genuine’ issue concerning every essential 

component of its case.” Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 

1998). The Court will not assume “in the absence of any proof . . . that the nonmoving party could 

or would prove the necessary facts” and will grant summary judgment “in any case where critical 

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evidence is so weak or tenuous on an essential fact that it could not support a judgment in favor of 

the nonmovant.” Little, 37 F.3d at 1075. 

For a court to conclude that there are no genuine issues of material fact, the court must be 

satisfied that no reasonable trier of fact could have found for the nonmovant, or, in other words, 

that the evidence favoring the nonmovant is insufficient to enable a reasonable jury to return a 

verdict for the nonmovant. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In 

making this determination, the court should review all the evidence in the record, giving credence 

to the evidence favoring the nonmovant as well as the “evidence supporting the moving party that 

is uncontradicted and unimpeached, at least to the extent that evidence comes from disinterested 

witnesses.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 151 (2000). The Court “may 

not make credibility determinations or weigh the evidence” in ruling on a motion for summary 

judgment, id. at 150, and must review all facts in the light most favorable to the nonmoving party. 

First Colony Life Ins. Co. v. Sanford, 555 F.3d 177, 181 (5th Cir. 2009). 

B. Application 

1. Plaintiffs’ Claim for Retaliation under §3617 of the FHA

Parkstone’s motion for summary judgment as to Plaintiffs’ claim for retaliation under the 

FHA, ECF No. 42, largely recycles the legal arguments the Court rejected in its order on 

Parkstone’s motion to dismiss rather than addressing any evidence obtained through discovery. Cf.

ECF No. 19 at 18–22. The Court will briefly address these arguments here in the interest of clarity 

and completeness but observes that they are no more persuasive at this phase of litigation in light 

of the summary judgment record. 

Parkstone first argues that Plaintiffs’ claim under 42 U.S.C. § 3617 must be dismissed 

because there is no stand-alone claim for retaliation under the FHA as a matter of law. ECF No. 

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42 at 15–16. As the Court noted in its order on Parkstone’s motion to dismiss, however, a 

retaliation claim may survive even if there is no plausible discrimination claim. ECF No. 19 (citing

Wilson v. Wilder Balter Partners, Inc., No. 13-CV-2595, 2015 WL 685194, at *12 (S.D.N.Y. Feb. 

17, 2015); Oxford House v. City of Baton Rouge, 932 F. Supp. 2d 683, 701 (M.D. La. 2013)

(“Because the regulations indicate that retaliation for making a complaint under the FHA is 

unlawful conduct in itself, . . . there is no requirement that the complainant prove underlying 

discrimination”). The defendant may take the same adverse action in retaliation for a plaintiff’s 

FHA-protected activity while still not taking it because of the plaintiff’s handicap.

It is worth noting—because it is easy to overlook—that the protections afforded under § 

3617 extend beyond prohibiting retaliation for “protected activities” such as requesting an 

accommodation or filing a complaint or lawsuit. Section 3617 makes it “unlawful to coerce, 

intimidate, threaten, or interfere with any person in the exercise or enjoyment of” any right 

separately protected by the FHA. 42 U.S.C. § 3617; see also Evans v. Tubbe, 657 F.2d 661 (5th 

Cir. 1981). Evans is instructive. There, the plaintiff, Evans, who was Black, purchased a piece of 

property that was accessible only by a road that passed through land owned by Tubbe. Tubbe 

installed a metal gate across the road and locked the gate, preventing Evans from reaching and 

using her property. Evans alleged that Tubbe gave a key to the gate to all of the white people who 

owned property along the road, but refused to give a key to Evans. She further alleged that, on 

account of her race, Tubbe threatened, intimidated, and harassed her, which made her afraid to use 

and enjoy her property—a right protected under the FHA. The Fifth Circuit confirmed that 

“[u]nder the facts as alleged, the plaintiffs have stated arguably valid, federally-justiciable Fair 

Housing Act claims pursuant to 42 U.S.C. §§ 3604 and 3617.” Evans v., 657 F.2d at 663 n.3; see 

also Hill v. River Run Homeowners Ass’n, Inc., 438 F. Supp. 3d 1155, 1183–84 (D. Idaho 2020)

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(“River Run construes protected activity too narrowly, arguing that conduct predating the . . . HUD 

complaint is irrelevant to the Hills’ retaliation claim and therefore not actionable. However, the 

retaliation claim is based upon the Hills’ desire to enjoy their home free from familial status 

discrimination, and there is evidence the Hills exercised their right to do so prior to the filing of 

their HUD complaint.”).

A plaintiff’s claim under § 3617 may rise and fall with a claim arising under another section 

of the FHA where both claims are premised on the same right or discriminatory motive. In Evans, 

for example, a finding that Tubbe’s refusal to allow Evans to access her property was not racially 

motivated would likely have been fatal to her claim that he threatened, intimidated, and harassed 

her “because of” her race. Cf. Hood v. Pope, 627 F. App’x 295, 300 (5th Cir. 2001)) (dismissing 

the plaintiffs’ claim under § 3604 for failing to plausibly allege that a management company’s 

initial denial of an apartment was racially discriminatory and dismissing their § 3617 claim failing 

to properly allege that the harassment they endured was connected to their rights under the FHA).5

In short, whether a claim under § 3617 can stand alone depends on both the facts surrounding the

defendant’s coercive, intimidating, or threatening conduct and the substance of the right the 

plaintiff enjoys (or seeks to enjoy) under the FHA. 

Here, the Court agreed that Plaintiffs failed to plausibly allege that Parkstone’s 

“interference” with their enjoyment of their residence—in adopting the new fine structure and 

enforcement mechanisms—occurred “because of” their handicap, in violation of their rights to 

5 Hood’s holding is somewhat opaque because the factual underpinnings for the § 3617 claim asserted by the 

plaintiffs in that case, who were proceeding pro se, were not entirely clear. It is possible that Hood stands for the 

proposition that courts should dismiss § 3617 claims premised on improperly pled violations of other FHA rights. 

That guidance, however, would be inapplicable here given this Court’s previous finding that Defendant did engage in 

discrimination under the FHA in its refusal to make a reasonable accommodation. Harmony Haus, 440 F. Supp. 3d at

667–69. Although the Fifth Circuit ultimately concluded that the requested accommodation was not necessary, 

Plaintiffs undoubtedly “stated a claim” for a plausible violation of the FHA in the First Lawsuit—the purported basis 

for Parkstone’s retaliatory conduct. Hood, 627 F. App’x at 300. 

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enjoy their property free from discrimination under §§ 3604(f)(1) and (f)(2) of the FHA. See ECF 

No. 19 at 8–14. But these are not the only rights that the FHA secures. The FHA also prohibits 

retaliation in connection with a protected activity, which includes “oppos[ition] [to] any act or 

practice made unlawful by this chapter or because such individual made a charge, testified, 

assisted, or participated in any manner in an investigation, proceeding, or hearing under this 

chapter.” 42 U.S.C. § 12203(a). Both requesting a reasonable accommodation and filing a lawsuit 

in pursuit thereof constitute protected activities. Oxford House, 932 F. Supp. 2d at 700 (citing 

Gonzalez v. City of New York, 354 F. Supp. 2d 327, 340 (S.D.N.Y. 2005) (filing lawsuit is a 

protected activity for a retaliation claim)); Chavez v. Aber, 122 F. Supp. 3d 581, 599 (W.D. Tex. 

2015) (requesting reasonable accommodation is a protected activity for a retaliation claim). Thus, 

Plaintiffs have engaged in at least two protected activities that could serve as a basis for a freestanding retaliation claim under § 3617. 

Next, the Court turns to Defendant’s argument that no reasonable trier of fact could 

conclude that its actions were taken in retaliation for Harmony Haus’s protected conduct. Here, 

Defendant mounts a piecemeal attack on the summary judgment evidence, apparently hoping to 

subject Plaintiffs’ retaliation claim to death by a thousand cuts. That strategy is best reserved for 

trial, however, as it conflicts with the Court’s obligations in assessing a motion for summary 

judgment—to view the evidence in the light most favorable to the non-moving party and to refrain 

from weighing evidence and making credibility determinations. Reeves, 530 U.S. at 150; Figueroa 

v. KK Sub II, LLC, 289 F. Supp. 3d 426, 442 (W.D.N.Y. 2018) (analysis of causation in the pretext 

context is “particularly poorly suited to disposition by summary judgment, because it requires 

weighing of the disputed facts”—not just “a determination that there is no genuine dispute as to 

material fact.”). Parkstone’s compartmentalized approach to the evidence is also contrary to the 

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broad, remedial purpose of the FHA. The FHA is a “clear pronouncement of a national 

commitment to end the unnecessary exclusion of persons with handicaps from the American 

mainstream,” and “[g]eneralized perceptions about disabilities and unfounded speculations about 

threats to safety are specifically rejected as grounds to justify exclusion.” Groome Res., Ltd., L.L.C. 

v. Parish of Jefferson, 234 F.3d 192, 201 (5th Cir. 2000) (quoting H.R. REP. 100–711, at 18 (1988), 

reprinted in 1988 U.S.C.C.A.N. 2173, 2179). In general, the language of the FHA is “broad and

inclusive” and its terms must be given a generous construction to adhere to the statute’s remedial 

scope. Trafficante v. Metro. Life Ins. Co., 409 U.S. 205, 209 (1972); Francis v. Kings Park Manor, 

Inc., 944 F.3d 370, 376 (2d Cir. 2019). 

In that vein, a claim under this section is not limited to circumstances involving “potent 

force or duress,” but rather “extends to other actors who are in a position directly to disrupt the 

exercise of enjoyment of a protected right and exercise their powers with a discriminatory animus.” 

Texas v. Crest Asset Mgmt. Inc., 85 F. Supp. 2d 722, 732–33 (S.D. Tex. 2000). In analyzing § 

3617, “‘interference’ has been broadly applied to reach all practices which have the effect of 

interfering with the exercise of rights under federal fair housing laws.” Walker v. City of Lakewood, 

272 F.3d 1114, 1129 (9th Cir. 2001).

Defendant asserts that “[m]uch of the conduct Harmony Haus complains about is not 

sufficiently adverse to constitute retaliation.” ECF No. 42 at 16. But the new fine schedule and 

“six figures” of parking fines imposed on Harmony Haus in the span of less than a year are—to 

the extent that they were motivated by Plaintiffs’ protected activities—clearly materially adverse 

to Plaintiffs’ rights under the FHA. Defendant cannot plausibly argue otherwise, as the use of the 

word “much” appears to concede. See ECF No. 42 at 16. Thus, while the Court agrees that certain 

of the activities described in Plaintiffs’ complaint and summary judgment briefing do not rise to 

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the level of material adversity required to independently establish a retaliation claim, such conduct 

is still relevant insofar as it bears on Parkstone’s motives. This conduct includes, for example, a 

Parkstone board member’s use of profanity in addressing Harmony Haus’s owner. Such behavior 

likely falls into the category of “petty slights, minor annoyances, and simple lack of good manners”

that are not actionable retaliatory conduct in the employment context.6 Burlington N. & Santa Fe 

Ry. Co. v. White, 548 U.S. 53, 68 (2006); see also Kromenhoek v. Cowpet Bay W. Condo. Ass’n, 

77 F. Supp. 3d 454, 459–60 (D.V.I. 2014) (“Even reading Section 3617 broadly, in order to account 

for less obvious but still illegal discrimination, unfortunate skirmishes between neighbors are not 

made unlawful. Even discriminatory statements exchanged between neighbors do not necessarily 

violate Section 3617.”) (citations omitted) (citing Bloch v. Frischholz, 587 F.3d 771, 783 (7th Cir.

2009) and Sheikh v. Rabin, 565 F. App’x 512, 517–18 (7th Cir. 2014)). Nonetheless, evidence of 

Board members’ hostility toward Harmony Haus is relevant to the extent that it sheds light on 

Parkstone’s motives in adopting the new enforcement scheme. See, e.g., Austin v. Town of 

Farmington, 826 F.3d 622, 630 (2d Cir. 2016) (noting that a retaliation claim brought under § 3617 

requires “a showing of a particular state of mind, i.e., a retaliatory motive”).

Defendant likewise asserts that its installation of cameras targeted at Harmony Haus is not 

materially adverse because the cameras were required to collect evidence of parking violations. 

ECF No. 42 at 17–18 (“an occasional drive-by . . . would not be sufficient to determine if a 12-

hour violation had occurred”). Parkstone also argues that its surveillance system does not target 

Harmony Haus specifically because the cameras “cover a broad stretch of the neighborhood that 

6 “Retaliation claims brought pursuant to [§ 3617] are analyzed under the same standards that are applied to 

retaliation claims brought under Title VII and other employment discrimination statutes.” Chavez v. Aber, 122 F. 

Supp. 3d 581, 599 (W.D. Tex. 2015) (citing Texas v. Crest Asset Mgmt. Inc., 85 F. Supp. 2d 722, 733 (S.D. Tex. 

2000)); see also Holt v. JTM Indus., Inc., 89 F.3d 1224, 1229 (5th Cir. 1996) (noting the “strong similarities” between 

the language, design, and purposes of Title VII and the [FHA]”).

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includes ten houses.” Id. at 17. Plaintiffs dispute this characterization of the camera placement, 

arguing that, to the extent the cameras capture other residences, it is only because they fall within 

the frames of cameras trained on Harmony Haus. See ECF No. 48 at 8–9; see also ECF No. 46-6,

Chen Dep. at 49:17–50:9 (explaining that, even though parking problems elsewhere in the 

neighborhood were reported, the cameras were never adjusted to cover different areas). Some 

courts have concluded that this kind of increased surveillance does constitute an adverse action 

sufficient to establish a claim for retaliation. See, e.g., Cooper v. W. & S. Fin. Grp., Inc., 847 F. 

Supp. 2d 1031, 1039 (S.D. Ohio 2012) (“The specific actions [the defendant real estate developer] 

is alleged to have committed include photographing residents without their permission and falsely 

accusing the residents of engaging in criminal activity and other inappropriate behavior. These 

actions could be construed as intimidating, harassing and threatening to the residents”); Walker, 

272 F.3d at 1129 (finding retaliation under § 3617 where, in part, the city “supervised [the plaintiff] 

more closely than it had before”). Whether the camera surveillance is an “adverse action” within 

the meaning of the FHA will depend on whether it “might well have dissuaded a reasonable worker 

from making or supporting a charge of discrimination.” Burlington N. & Santa Fe Ry. Co., 548 

U.S. at 68 (citation and internal quotation marks omitted). Regardless of whether the cameras can 

support an independent basis for a claim under § 3617, however, the evidence suggesting that they 

have been deployed against Harmony Haus disproportionately may offer evidence of Parkstone’s 

motives for adopting the new enforcement measures. 

Defendant next asserts that Plaintiffs’ protected activities—filing the First Lawsuit and 

requesting an accommodation—were too remote in time from the adoption of the fine structure to 

indicate a causal connection. ECF No. 42 at 18–20. Plaintiff filed its complaint in the First Lawsuit 

on October 22, 2019. See First Lawsuit, ECF No. 1. The Court issued its Findings of Fact and 

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Conclusions of Law approximately four months later, on February 18, 2020. First Lawsuit, ECF 

No. 29. The Parkstone Board approved the new fine structure on March 3, 2020. ECF No. 42-14. 

In its order on Defendant’s motion to dismiss, the Court concluded that Defendant’s adoption of a 

new enforcement scheme “[o]nly two weeks after this Court issued its judgment for Plaintiffs in 

the prior case” raised the possibility that the actions were taken in response to Plaintiffs’ protected 

activities. ECF No. 19 at 20 (citing Chavez, 122 F. Supp. 3d at 600 (finding that two weeks between 

an FHA-protected activity and an adverse action was “sufficient to state that a causal connection 

exists between the protected activity and the adverse action”)).

Defendant now argues that that “[t]he Court’s judgment is not a protected activity” for the 

purposes of measuring temporal proximity. ECF No. 42 at 18. Defendant’s argument relies on an 

overly rigid construction of both protected activities and temporal proximity.7 More importantly, 

however, given the other evidence of Defendant’s retaliatory motive described herein, the Court 

need not rely exclusively on temporal proximity in assessing the causal connection between 

Plaintiffs’ protected activity and Parkstone’s adverse action. Accordingly, it would be 

inappropriate to grant summary judgment on the basis of temporal proximity alone.

7 Plaintiffs’ protected activity in filing the complaint in the First Lawsuit was clearly a but-for cause of the 

Court’s original judgment against Defendant. The protections against retaliation for filing a complaint would appear 

to the Court to be somewhat illusory if they could never extend to a plaintiff’s activities in prosecuting the case that 

she initiated in filing the complaint. See Lloyd v. Presby’s Inspired Life, 251 F. Supp. 3d 891, 905 (E.D. Pa. 2017) 

(“Defendants do not cite any cases supporting their assertion that a retaliation claim cannot be based on ongoing 

antagonism that begins prior to the allegedly protected activity and increases after the protected activity.”); see also 

Hill, 438 F. Supp. at 1183–84 (“[The defendant] construes protected activity too narrowly. . . .”).

The Court does not suggest that any adverse action taken during the pendency of or shortly after the resolution of legal 

proceedings should constitute prima facie evidence of retaliation. See Swanson v. Gen. Servs. Admin.110 F.3d 1180, 

1188 (5th Cir.) (“[T]he mere fact that some adverse action is taken after an employee engages in some protected 

activity will not always be enough for a prima facie case. . . . If timing alone were enough, any adverse action taken 

against [the plaintiff] after [the filing of her EEOC complaint], no matter how justified, could be sustained as 

discriminatory.”) (emphasis added). But again, there is no bright-line rule, nor should there be—it is a fact-specific 

inquiry. See Reyes v. Fairfield Props., 661 F. Supp. 2d 249, 266 (E.D.N.Y. 2009) (“The adverse action need not occur 

immediately following the protected activity, and there is no bright line outer limit to the time; the inquiry is whether 

a reasonable juror could conclude that the action was taken because of the protected activity.”).

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In assessing whether a defendant’s actions were retaliatory, a court may consider whether 

the temporal proximity between the request for an accommodation and the defendant’s allegedly 

retaliatory behavior is “sufficient to state that a causal connection exists between the protected 

activity and the adverse action.” Chavez, 122 F. Supp. 3d at 600 (citing Cox v. Phase III, Invs., 

No. H-12-3500, 2013 WL 3110218, at *10 (S.D. Tex. June 14, 2013)). There is no bright-line rule 

in the Fifth Circuit for determining whether the time between the protected activity and the 

allegedly retaliatory conduct is too remote. See Shirley v. Chrysler First, Inc., 970 F.2d 39 (5th 

Cir. 1992) (declining to hold that the passage of fourteen months between the filing of the 

plaintiff’s EEOC complaint and the date of termination was “legally conclusive proof against 

retaliation”); Evans v. City of Houston, 246 F.3d 344, 354 (5th Cir. 2001) (noting that “a time lapse 

of up to four months has been found sufficient” evidence of a causal connection). 

“Consideration of such dates is part of our analysis, but not in itself conclusive of our 

determinations of retaliation,” especially where there is other evidence of retaliatory intent.

Shirley, 970 F.2d at 40. Cf. Lyons v. Katy Indep. Sch. Dist., 964 F.3d 298, 306 (5th Cir. 2020)

(“Because Lyons fails to provide more than the nine-month temporal proximity, she fails to

establish a prima facie case of retaliation arising out of being switched from coaching track to 

coaching tennis.”) (emphasis added); Roberson v. Alltel Info. Servs., 373 F.3d 647, 656 (5th Cir.

2004) (“Without more than timing allegations . . . summary judgment in favor of [the defendant] 

was proper.”). 

In addition to verbal hostility toward Harmony Haus exhibited by several Board members 

and the camera surveillance described above, Plaintiffs offer other evidence that Parkstone’s 

motives were retaliatory. Specifically, Plaintiffs note that Defendant began issuing violation letters 

and assessing fines without providing any evidence or information about when and how the 

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parking rules were violated until June 2020 (ECF No. 48 at 7, 12), and suggest that many of the 

alleged violations were not, in fact, violations. ECF No. 8 at 8.8 They also cite the new deed 

restriction forbidding any requested accommodation from the group-home restriction for houses 

within 1,000 feet of Harmony Haus as evidence that Parkstone adopted the new enforcement 

scheme with impermissible motives. 

Parkstone insists that it adopted the new enforcement scheme for a legitimate, nondiscriminatory reason: “to persuade Harmony Haus and other residents to follow the rules when 

the existing method had failed.” ECF No. 42 at 20–21. “There was no need for more than a simple 

system of fines before Harmony Haus,” Defendant argues, “because violations never continued 

and escalated as they have with Harmony Haus.” Id. at 6. But Parkstone’s own spreadsheet of 

violations shows a single parking violation by Harmony Haus in the time between its arrival in 

September 2019 and the adoption of the new enforcement provisions in May 2020. See ECF No. 

42-1 at 8. The recorded violation by Harmony Haus appears to have been reported (along with 

parking violations at seven other addresses) on December 13, 2019, less than two months after the 

complaint was filed in the First Lawsuit and eleven days after Defendant filed its answer and 

counterclaim in that action. Additionally, while Parkstone maintains that its enforcement has been 

even-handed, it has also conceded—in defending its camera surveillance of Harmony Haus and 

nearby residences—that “an occasional drive-by . . . would not be sufficient to determine if a 12-

hour violation had occurred. ECF No. 42 at 17–18. It is unclear how Defendant is monitoring 

8 The summary judgment record suggests that there is ample reason to doubt the accuracy of Parkstone’s 

records of parking violations. For example, multiple violations in one log are recorded as having occurred in the future. 

See, e.g., ECF No. 42-2 at 62–65 (indicating nearly 100 parking violations at the Harmony Haus property in the month 

of December 2021, which the Court observes has not yet arrived as of the date of this order.). Even if the Court were 

to accept that those dozens of misdated entries constituted mere typos, the discrepancies do not end there. In many 

other instances, it appears that fines were recorded in the spreadsheet before the date of the alleged parking violations. 

See id. at 64 (reflecting multiple $300-fines issued on December 7, 2020, for violations that allegedly occurred on 

December 25, 202[0]).

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residences that do not appear on the cameras, which casts some doubt on the basis for Parkstone’s 

contention that “Harmony Haus receives more notices than anyone else, but only because it 

violates the rules more than anyone else.” ECF No. 42 at 12. 

In sum, Plaintiffs engaged in activities protected by the FHA—requesting a reasonable 

accommodation and filing suit thereon. Defendant enacted a new enforcement scheme with an 

escalating fine structure, and the temporal proximity between the protected activities and that 

adverse action that—taken together with other evidence of hostility toward Harmony Haus 

residents and evidence that Defendant’s asserted reason for adopting the new fine structure was 

pretextual—creates a genuine fact issue as to whether that action was taken in retaliation for the 

protected activities. Viewing the evidence in the light most favorable to Plaintiffs, the Court 

concludes that a reasonable jury could find that the adverse action was taken because of Plaintiffs’ 

FHA-protected activities. Accordingly, Parkstone’s motion for summary judgment (ECF No. 42) 

on Plaintiffs’ claim of retaliation under § 3617 is denied.

2. Parkstone’s Counterclaims for Damages

Plaintiffs move for partial summary judgment with respect to Parkstone’s counterclaims 

for damages based on Harmony Haus’s parking violations. ECF No. 43. Parkstone seeks damages 

for breach of contract in the form of fines “reach[ing] the six figures” imposed under the new fine 

structure, ECF No. 43-10 at 6, and exemplary damages in the amount of $200 per day for each day 

violations existed pursuant to § 202.004 of the Texas Property Code. Plaintiffs assert that because 

Parkstone has failed to present any evidence of actual damages, it cannot recover damages under 

TEX. PROP. CODE § 202.004 or in the form of the accrued fines, which, without evidence of actual 

damages, constitute impermissible penalties under Texas common law and the U.S. Constitution. 

ECF Nos. 43, 50. Parkstone responds that Plaintiffs’ attacks on the fine structure are barred, or at 

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least limited, by the doctrines of collateral estoppel and waiver. The Court will address these 

alleged procedural bars before reaching the merits of Plaintiffs’ motion for partial summary 

judgment. 

Parkstone contends that Plaintiffs had an opportunity to challenge Parkstone’s enforcement 

mechanisms during the First Trial and that their failure to do so sets a floor of $50 per violation—

the threatened fine under the previous enforcement scheme—based on the principles of collateral 

estoppel. See ECF No. 45 at 4–5. The doctrine of collateral estoppel “preclude[s] relitigation of 

the same issue already litigated against the same party in another case involving virtually identical 

facts.” United States v. Stauffer Chem. Co., 464 U.S. 165, 169 (1984). To determine whether 

collateral estoppel applies, the Court considers whether: 

(1) the issue under consideration is identical to that litigated in the 

prior action; (2) the issue was fully and vigorously litigated in the 

prior action; (3) the issue was necessary to support the judgment in 

the prior case; and (4) there is [any] special circumstance that would 

make it unfair to apply the doctrine. 

Baros v. Tex. Mexican Ry. Co., 400 F.3d 228, 232–33 (5th Cir. 2005) (quoting Winters v. Shamrock 

Chem. Co., 146 F.3d 387, 391 (5th Cir. 1998)). Other safeguards include whether the facts and 

legal standards used to assess them are the same in both proceedings, whether a new determination 

is warranted by differences in the procedures employed in the two courts, and whether judicial 

review of the first proceeding was available. Id. at 233. 

Parkstone’s collateral estoppel argument fails for a variety of reasons, not the least of which 

is fairness. Given the Court’s conclusion after the trial in the First Lawsuit that Parkstone had 

waived its claim for breach of contract, Plaintiffs can be excused for failing to raise a defense 

against a claim that appeared to have been abandoned. See Harmony Haus, 440 F. Supp. 3d at 669 

n.12 (“In addressing its counterclaims, Parkstone concedes that the ‘the predominant remedy’ it 

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seeks is injunctive relief and that the ‘main focus’ is whether the FHA permits Plaintiffs to have 

twelve unrelated residents.”). Moreover, Parkstone never sought damages from Harmony Haus for 

parking violations in the form of unpaid fines in the First Lawsuit, evidently because Parkstone 

had never imposed any such fines.9 Harmony Haus had no reason or duty to attack the 

enforceability of a fine it had never incurred. And although Parkstone described its damages as 

“noise, nuisance, traffic, safety, and aesthetic concerns” in its post-trial briefing, ECF No. 25 at 

10, it did not include an award based on those damages in its proposed amended judgment 

following the Fifth Circuit’s mandate. See ECF No. 38-2. In short, the Court cannot agree with 

Parkstone that the potential $50 parking fine was “fully and vigorously litigated” or that it was 

“necessary to support the judgment” in the prior action. Baros, 400 F.3d at 232–33. Thus, the 

enforcement provisions in place during the First Lawsuit do not set a floor for Parkstone’s damages 

in this case. 

Parkstone also argues that Plaintiffs waived their challenge to the fines as illegal penalties

by failing to raise it an affirmative defense. See ECF No. 45 (citing ECF No. 29). In their answer

to Parkstone’s counterclaim for breach of contract, Plaintiffs assert that “the fines imposed by 

Defendant exceed the statutory limits imposed under the applicable statutory provisions” and that 

“the fines imposed exceed constitutional limits.” ECF No. 29 ¶ 29. Parkstone suggests that there 

is some disconnect between the common law nature of its breach of contract claim and the statutory 

nature of Plaintiffs’ defense. See ECF No. 45 at 11 (“Parkstone’s breach of contract claim is not a 

‘statutory’ claim and the other defenses do not indicate Plaintiffs are arguing the fines are penalties 

and not liquidated damages on the breach of contract claim.”). But such caps on damages apply to 

9 Parkstone appears to concede that the only fine imposed prior to the First Lawsuit was levied against another 

of its community members in connection with an architectural violation that occurred in 2014. ECF No. 42-1 at 5.

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both statutory and common law claims. See, e.g., Zorrilla v. Aypco Constr. II, LLC, 469 S.W.3d 

143, 157 (Tex. 2015) (construing Section 41.008 of the Texas Civil Practice and Remedies Code 

and noting that “[t]hough certain types of claims are excluded from the statute’s application, the 

statutory cap applies automatically to claims not expressly excepted.”). 

Courts have generally held that parties need not plead statutory caps on punitive damages 

as affirmative defenses because, as part of a statutory scheme, they cannot be the source of unfair 

surprise. See, e.g., id. (“Because the statutory cap on exemplary damages automatically applies 

and its scope is delineated by statute, there is little concern that plaintiffs will be genuinely 

surprised by its application in any given case.”); Giles v. Gen. Elec. Co., 245 F.3d 474, 492 (5th 

Cir. 2001) (“[A] plaintiff cannot have suffered unfair surprise in the invocation of the cap, so the 

cap should not be waivable as a defense.”). Likewise, “the defense of penalty is not waived by the 

failure to plead it if it is apparent on the face of the petition and established as a matter of law. 

Enforcement of a penalty, like enforcement of an illegal contract, violates public policy.” Phillips 

v. Phillips, 820 S.W.2d 785, 789–90 (Tex. 1991). 

Here, the references to “statutory limits” and “constitutional limits” on punitive damages 

were sufficient to give Parkstone notice of Plaintiffs’ position that the fines were in fact penalties. 

See id.; see also FED. R. CIV. P. 8(c); Rogers v. McDorman, 521 F.3d 381, 385 (5th Cir. 2008) (an 

affirmative defense must be pled “with enough specificity or factual particularity to give the 

plaintiff ‘fair notice’ of the defense that is being advanced.”) (internal citation omitted); see Dyson 

v. Stuart Petroleum Testers, Inc., No. 1-15-CV-282 RP, 2015 WL 4935527, at *2 (W.D. Tex. Aug. 

18, 2015) (evaluating affirmative defense under a notice-pleading standard and noting that courts 

in the Fifth Circuit have differing views on the question of whether affirmative defenses are subject 

to the heightened pleading standard enunciated in Bell Atlantic v. Twombly, 550 U.S. 544, (2007) 

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and Ashcroft v. Iqbal, 556 U.S. 662 (2009)). Moreover, the defense of penalty is apparent on the 

face of Defendant’s counterclaim, which indicates that the fines vary “depending on the severity 

and type of violation.” See Uptegraph v. Sandalwood Civic Club, 312 S.W.3d 918, 937 (Tex.

App.—Houston [1st Dist.] 2010, no pet.) (concluding that damages “unrelated to the type or extent 

of injury or harm caused by the violation” were “punitive rather than compensatory”) (emphasis 

added) (citing Flores v. Millennium Interests, Ltd., 185 S.W.3d 427, 433 (Tex. 2005)). Thus, the 

Court holds that Plaintiffs did not waive their defense that the fines are an unenforceable penalty. 

Even if the Court were to reach the opposition conclusion, however, Plaintiffs’ waiver of 

the penalty argument would not immunize the fine structure from judicial scrutiny. Courts 

“carefully review liquidated damages provisions to ensure that they adhere to the principle of just 

compensation’” applicable to claims for breach of contract.10 Atrium Med. Ctr., LP. v. Hous. Red 

C LLC, 595 S.W.3d 188, 192 (Tex. 2020) (citing Stewart v. Basey, 150 Tex. 666, 670, 245 S.W.2d 

484, 486 (1952)). Although Texas favors freedom of contract, “[t]he basic principle underlying 

contract damages is compensation for losses sustained and no more.” FPL Energy, LLC v. TXU 

Portfolio Mgmt. Co., 426 S.W.3d 59, 69 (Tex. 2014). Accordingly, “[l]iquidated damages must 

not be punitive, neither in design nor operation.” Id. Parkstone bears the burden of proving that 

the fines are enforceable as liquidated damages. Atrium Med. Ctr., LP. v. Hous. Red C LLC, 595 

S.W.3d 188, 192 (Tex. 2020) (“The party seeking to enforce a liquidated-damages clause bears 

the burden to prove the clause is valid.”).

10 “A restrictive covenant is a contractual agreement.” Ski Masters of Tex., LLC v. Heinemeyer, 269 S.W.3d 

662, 668 (Tex. App.—San Antonio 2008, no pet.)). Plaintiffs assert that they “never entered into a contract that 

included the escalating fine amounts Defendant seeks to collect.” ECF No. 43 at 7. This argument is unavailing, 

however, because the Declaration—to which Plaintiffs did agree by purchasing a residence subject to the Parkstone 

deed restrictions—clearly empowers the Parkstone Board to enforce the deed restrictions. See First Lawsuit, ECF No. 

3-2 at 19–20, 26. 

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To enforce a liquidated damages provision, “the court must find: (1) that the harm caused 

by the breach is incapable or difficult of estimation, and (2) that the amount of liquidated damages 

called for is a reasonable forecast of just compensation.” See Phillips, 820 S.W.2d at 788. “[E]ven 

when liquidated-damages provisions are ‘properly designed’ under those two criteria, they are still 

unenforceable when ‘the actual damages incurred were much less than the liquidated damages 

imposed, measured at the time of the breach.’” Hanover Ins. Co. v. Binnacle Dev., LLC, 493 F. 

Supp. 3d 585, 591 (S.D. Tex. 2020) (quoting Atrium Med. Ctr., 595 S.W.3d at 192–93). While the 

question whether a liquidated damages provision is enforceable is a question of law, “sometimes . 

. . factual issues must be resolved before the legal question can be decided.” See Phillips, 820 

S.W.2d at 788 (citations omitted). “For example, to show that a liquidated damages provision is 

unreasonable because the actual damages incurred were much less than the amount contracted for, 

a defendant may be required to prove what the actual damages were.” Id. 

As to the first element, the parties do not appear to dispute that the harm caused by the 

parking violations is incapable or difficult of estimation. Instead, Plaintiffs challenge that 

Parkstone has failed to proffer any competent evidence of actual damages that could support its 

the claim for liquidated damages: 

During the discovery period, Defendant has consistently limited the 

calculation of its claimed damages to a summation of the fines it has 

imposed. . . . Even in its verified Responses to Plaintiffs’ Interrogatories, 

dated November 12, 2020, and never supplemented during the remainder of 

the discovery period, Defendant calculates its damages exclusively in terms 

of fines and associated statutory damages under the Texas Property Code. 

It makes no reference to any specific actual damages suffered and offers no 

calculation of such damages.

ECF No. 43 at 4 (citations omitted). Given Parkstone’s failure to offer evidence of its actual 

damages, Plaintiffs argue, it cannot demonstrate that any amount of liquidated damages would be 

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“a reasonable forecast of just compensation.” Phillips, 820 S.W.2d at 788. 

There certainly are reasons to doubt that Parkstone’s fines can be enforced as liquidated 

damages. First, the fines appear to be untethered to “the type or extent of injury or harm” caused 

by the parking violations. See Uptegraph, 312 S.W.3d at 937. As Plaintiffs observe, the fines 

increase “not on the basis of any expected increase in damages, but in an attempt to add to the 

penalty in an effort to encourage compliance.” ECF No. 50 at 7. Defendant imposes the same fine 

whether a vehicle is parked in the same location for mere minutes or for several hours beyond the 

twelve hours permitted. See, e.g., ECF No. 42-2 at 42–43 (assessing the same fine of $200 for a 

vehicle that allegedly parked for two minutes beyond the twelve hours allowed (May 20, 2020,

9:48 pm – May 21, 2020, 9:50 am) as for a vehicle that allegedly remained for eleven hours and 

fifty-two minutes over the allowable time (May 26, 2020, 2:09 pm – May 27, 2020, 2:01 pm)).

Likewise, it is unclear how a parking violation of less than an hour on July 28, 2020 caused twelve 

times more harm to Parkstone as a violation of over six hours that occurred on March 16, 2020. 

See ECF No. 42 at 48 (imposing a $300 fine on a black Chevy Tahoe for parking from July 27, 

2020, 10:31 pm – July 28, 2020, 11:08 am); id. at 32 (imposing a $25 fine on a black Chevy Tahoe 

for parking from March 15, 2020, 2:38 pm – March 16, 2020, 8:26 am). Moreover, Parkstone’s 

own summary judgment briefing indicates that the fine structure is punitive rather than 

compensatory. See ECF No. 42 at 11 (“[T]he Parkstone Board . . . created an escalating fine 

structure to discourage repeat offenders”); ECF No. 45 at 9 (“Because [parking] violations are 

comparatively less severe (but still should not occur), the dollar amounts of the fines are less.”).

Nonetheless, the Fifth Circuit identified “some evidence at trial” in support of Parkstone’s 

claim for breach of contract in the First Lawsuit, based on the same damages alleged in this 

action—“increased safety issues, higher traffic congestion on the street . . ., a diminution of value 

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of the neighborhood’s property rights, and loss of the aesthetic and residential character of the 

neighborhood.” Compare ECF No. 21 with First Lawsuit, ECF No. 10. Given the Fifth Circuit’s 

ruling on the breach of contract claim in the previous action, the Court cannot conclude that 

Parkstone has failed to establish any damages as a matter of law. Moreover, the escalating nature 

of the fine structure means that the fines imposed on Plaintiffs have varied over time. Thus, the 

Court cannot determine whether the fines are reasonable as a whole, but must consider the fines 

individually. The Court’s task at trial will be to assess Parkstone’s actual damages in connection 

with the parking violations in order to determine whether the fines imposed were reasonable. See 

R. Conrad Moore & Assocs. v. Lerma, 946 S.W.2d 90, 95–96 (Tex. App.—El Paso 1997, pet. 

denied) (amount of plaintiff’s damages should have been determined by jury before trial court 

could consider whether liquidated damages were reasonable forecast of just compensation); see 

also La Ventana Ranch Owners’ Ass’n, Inc. v. Davis, 363 S.W.3d 632, 647 (Tex. App.—Austin 

2011, pet. denied) (noting that section 202.004(a) of the Texas Property Code “creates a rebuttable 

presumption that a property owners’ association or other representative acts reasonably in 

exercising its discretionary authority.”). 

Like Parkstone’s claims for liquidated damages, its claim for statutory damages under 

Section 202.004(c) of the Texas Property Code will depend on its ability to establish actual 

damages at trial. This statute establishes a cause of action and authorizes a trial court to assess civil 

damages in the maximum amount of $200 for each day of the violation of a restrictive covenant.

TEX. PROP. CODE § 202.004(c). Texas courts have concluded that damages assessed under section

202.004 of the Property Code are punitive rather than compensatory because they are unrelated to 

the type or extent of injury or harm caused by the violation. Sanchez v. Southampton Civic Club, 

Inc., 367 S.W.3d 429, 433 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (citing Uptegraph, 

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312 S.W.3d at 937). As a result, they fall within the scope of Chapter 41 of the Texas Civil Practice 

and Remedies Code, which requires that a claimant prove actual damages in more than a nominal 

amount before exemplary damages may be collected. TEX. CIV. PRAC. & REM. CODE § 41.004(a) 

(“[E]xemplary damages may be awarded only if damages other than nominal damages are 

awarded.”); KBG Invs., LLC v. Greenspoint Prop. Owners’ Ass’n, 478 S.W.3d 111, 122–23 (Tex. 

App.—Houston [14th Dist.] 2015, no pet.) (“It is undisputed that Greenspoint neither alleged nor 

introduced evidence of actual damages. We therefore conclude that the trial court abused its 

discretion in awarding Greenspoint statutory damages.”). Again, given that the Fifth Circuit held 

that Parkstone had established a claim for breach of contract in the First Lawsuit based on the very 

same evidence of damages at issue in this action, the Court cannot conclude that Parkstone has 

failed to establish evidence of damages as a matter or law. 

Accordingly, Plaintiffs’ motion for summary judgment as to Parkstone’s claims for 

liquidated damages for breach of contract and statutory damages under section 202.004 of the 

Property Code are denied. 

CONCLUSION

For the forgoing reasons, Defendant’s motion to exclude Dr. Beare’s testimony (ECF No. 

40) is GRANTED; Defendant’s motion for partial summary judgment (ECF No. 42) is DENIED; 

and Plaintiffs’ motion for partial summary judgment (ECF No. 43) is DENIED. 

The Court further ORDERS the parties to mediate this case before United States 

Magistrate Judge Henry J. Bemporad. 

Mediation is a mandatory but non-binding settlement conference wherein the parties 

attempt to resolve their differences with the assistance of a third-party facilitator. All proceedings 

in a mediation session are confidential and protected from discovery. No subpoenas, summons, 

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citations, or other process shall be served at or near the location of any mediation session, upon 

any person entering, leaving, or attending any mediation session. 

Counsel and parties shall proceed in a good faith effort to try to resolve this case and shall 

confer with Judge Bemporad and agree upon a mediation date. If no agreed date can be found, 

Judge Bemporad will select a date and the parties shall appear as directed. Unless this Court 

extends the deadline, mediation shall occur no later than February 23, 2022. 

Following the mediation, the Court will be advised only that the case did or did not settle. 

No other information will be transmitted to the Court by the mediator or any other party.

The Fifth Circuit has concluded that Harmony Haus need only have six unrelated residents 

living at the residence. 851 F. App’x at 467. Further, the Fifth Circuit held that Parkstone’s parking 

and noise restrictions can be enforced. Id. The parties are at this point needlessly spending time 

and money litigating issues that have already been resolved. This dispute must come to an end.

It is so ORDERED. 

SIGNED this 23rd day of November, 2021. 

XAVIER RODRIGUEZ

UNITED STATES DISTRICT JUDGE

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