Supreme Court of Texas

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No. 20-0571

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Li Li,

Petitioner,

v.

Pemberton Park Community Association, 

Respondent

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On Petition for Review from the

Court of Appeals for the Fourteenth District of Texas

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PER CURIAM

Petitioner Li owns a residence in Houston that is subject to 

restrictive covenants found in the “Declaration of Covenants, 

Restrictions and Easements for Pemberton Park” (Covenants). 

Respondent Pemberton Park Community Association (Association) 

enforces the Covenants. The Association sued Li for violations of several 

Covenants. Li represented herself during most of the trial court 

proceedings. The trial court granted summary judgment for the 

Association, and the court of appeals affirmed. ___ S.W.3d ___, 2020 

WL 1467350 (Tex. App.—Houston [14th Dist.] Mar. 26, 2020). Li, 

represented in this Court by counsel, contends that the court of appeals 
2

erred by holding that she failed to preserve for appeal her argument that 

the Association’s enforcement of the Covenants was “arbitrary, 

capricious, or discriminatory” in violation of section 202.004(a) of the 

Property Code. We agree. The court of appeals’ judgment is reversed, 

and the case is remanded to that court for further proceedings.

I.

In September 2014, a hailstorm caused a hairline crack in the 

exterior stucco of Li’s home. The contractor she hired used transparent 

caulk to seal the crack. In November 2015, the Association asked Li to 

conceal the crack with paint within 30 days. Li did so and notified the 

Association on November 16. A representative of the Association 

responded the next day, saying she “ha[d] notated [Li’s] account and 

closed the violation.” In March 2016, however, the Association informed 

Li that the problem was not fixed because the paint Li used was not the 

same color as the rest of her home’s exterior. Following another attempt 

by Li to comply and another rejection of her efforts by the Association, 

the Association informed Li in a September 2016 letter of its intent to 

sue her. In response, Li sued the Association in justice court. The 

Association brought the present suit in district court in March 2017. 

The justice court later dismissed Li’s suit.

The Association alleged that Li violated sections 6.02.2 and 8.01.3 

of the Covenants by failing to re-paint the damaged area in a color 

matching the rest of the home’s exterior.1 The Association sought a 

1 Those two sections, respectively, provide that “[e]ach Owner shall 

maintain the exterior of each Owner’s residence . . . in an attractive, sound and 

well maintained condition, including proper maintenance and repair as needed 
3

permanent injunction, statutory damages under section 202.004(c) of 

the Property Code, and attorney’s fees. Li, acting pro se, filed an answer. 

She alleged, among other defenses, that “[m]any other property owners 

have lived with much worse violations for many years without being 

enforced, sued, [or] fined by the [Association], including the President 

and Directors of the Board of the . . . Association. The [Association] 

breached the Declaration of Covenant of fair dealing of equal and same 

manner, Sec. 4.02.3.”

The Association moved for summary judgment. Li filed a 

competing summary-judgment motion, in which she repeated her 

selective-enforcement allegation and pointed to photographic evidence 

supporting it. In her response to the Association’s motion, Li provided 

examples and details supporting her claim that the Association 

“selectively enforced the Defendant and . . . breached the Declaration of 

Covenant of fair dealing, and of equal and same manner, Sec 4.02.3.” Li 

added that this disparate treatment may have been related to 

complaints she made on unrelated issues such as unleashed dogs and 

security gates. At an August 25 hearing, the district court denied the 

Association’s motion for summary judgment to allow the parties to 

conduct discovery on the defense of selective enforcement.

of paint . . . . The exterior paint on each Owner’s residence must be 

maintained so that . . . all painted portions remain neat and free of mildew and 

discoloration”; and “[a]ll residences, buildings and structures must be kept in 

good repair, must be painted . . . when necessary to preserve their 

attractiveness and must otherwise be maintained in such manner as to obtain 

and maintain Prevailing Community Standards.”
4

Following discovery, Li filed another document titled “Cross 

Motion for Summary Judgment,” which alleged that the Association “not 

only selectively sent out deed violation enforcement letters, but also 

selectively took follow-up actions for enforcement. The [Association] 

breached the Declaration of Covenant of fair dealing, and of equal and 

same manner, Sec. 4.02.3. The Defendant was selectively enforced by 

the [Association].” She described instances in which the Association 

allegedly disregarded more serious violations by other residents. The 

Association responded with evidence intended to demonstrate that “of 

the fourteen violations which were open during the same time period as 

Ms. Li’s violation, Ms. Li was the only owner who refused to cure the 

violation.” During the trial court proceedings, neither party used the 

phrase “arbitrary, capricious, or discriminatory” or cited section 

202.004(a).2 “Sec. 4.02.3,” to which Li’s pleadings repeatedly referred,

is a provision of the Covenants entitled “Manner and Effect of Adoption 

of Architectural Guidelines.” It has nothing to do with evenhanded 

enforcement of the Covenants.

The trial court granted the Association’s motion for summary 

judgment and denied Li’s cross-motion. The court issued an injunction 

ordering Li to re-paint the affected part of her home and directing her 

to pay the Association $1,000 in statutory damages, court costs, and 

attorney’s fees of $16,572. About a week later, Li, represented by 

2 Section 202.004(a) of the Property Code provides that an “exercise of 

discretionary authority by a property owners’ association . . . concerning a 

restrictive covenant is presumed reasonable unless the court determines by a 

preponderance of the evidence that the exercise of discretionary authority was 

arbitrary, capricious, or discriminatory.”
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counsel for the first time, filed a motion to set aside the summary 

judgment. This filing restated Li’s earlier defenses, including her claim 

of selective enforcement, though it still made no express mention of 

section 202.004(a) of the Property Code. The district court denied the 

motion, and Li appealed.

Li raised two issues on appeal. She argued that summary 

judgment was improper because a fact issue existed on (1) whether the 

Association’s enforcement of the Covenants was arbitrary, capricious, or 

discriminatory under section 202.004(a); and (2) whether the 

Association had abandoned the provisions that Li allegedly violated. 

The court of appeals refused to consider either argument. It concluded 

that Li had not raised these points in her summary-judgment response, 

which meant summary judgment could not be reversed on either basis. 

2020 WL 1467350, at *3-4. In this Court, Li challenges the court of 

appeals’ error-preservation holding on the first issue.

II.

“Issues not expressly presented to the trial court by written 

motion, answer or other response shall not be considered on appeal as 

grounds for reversal” of summary judgment. TEX. R. CIV. P. 166a(c). 

Nevertheless, Rule 166a(c), like “all . . . procedural rules . . . should be 

construed liberally so that the right to appeal is not lost unnecessarily.” 

Arkoma Basin Expl. Co. v. FMF Assocs. 1990-A, Ltd., 249 S.W.3d 380, 

388 (Tex. 2008). Appellate courts should “hesitate to turn away claims 

based on waiver or failure to preserve the issue.” First United 

Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214, 221 (Tex. 

2017). This is especially so “where the party has clearly and timely 
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registered its objection” to the ruling challenged on appeal. Nath v. Tex. 

Children’s Hosp., 446 S.W.3d 355, 365 (Tex. 2014).

This Court has “often held that a party sufficiently preserves an 

issue for review by arguing the issue’s substance, even if the party does 

not call the issue by name.” St. John Missionary Baptist Church v. 

Flakes, 595 S.W.3d 211, 214 (Tex. 2020). In the same vein, parties on 

appeal need not always “rely on precisely the same case law or statutory 

subpart” on which they relied below. Adams v. Starside Custom 

Builders, LLC, 547 S.W.3d 890, 896 (Tex. 2018). And while appellate 

courts “do not consider issues that were not raised . . . below,” parties 

may “construct new arguments in support of issues” that were raised. 

Greene v. Farmers Ins. Exch., 446 S.W.3d 761, 764 n.4 (Tex. 2014). 

These principles have been applied in reviewing grants of summary 

judgment. See Scripps NP Operating, LLC v. Carter, 573 S.W.3d 781, 

791 (Tex. 2019); Nath, 446 S.W.3d at 365.

The question is whether Li sufficiently preserved the issue of 

arbitrary enforcement under section 202.004(a) of the Property Code for 

review by arguing the issue’s substance, even though she did not specify 

the statutory subpart on which she now focuses or couch her argument 

in the subpart’s terminology. We hold that she did. Both Li’s response 

to the Association’s summary-judgment motion and her cross-motion for 

summary judgment argued that the Association “selectively enforced” 

its restrictive covenants and failed to engage in “fair dealing” or apply 

the covenants in an “equal and same manner [sic].” Although she did 

not use the words “arbitrary, capricious, or discriminatory” or cite 

section 202.004(a), she argued the issue’s substance despite not calling 
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it by name. Flakes, 595 S.W.3d at 214. She did so by arguing that she 

was singled out for discriminatory and arbitrary treatment because the 

deed restrictions were “selectively enforced” against her.

Li’s pleadings further elaborated on the selective-enforcement 

argument contained in her summary-judgment papers by explaining 

that “[m]any other property owners . . . have lived with much worse 

violations . . . for many years without being enforced, sued, [or] fined by 

the [Association].” She claimed that she was singled out because she 

had complained about unrelated neighborhood issues. Such 

inconsistent treatment of similarly situated property owners is just the 

kind of “arbitrary, capricious, or discriminatory . . . exercise of 

discretionary authority” prohibited by section 202.004(a).3

The Association contends that even if Li’s allegation of selective 

enforcement would otherwise have been enough to preserve a complaint 

under section 202.004(a), she disclaimed reliance on section 202.004 by 

instead citing section 4.02.3 of the Covenants. We have held, however, 

that mistakenly citing the wrong legal authority does not necessarily 

waive an argument whose substance is otherwise made known to the 

court. See Nath, 446 S.W.3d at 364-65 (party adequately preserved for 

appeal issue of whether sanctions were excessive in violation of due 

process clause even though he mistakenly cited Eighth Amendment). 

3 See, e.g., Sierra Crest Homeowners Ass’n v. Villalobos, 527 S.W.3d 235, 

243-44, 248 (Tex. App.—El Paso 2016, no pet.); Nolan v. Hunter, No. 04-13-

00072-CV, 2013 WL 5431050, at *4 (Tex. App.—San Antonio Sept. 25, 2013, 

no pet.); Leake v. Campbell, 352 S.W.3d 180, 190 (Tex. App.—Fort Worth 2011, 

no pet.); Glenwood Acres Landowners Ass’n v. Alvis, No. 12-07-00072-CV, 2007 

WL 2178554, at *2 (Tex. App.—Tyler July 31, 2007, no pet.).
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Li’s inapposite reference to section 4.02.3 was a mistake by a pro se 

litigant, not an invocation of alternative authority that altered the 

substance of Li’s argument.

Indeed, the record indicates that the Association was under no 

misimpression as to the substance of Li’s argument. The Association 

responded to Li’s claim of “selective enforcement” by introducing 

evidence that, “of the fourteen violations which were open during the 

same time period as Ms. Li’s violation, Ms. Li was the only owner who 

refused to cure the violation.” That the Association introduced evidence 

intended to justify its treatment of Li as compared to other property 

owners indicates that the Association understood that Li’s argument 

was in substance a complaint about arbitrary or discriminatory 

enforcement. Under the fair-notice standard governing pleadings, a 

party’s filing need only provide enough “notice of the facts upon which 

the pleader bases his claim” such that “the opposing party [has] 

information sufficient to enable him to prepare a defense.” Roark v. 

Allen, 633 S.W.2d 804, 810 (Tex. 1982). Even vague legal terminology 

may clear this bar if it “alert[s]” the opposing party of the conduct for 

which the pleader “intend[s] to hold him liable” or otherwise legally 

responsible. Id. This standard has been applied not only to petitions 

and answers, but also to filings relating to motions for summary 

judgment. See Parker, 514 S.W.3d at 224-25. In this case, the standard 

was met: Li argued “selective enforcement” and, despite citing the wrong 

authority, she described the allegation with enough clarity to allow the 
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Association to respond in much the same manner as it would have if Li 

had invoked the correct authority.4

Finally, it bears noting that Li represented herself during the 

relevant stages of the district court proceedings. This Court has said 

that “[t]here cannot be two sets of procedural rules, one for litigants with 

counsel and the other for litigants representing themselves.” Mansfield 

State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978). Likewise, 

“[l]itigants who represent themselves must comply with the applicable 

procedural rules.” Id. at 185. Our more recent cases, however, have 

explained that application of a procedural rule—particularly one that 

“turns on an actor’s state of mind”—“may require a different result when 

the actor is not a lawyer. [This] does not create a separate rule, but 

recognizes the differences the rule itself contains.” Wheeler v. Green, 

157 S.W.3d 439, 444 (Tex. 2005). This principle is applicable here, 

because courts’ construction of a party’s filings in part “turns on [a 

litigant’s] state of mind.” Id.; see also Tex. Dep’t of Parks & Wildlife v. 

Miranda, 133 S.W.3d 217, 226 (Tex. 2004) (“We construe . . . pleadings” 

by “look[ing] to the pleaders’ intent.”). Courts of appeals have 

accordingly converged upon the view that courts should “review and 

evaluate pro se pleadings with liberality and patience.” Corona v. 

4 The Association argues that it was prejudiced by Li’s failure to cite the 

Property Code because section 202.004(a) only applies to a property owners’ 

association’s “exercise of discretionary authority,” and the absence of citation 

to section 202.004(a) meant the Association had no opportunity to present a 

defense on this issue. This argument is unpersuasive. The Association 

provides no reason to doubt that its enforcement of the Covenants against Li 

was the “exercise of discretionary authority,” and we see no possibility it could 

have shown otherwise if given the chance.
10

Pilgrim’s Pride Corp., 245 S.W.3d 75, 78 n.3 (Tex. App.—Texarkana 

2008, pet. denied).5

In sum, we hold that Li preserved for appeal her argument that 

the Association’s enforcement of the Covenants was “arbitrary, 

capricious, or discriminatory” under Texas Property Code section 

202.004(a). The parties also dispute whether the summary-judgment 

evidence created a material fact issue on this point, and the Association 

further raises questions about the consequence of a section 202.004(a) 

finding that its actions were “arbitrary, capricious, or discriminatory.” 

Since the court of appeals disposed of this case on error-preservation 

grounds, it did not consider these matters. We therefore remand this 

case to the court of appeals for consideration of any issues properly 

raised in, but not decided by, that court. See PNC Mortg. v. Howard, 

616 S.W.3d 581, 585 n.8 (Tex. 2021); TEX. R. APP. P. 53.4.

For these reasons, without hearing oral argument, the court of 

appeals’ judgment is reversed, and the case is remanded to the court of 

appeals for further proceedings consistent with this opinion. TEX. R.

APP. P. 59.1.

OPINION DELIVERED: October 1, 2021

5 See In re A.G.D., No. 07-15-00201-CV, 2016 WL 316879, at *2 (Tex. 

App.—Amarillo Jan. 22, 2016, no pet.); Stewart v. Tex. Health & Human Servs. 

Comm’n, No. 03-09-00226-CV, 2010 WL 5019285, at *2 (Tex. App.—Austin 

Dec. 9, 2010, no pet.); Siddiqui v. Siddiqui, No. 14-07-00235-CV, 2009 WL 

508260, at *1 (Tex. App.—Houston [14th Dist.] Mar. 3, 2009, pet. denied); 

Chambers v. State, 261 S.W.3d 755, 757 (Tex. App.—Dallas 2008, pet. denied); 

In re Taylor, 28 S.W.3d 240, 246 (Tex. App.—Waco 2000, orig. proceeding); 

White v. Cole, 880 S.W.2d 292, 294 (Tex. App.—Beaumont 1994, writ denied); 

Thomas v. Collins, 860 S.W.2d 500, 503 (Tex. App.—Houston [1st Dist.] 1993, 

writ denied).