COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

LEGACY ESTATES

, LLC

,

Appellant,

v.

SIGNAL HILL ESTATES HOMEOWNERS

ASSOCIATION, INC.

, SATURN FIVE

SIGNAL HILL, LLC

, EVAN LOOMIS ;

BRETT AMES ; DOUG CLARK ; GRANT

AMES ; and SCOTT WALTHER

,

Appellees. §

§

§

§

§

§

§ No. 08-22-00134- CV

Appeal from the

98 th Judicial District Court

of Travis County, Texas

TC# D-1- GN -20-006436

O P I N I O N 1

Appellant Legacy Estates, LLC (Legacy), a property owner and home-building company,

appeals a take -nothing summary judgment rendered against all of it s claims

. Legacy sued several

parties alleging it was improperly prohibited from building a private home on a lot situated in the

Signal Hill Estates subdivision of Travis County. The suit alleged a breach of contract and several

other causes of action against a group of individuals and entity d efendants

, all of whom are

connected to the development or management of the subdivision (collectively, the A ppellees)

. The

1 This case was transferred from the Austin Court of Appeals pursuant to the Texas Supreme Court ’s docket

equalization efforts. See T EX . G OV ’ T C ODE A NN . § 73.001

. We follow the precedent of that court to the extent it might

conflict with our own. See T EX

. R. A PP

. P. 41.3

.2 entity

- defendants include Saturn Five Signal Hill, LLC (Saturn Five), and Signal Hill Estates

Homeowners Association, Inc. (the Association), the subdivision developer and property owner ’s

association

, respectively. B y means of an Architectural Control Committee (the ACC) , the

Association is vested with authority over all home building plans of the subdivision . Individualdefendants include Evan Loomis, a principal of Saturn Five

, and four builders, Brett Ames, Grant

Ames, Doug Clark, and Scott Walther (the Builders), who all serve on the A ssociation ’s ACC

. On

appeal, Legacy contends the trial court erred in granting the Appellees ’ joint motion for summary

judgment and in rendering certain related rulings. Finding no reversible error, we affirm.



### I. B ACKGROUND

A. Factual background

Signal Hill Estates is a subdivision in Travis County, Texas

. The original owner and

developer entered into and filed of record a declaration of covenants, conditions and restrictions

governing all lands of the subdivision. Saturn Five , along with its partner Evan Loomis, is the

developer of Signal Hill Estates. Saturn Five purchased the subdivision in April 2018 as developed

and undeveloped land

. As a result of the purchase, Saturn Five was assigned all declaration rights

including those rights arising under the original governing instrument. Pursuant to those rights,

Saturn Five soon filed a Second Amended and Restated Declaration of Covenants, Conditions and

Restrictions of Signal Hill Estates (the Declaration)

, which is the instrument that is relevant to

Legacy ’s claims

.

Among its several provisions, the Declaration provides that all property of the subdivision

is held and occupied subject to the “ easements, restrictions, covenants and conditions which are

for the purpose of protecting the value and desirability of, and which shall run with the Property

and shall be binding on all parties having any right, title or interest in or to the Property or any part3 thereof,

. . . and shall inure to the benefit of each Owner thereof. ” Based on the Declaration,

property owners who purchase land are notified of the developer ’ s desire to create and carry out a

uniform plan for the benefit of both present and future owners of subdivision property. To this end,

all property is owned subject to the Declaration terms. Among those terms, the Declaration

provides for the management of the subdivision by an Association of homeowners, which is

charged with the powers prescribed by law or set forth in the governing instrument. The affairs of

the Association are conducted by a board of directors. Prior to building on any property

, each

owner must submit plans to the Association ’ s ACC for its written approval consistent with

Declaration requirements. During a period when Saturn Five remains in control of the Association,

which is known as the “ Declarant Control Period, ” the Declaration provides that Saturn Five may

appoint, remove, and replace all ACC voting members.

After purchasing the subdivision, Saturn Five soon entered into a n agreement with three

custom home building companies of Travis County

, Eppright, ADB, and Sendero (the Builder

Companies )

. Saturn Five agreed t hose companies would be given exclusive rights to build in the

subdivision “ for one (1) year after the Subdivision was ‘ substantially completed

. ’” But the

agreement also provided that Saturn Five could sell five “ friends and family ” lots during the

exclusivity period. Regardless of these terms, all homes to be constructed in the subdivi sion still

required ACC approval, wherein the ACC would consist of Doug Clark, Brett Ames, Grant Ames,

and Scott Walther, who each worked for one of the B uild er C ompanies . The ACC members would

also be assisted by Andrew Logan, the ACC’s review architect.

Legacy is a limited liability company with Samir Gulati as its principal and authorized

agent. I n February 2019, Saturn Five sold two of its “ friends and family ” lots to Legacy

— the

Verandero Lot and the Grumbles Lot. Legacy began construction on the V erandero Lot prior to4 seeking ACC approval or permission. Legacy eventually submitted, and resubmitted, an

application to the ACC which was ultimately approved by the ACC.

Legacy then applied to build on the Grumbl e s Lot

. The ACC soon notified Legacy that its

application was not in compliance with the architectural guidelines for several reasons including a

failure to comply with the 60/40 square footage ratio for the first and second floor. Legacy

submitted revised plans and a variance request for the Grumbles Lot

. Again, the ACC rejected the

plans stating the design was not meeting the architectural guidelines. Legacy then submitted a

revised set of plans and in an email it explicitly stated the plans were not final

. The ACC continued

to reject the plan and application

, and it request ed a redesign

.

Legacy ultimately sold the two lots it had owned, the Verandero Lot and the Grumbles Lot.

The Verandero Lot in part included the home approved by the ACC, which it had started to build

but had not yet completed. Legacy then filed suit.

B. P rocedural b ackground

In its pleading, L egacy asserted five causes of action against dif fering groups of Appellees.

The claims included breach of fiduciary duties, breach of contract, tortious interference, negligent

misrepresentation, and conspiracy. All Appellees are named defendants of the conspiracy claim,

only some Appellees are named on the breach of fiduciary duties, breach of contract, and tortious

interference claims, and only Loomis is named on the negligent misrepresentation claim. Legacy

also sought a declaratory judgment over the meaning of the Declaration ’ s term stating that “ Second

Story ratios may not exceed 40% of the living space [

. ] ” Lastly, the petition requested that Legacy

be awarded attorney ’ s fees and costs.

The Appellees all filed general denials, special exceptions, and requests for attorney ’ s fees.

Later, Appellees jointly moved for summary judgment on both traditional and no

- evidence5 grounds. In support of their motion, Appellees provided a certified copy of the Declaration, the

unsworn declaration of Evan Loomis, and business records of the Associa tion. Included among

those records, the Association provided correspondence with Legacy regarding its request for

approval of plans, a copy of Legacy ’ s various applications submitted to the ACC, email

correspondence, and excerpts of the deposition transcript of Samir Gulati.

In the meantime, Legacy filed a first amended petition adding detail to its previously

pleaded claims. For example, Legacy alleged that Brett Ames, Doug Clark, Scott Walther, and

Evan Loomis breached fiduciary duties in their capacity as members of not only the Association ’ s

Board of Directors but also as members of the ACC. As for the breach of contract claim

, the

amended petition expanded such as to name all Appellees. Also

, Legacy substantively alleged that

Appellees applied the Declaration in an arbitrary and capricious manner.

All Appellees filed amended answers raising affirmative defenses, including waiver. The

individual defendants also added verified denials averring they were not liable in the capacities in

which they had been sued. Finally, Legacy filed its response to defendants ’ joint motion for

summary judgment. Legacy agreed its declaratory judgment action was subsumed in its breach of

contract action, and it waived its request for declaratory judgment. In support of its response,

Legacy attached exhibits including excerpts of deposition transcripts, business records, and a n

unsworn declaration of Sam ir Gulati.

The trial court granted Appellees ’ motion for summary judgment in full without specifying

the grounds on which it based its decision. Because the order did not address claims for attorney ’ s

fees, it was not a final order. Later, the trial court signed an agreed order awarding attorney ’ s fees

and costs conditioned upon Appellees ’ prevailing on appea l

. The trial court entered a final6 judgment granting Appellees ’ motion for traditional summary judgment in full and awarding

attorney ’ s fees

.

This appeal followed.



### II. I SSUES O N 

### A PPEAL

Legacy brings eight issues on appeal. In its first five issues, Legacy argues the trial court

erred in granting summary judgment because it raised a genuine issue of material fact as to its

various claims

. Those claims include causes of action of abuse of discretionary authority under

Texas Property Code § 202.004

, breach of contract, tortious interference, negligent

misrepresentation, and conspiracy. In its sixth issue, Legacy argues that officers or directors of a

homeowner association owe fiduciary duties to homeowners as a matter of law when the

Association ’ s governing bylaws provide for a duty of loyalty. In its seventh issue, Legacy contends

that Appellees ’ affirmative defense of waiver was not properly raised

. Finally, in its eighth issue,

Legacy seeks a conditional revers al of the award of attorney ’ s fees and costs should Appellees not

prevail on appeal

.

We consid er each issue in turn

.



### III. S UMMARY 

### J UDGMENT 

### S TANDARD O F 

### R EVIEW

We review a summary judgment de novo

, viewing the evidence “ in the light most favorable

to the non

- movant, crediting evidence favorable to the non

- movant if reasonabl e jurors could

, and

disregarding contrary evidence unless reasonable jurors could n o t

. ” Zive v. Sandberg

, 644 S.W.3d

169, 173 ( Tex. 2022) (quoting Erikson v. Renda

, 590 S.W.3d 557, 563 ( Tex. 2019) )

.

When moving for traditional summary judgment, the movant must demonstrate no genuine

issue of material fact exists and it is entitled to judgment as a matter of law. T EX

. R. C IV

. P. 166a(c) ;

Zive

, 644 S.W.3d at 173

. Once a movant establishes a right to summary judgmen t

, the burden then7 “ shifts to the nonmovant to raise a genuine issue of material fact precluding summary judgment. ”

Lujan v. Navistar, Inc.

, 555 S.W.3d 79, 84 ( Tex. 2018)

. A fact issue exists if reasonable and fair

minded jurors could differ in their conclusions in light of all the evidence presented. Goodyear

Tire & Rubber Co. v. Mayes

, 236 S.W. 3 d 754, 755 ( Tex. 2007) (per curiam)

.

A defendant ’ s traditional motion for summary judgment is properly granted by the trial

court if the defendant has defeated each of the plaintiff ’ s claims by either disprov ing at least one

element of the claim or by establishing all elements of an affirmative defense to it. Dallas Morning

News, Inc. v. Tatum

, 554 S.W. 3d 614, 625 ( Tex. 2018)

. When the order granting summary

judgment does not specify the grounds relied on for the ruling, we affirm the summary judgment

if any of the theories advanced in the trial court and preserved for appeal are meritorious. Cmty

.

Health Sys. Pro. Servs. Corp. v. Hansen

, 525 S.W.3d 671, 68 0 ( Tex. 2017)

.



### IV. T HE 

### P ROPERTY 

### C ODE 

### C LAIM

In its first issue, Legacy contend s the evidence established a genuine fact issue as to

whether the Builders and the Association abused their discretionary authority under Texas

Property Code § 202.004, through the ACC ’ s arbitrary and capricious decision making

. Legacy

maintains th e Appellees were not empowered to exercise unlimited discretio n in making decisions

impactful of Legacy ’ s plans to build on the Grumbles L ot. See T EX

. P ROP

. C ODE A NN

.

§ 202.004(a) ( “ A n 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. ” ). Specifically, Legacy contends the evidence

, when viewed in its

favor

, established the Association and its A CC

— acting at the direction of certain builders

—8 persistently applied one standard to one set of builders while applying a diametrically opposite

standard to Legacy.

In opposition, Appellees argue first, that Legacy ’ s application to build on the Grumbles

L ot never met the minimum requirements of the Declaration ’ s restrictive covenants ; and second,

if it is assumed for the sake of argument that any of Legacy ’ s plan s conformed with applicable

requirements, th at the ACC was vested with unlimited authority to approve or deny any application

in any event

. In short, Appellees maintain that none of Legacy ’ s plans conformed with

requirements; but even if they did, the Declaration empower ed the ACC to reject such plan s

regardless of guideline conformity

. Citing to Art. III, Sec tion 3.21 of the Declaration, Appellees

urge

, “ the ACC, as provided by the Current Declaration, has absolute discretionary authority by

which to approve or deny any application [

. ] ”

To begin, we first determine whether the Property Code ’ s “ arbitrary and capricious ”

restriction applies in this instance.

A. The nature and extent of the ACC ’ s authority to grant or deny building plan s

The parties do not dispute that the Declaration governing the subdivision includes

restrictive covenants. More than a century ago, the Supreme Court of Texas recognized “ the right

of parties to contract with relation to property as they see fit, provided they do not contravene

public policy and their contracts are not otherwise illegal. ” Tarr v. Timberwood Park Owners

Ass ’ n, Inc.

, 556 S.W.3d 274, 280 ( Tex. 2018) (citing Curlee v. Walker

, 244 S.W. 497, 498

( Tex. 1922)). Even still, restrictive covenants limit permissible uses of land for which landowners

can ordinarily make of their property. Id. at 279 (citing R ESTATEMENT (T HIRD ) OF P ROP .:

S ERVITUDES § 1.3(3) ( A M

. L. I NST

. 2000) and T EX

. P ROP

. C ODE

. A NN

. § 202.001(4) ). While such

restraints are not generally favor ed

, Tarr further noted the Supreme Court had previously9 acknowledged that these covenants may enhance the value of real property. Id. (citing Davis v.

Huey

, 620 S.W.2d 561, 565 ( Tex. 1981) ). Thus, “ w hen land is sold

, the agreed

- to covenants ‘ enter

into and become a part of the consideration. ’ ” Id.

C ourts have long recognized, “ [t] he buyer submits to a burden upon his own land because

of the fact that a like burden imposed on his neighbor ’ s lot will be beneficial to both lots. ” Id. at

280 (quoting Hooper v. Lottman

, 171 S.W. 270, 272 ( Tex. App.

— El Paso 1914, no writ) ). To this

extent, restrictive covenant s “ between the original owner and each purchaser is

. . . mutual. ” Id.

As a result, courts have “ always treated unambiguous covenants ‘ as valid contracts between

individuals. ’” Id

. (quoting David A. Johnson, One Step Forward, Two Steps Back: Construction

of Restrictive Covenants A fter the Implementation of Section 202.003 of the Texas Property Code

,

32 T EX

. T ECH L. R EV

. 355, 35 8 (2001) ). As such, restrictive covenants are “ subject to the general

rules of contract construction. ” Id

. (quoting Pilarcik v. Emmons

, 966 S.W.2d 474, 478

( Tex. 1998) ). Restrictive covenants are “ unambiguous as a matter of law if [they] can be given a

definite or certain legal meaning. ” Pilarcik

, 966 S.W.2d at 478

.

In construing a restrictive covenant, our primary task is to seek the intent of the parties to

give effect to their purposes. Voice of Cornerstone Church Corp. v. Pizza Prop. Partners

, 160

S.W.3d 657, 667 ( Tex. App.

— Austin 2005, no pet.)

. “ Co urts must examine the covenants as a

whole in light of the circumstances present when the parties entered the agreement giving the

words used in the restrictive covenant

. . . the meaning which they commonly held as of the date

the covenant was written, and not as of some subsequent date. ” Tarr

, 556 S.W.3d at 280 (internal

quotation mark s and citations omitted). When doing so, a restrictive covenant ’ s words “ may not

be enlarged, extended, stretched or changed by construction. ” Id. (quoting Wilmoth v. Wilcox

, 73410 S.W.2d 656, 657 ( Tex. 1987) ). “ And courts should avoid any ‘ construction that nullifies a

restrictive covenant provision. ’” Id. (quoting Pilarcik

, 966 S.W.2d at 479 ).

Here, the parties principally dispute the meaning of terms included in Art. III, Section 3.21

of the Declaration

, titled “ Architectural Guidelines

. ” The opening line of that section states there

is no specific architectural style required by the ACC “ but the general intent of the subdivision is

a fresh take on modern farmhouse, hill country and transitional. ” This provision further states:

“ The styles should complement and enhance the natural beauty of the development and be

congruent with the Texas Hill Country and healthy living setting. ” Providing further detail s

, this

section includes requirements such as “ [s]econd story ratios may not exceed 40% of the living

space[;] ” and “ [t]he maximum unbroken exterior wall plane is 40 ’ before a 2 ’ offset is required. ”

Lastly, however, the section include s the following language :

Notwithstanding the foregoing, the ACC is empowered to reject or accept a plan

that does or does not meet these requirements, if in the ACC ’ s sole discretion the

building would enhance, blend in, or detract from the general appearance of the

neighborhood. (emphasis added).

In contending that the ACC was authorized to deny Legacy ’ s plan s regardless of whether

any of them conformed to requirements, Appellees argue that the ACC exercised “ absolute

discretionary authority by which to approve or deny any application. ” To that extent, Appellees

contend the limitation imposed by § 202.004 of the Property Code

, which prohibits arbitrariness

and capriciousness in the exercise of discretionary authority, d oes not apply based on the

Declaration ’ s express terms. Appellees point out that the final sentence of Article III, S ection 3.21,

states that “ notwithstanding ” the previously laid out requirements

, the ACC may accept or reject

a plan “ if in the ACC ’ s sole discretion, ” it determine s the building “ would enhance, blend in, or

detract from the general appearance of the neighborhood

. ” Appellees rely on th is clause and

, more11 specifically, its vesting of “ sole discretion

, ” as support for its claim that ACC decisions are

unreviewable. To that interpretation, we disagree.

The Declaration provides no definition of the term “ sole discretion. ” When a contract does

not define a term or provide otherwise, we interpret its language according to its plain, ordinary,

and generally accepted meaning in an effort to give effect to the written expression of the parties ’

intent. Pathfinder Oil & Gas, Inc. v. Great W. Drilling, Ltd.

, 574 S.W.3d 882, 888 ( Tex. 2019)

.

To do so, we look to dictionaries to discern the meaning of commonly used term s

. In re Davenport

,

522 S.W.3d 452, 456

– 57 ( Tex. 2017)

.

We focus first on the term “ sole discretion. ” “ Sole, ” an adjective, is defined as “ functioning

independently and without assistance or interference. ” See Sole

, M ERRIAM W EBSTER ’ S

C OLLEGIATE D ICTIONARY 1118 (10th ed

. 1997 ). “ D iscretion, ” a noun, means the “ power of free

decision or latitude of choice within certain legal bounds. ” See Discretion

, M ERRIAM W EBSTER ’ S

C OLLEGIATE D ICTIONARY 332 (10th ed

. 1997 )

. Bringing the two terms t ogether, “ sole discretion ”

ordinarily describes the “ power to make decisions without anyone else ’ s advice or consent. ” See

Sole Discretion, B LACK ’ S L AW D ICTIONARY 565 ( 10th ed. 2014 )

. B y its plain terms, t he

Declaration provides that the ACC operates independently and without need for consent from any

other person or group

. Continuing, ho wever, S ection 3.21 i ncludes further terms. Although the

ACC may act alone in accept ing or reject ing plans

, its exercise of authority is based on whether

“ the building would enhance, blend in, or detract from the general appearance of the

neighborhood. ”

To interpret the clause as a whole, w e are guided by a decision of the Austin Court of

Appeals in La Ventana Ranch Owners ’ Ass ’ n, Inc. v. Davis

, 363 S.W.3d 632, 646 ( Tex. App.

—

Austin 2011, pet. denied). There, the court interpreted a declaration stating that an association was12 authorized to grant a variance “ when in the opinion of the [ association ], in its sole and absolute

discretion

, such variance will not impair or detract from the high quality development of the

Property and such variance is justified due to unusual or aesthetic considerations, topographic or

septic considerations, or unusual circumstances

. ” La Ventana

, 363 S.W.3d at 646 (emphasis

added)

. Because the parties had contracted for “ sole and absolute discretion, ” La Ventana

determine d that such language excluded a reasonableness standard that would otherwise be

imposed by law on such association decisions

. Id.

As contrasted with La Ventana

, the term “ absolute ” is not included in S ection 3.21 of the

Declaration ’ s terms. That absence distinguish es the circumstances. “ A bsolute ” is defined as

“ having no restriction, exception, or qualification. ” See Absolute

, M ERRIAM W EBSTER ’ S

C OLLEGIATE D ICTIONARY 4 (10th ed

. 1997 ). A lthough the ACC is empowered to act independently

in its “ sole discretion, ” its d iscretion is not absolute or otherwise defined as “ without restriction,

exception, or qualification. ” Id

. Rather, as we earlier noted, the ACC must exercise its authority

such as to determine whether “ the building would enhance, blend in, or detract from the general

appearance of the neighborhood. ”

. G iven that the words of a restrictive covenant “ may not be

enlarged, extended, stretched or changed by construction [

, ] ” we cannot add the term “ absolute ” to

the Declaration ’ s language. See Wilmoth

, 734 S.W.2d at 657

. Section 3.21 ’ s language provides for

“ sole discretion, ” but not “ sole and absolute discretion

. ” See La Ventana

, 363 S.W.3d at 646.

Accordingly, we reject Appellees ’ argument urging that the ACC had “ absolute discretionary

authority by which to approve or deny any application ” pursuant to Article III, S ection 3.21 of the

Declaration.

Instead, t o the extent that discretionary authority is exercised by a homeowner ’ s

association

, § 202.004 of the Property Court requires that such authority be exercised in a manner13 not arbitrary or capricious. See T EX

. P ROP

. C ODE A NN

. § 202.004(a). ( “ A n 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. ” ). As a matter of

law, this section creates a rebuttable presumption that a n owner ’ s association acts reasonably in

exercising such discretionary authority. See id

. Given this presumption of reasonableness, the

initial burden shifted to Legacy to pres ent sufficient evidence to overcome th e presumption and

create a fact issue concerning the reasonableness of the ACC ’ s exercise of discretion.

B. Whether Legacy raised a fact issue on its claim of abuse of discretionary

authority

Legacy argues it produced summary judgment evidence to show a fact issue existed as to

whether Appellees selectively enforced its own rules. In a series of claims, Legacy contends the

Association imposed an implied requirement that only builder s of luxury home s could build in the

subdivision. It argues the ACC applied this “ fabricated rule ” to exclude it as a builder; that the

ACC allowed Logan, its review architect, to unilaterally approve building plan s of the other

builders but required unanimous approval for Legacy ’ s; that the ACC selectively enforced the

60/40 Rule and the Sidewall Articulation Requirement; and finally, that the ACC denied Legacy ’ s

plans

, which complied with the ACC ’ s previous comments

, requiring instead that Legacy redesign

its home

.

Legacy asserts the evidence in this case was sufficient to raise a fact issue similar to that

raised in Li v. Pemberton Park Cmty. Ass ’ n, Inc.

, 652 S.W.3d 891, 897 ( Tex. App.

— Houston

[1 4th Dist.] 2022, no pet.)

. There, o n remand from the Supreme Court, t he Fourteenth Court of

Appeals decided that a homeowner

- plaintiff raised a genuine issue of material fact as to an14 association ’ s exercise of discretionary authority when enforcing restrictive covenants in a manner

that was arbitrary, capricious, or discriminatory. Id. at 899

. In Li

, the plaintiff presented evidence

that the association sent her four different letter s alleging the paint color on a repaired area of her

house failed to match despite her repeated attempts at matching the color. Id. at 897

– 898

.

Homeowner Li a lso sent an email to the association pointing out that ma ny other homes in the

community had similar violations, but no enforcement efforts had been filed or suits brought

against those owners. Id. at 898

. Plaintiff supported her allegation with photographs of other

houses in the subdivision showing alleged violations of the restrictive covenants which she claimed

were not corrected

. Id. There was also evidence of the association ’ s violation history showing

fourteen wit h the same violation, but only two had notes showing the violation s had been remedied.

Id. The association did not otherwise prove that all the other alleged violations had been corrected

or were not violations. Id. at 899

. On appeal, Li concluded that the summary judgment evidence

raised a fact issue as to whether the association ’ s exercise of discretionary authority against Li was

arbitrary and capricious. Id

.

Here, u nlike in Li

, Legacy present ed no evidence establishing a fact issue on whether the

ACC had acted selectively in enforcing the restrictive covenants of the subdivision

. First

, the

evidence established without dispute that Legacy ’ s plan to build on the Verandero L ot was

approved despite Legacy not being one of the exclusive Builders’ Companies. Second, Legacy

failed to raise a fact issue regarding its complaint that the ACC allowed Logan to unilaterally

approve the Builders ’ applications but required unanimous votes of the ACC members with respect

to its applications

. Legacy not only failed to point to any evidence supporting this complaint

, but

it contradicts other evidence. The Declaration provides that the ACC may meet to perform its15 duties, may designate unanimously and in writing one of its members to act on its behalf, and in

the absence of such a designation, may act by majority vote without a meeting.

Lastly, Legacy contends the ACC selectively enforced the 60/40 rule as to its application

to build but it was not enforced on other applications. To support its argument

, Legacy points to

an application of Sendero Homes

. The application was approved with a note stating: “ Second story

ratio [ cannot ] exceed 40% of first story. Currently you are showing 49%. This is acceptable, but

please be sure to comply on future projects. ” Legacy asserts this discrepancy raises a fact issue

that the ACC selectively enforced th is requirement

. However, there is also evidence in the record

establishing that the calculations thought to be in excess of the 60/40 rule were themselves

incorrect

, and the project actually complied

. Legacy concedes this fact but co ntends it still creates

a fact issue on whether the ACC acted arbitrarily and capriciously because Logan thought he was

granting a variance. Considering that the application actually compli ed with requirements, we find

this information alone to be too speculative to create a fact issue as to whether the ACC in fact

granted a variance when none was needed.

W e conclude that Legacy failed to present any evidence that the ACC selectively enforced

the architectural requirements. Thus, Legacy failed to present evidence rebutting the presumption

that any exercise of discretion by the ACC was reasonable. See T EX

. P ROP

. C ODE A NN

.

§ 202.004(a)

.

We overrule Legacy ’ s first issue.



### V. B REACH O F 

### C ONTRACT

In its second issue, Legacy argues it presented a fact issue on its breach of contract claim.

Legacy maintains t he Association breached the Declaration in two ways: first, by requiring an

entire redesign of the Grumbles L ot when conforming plans were provided; and second, by16 imposing a n “ extra

- contractual ” requirement limiting approved builders such as to exclude

Legacy. Appellees respond that Legacy never submitted a conforming plan for the Grumbles Lot,

and because Legacy built on the Verandero Lot

, the evidence established that no builder

exclusivity was wrongfully imposed.

“ [ A ] ny person entitled to benefit under the terms of a restrictive covenant may enforce it. ”

Moseley v. Arnold

, 486 S.W.3d 656, 662 (Tex. App.

— Texarkana 2016, no pet.)

. Legacy relies on

the same evidence it presented to show that Appellees violated § 202.004 of the Property Code.

Applying the same reasoning as we stated earlier

, we conclude that Legacy failed to raise a genuine

issue of material fact regarding its breach of contract claim. By its plain terms, t he Declaration

imposed a duty on the ACC to enforce the architectural guidelines and requirements of the Signal

Hill Estates subdivision

. To that end, the Declaration vested the ACC with sole discretion to accept

or reject plans if it determined a plan would detract from the general appearance of the

neighborhood

. Legacy agreed to abide by the architectural guidelines when it bought its two lots

.

See Park v. Escalera Ranch Owners’ Ass’n, Inc.

, 457 S.W.3d 571, 601 n.17 (Tex. App.

— Austin

2015, no pet.)

.

As for the Grumbles Lot

, no evidence showed that Legacy ever submitted a plan which

met the second story ratio requirement. Instead, Legacy merely argues that “ multiple Appellees

testified that if the Grumbles plans were resubmitted with incremental changes to comply with the

60/40 Rule and the Sidewall Articulation Requirement, the design would be approved. ” When

viewing the evidence favorable to Legacy, as we must, the evidence established only that the ACC

notified Legacy of its failure to submit a fully completed application conforming with the 60/40

ratio

, and thereafter

, a conflict arose over Legacy ’ s claim that it was otherwise instructed to start

over from scratch, which it then refused to do. Because the evidence conclusively established that17 Legacy ’ s plans were rejected due to their failure to conform to Declaration requirements, and

Legacy provided no controverting evidence establishing a conforming plan, Appellees negated an

essential element of Legacy ’ s breach of contract claim. Moreover, if Appellees employed an extra

contractual requirement intending to exclude Legacy as a builder, it failed in its own endeavor

because the evidence further showed, and Legacy admitted, that the ACC approved Legacy ’ s plan

to build on its Verandero Lot. Accordingly, the trial court did not err by granting summary

judgment on this ground.

We overrule Legacy ’ s second issue.



### VI. T ORTIOUS 

### I NTERFERENCE

In its third issue, Legacy argues it presented evidence creating a genuine issue of fact as to

whether builders Brett Ames, Grant Ames, Doug Clark, and Scott Walther, interfered with

Legacy ’ s contract with the Association or with its prospective contracts with potential purchasers

of the properties. Appellees argue that because the Builders were serving at all times as members

of the Association ’ s ACC, th ey were parties to the Declaration and they could not interfere with

their own contract as a matter of law

. With respect to interference with prospective contracts,

Appellees argue their actions towards Legacy were not independently tortious acts supporting of

a claim.

T ortious interference is established by a showing of: (1) the existence of a valid contract

subject to interference; (2) the defendant ’ s willful and intentional interference with the contract;

(3) injury proximately caused by the interference; and (4) actual damage or loss. Cmty

. Health

Sys

. , 525 S.W.3d at 689

. As a general rule, subject to limited exceptions not urged here, “ a

corporation ’ s agent cannot tortiously interfere with the corporation ’ s contract [

. ] ” Id. at 690

.18 To show tortious interfere nce with Legacy ’ s contract with the Association

, Legacy had to

raise a fact issue that the Builders acted so contrary to the Association ’ s best interests that they

“‘ could only have been motivated by personal interests ’ and thus could not have been acting within

the scope of [their] agency [

. ] ” Id. at 691 (quoting Holloway v. Skinner

, 898 S.W.2d 793

, 796

( Tex. 1995 ) )

. In determining whether the Builders acted against the Association ’ s interests, we

consider the Association ’ s evaluation of the Builders ’ actions

, “ because a principal is a superior

judge of its own best interests[.] ” Id. at 695

. If the Association has not complained about the

Builders ’ actions, then the Builders cannot be held to have acted contrary to the Association ’ s

interests. See i d

.

Legacy has not produced evidence of any complaint from the Association about the actions

of the Builders

. It follows that Legacy cannot establish that the Builders acted contrary to the

Association ’ s interests by interfer ing with the Declaration, the Association ’ s contract with Legacy

.

Legacy is thus unable to establish its claim for tortious interference with its contract with the

Association

. See id

.

Legacy argues the Builders tortiously interfered with its prospective contracts because, in

addition to Appellees ’ actions in enforcing the restrictive covenants, Legacy alleges the Builders

knew there was a reasonable probability that Legacy would enter into a contract to sell the lots at

a profit. Appellees advocate that because Legacy cannot show evidence of “ otherwise wrongful or

tortious ” conduct in order to maintain this cause of action

, it fails as a matter of law

.

Among other elements, to prove tortious interference with prospective contract u al

relations, a party must show a reasonable probability of a pro spective business relationship ; an

independently tortious or unlawful act by the defendant ; a nd actual damage or loss. See Coinmach

Corp. v. Aspenwood Ap t. Corp.

, 417 S.W.3d 909, 923 ( Tex. 2013)

.19 As stated above

, the Builders ’ actions against Legacy amounted t o applications of the

architectural guidelines found in the Declaration and a contractually authorized discretionary

rejection of building plans

. These actions were not violations of the Declaration and are not

independently tortious or unlawful. See id. Legacy has not raised other actions of the Ap p ellees

that are alleged to be independently tortious or unlawful

. We have been presented with no actions

on behalf of Appellees that can form the basis of a claim for tortious interference with prospective

contracts

, and Legacy ’ s cause of action for tortious interference with prospective contracts fails

.

We overrule Legacy ’ s third issue

.



### VII. N EGLIGENT 

### M ISREPRESENTATION

In its fourth issue, Legacy claim s Loomis, the Association, o r S aturn Five made several

representations and supplied false information for the purpose of deceiving or misleading it as to

building a fence along Hamilton Pool Road to limit access to Signal Hill Estates and provide a

buffer between the road and the neighborhood. Appellees moved for summary judgment on the

ground that Legacy ’ s claim of misrepresentation had become moot after Saturn Five built the fence

at issue

.

A party seeking to recover under a claim of negligent misrepresentation must show the

defendant supplied false information for the guidance of others in their business. JPMorgan Chase

Bank, N.A. v. Orca Assets G.P., L.L.C.

, 546 S.W.3d 648, 653 ( Tex. 2018)

.

Even when the evidence is t aken as true, Legacy does not allege that any statement about

the building of a fence had a timeline attached, and none of the evidence submitted established a

date by which the fence needed to be built. Saturn Five did construct the fence along Hamilton

Pool Road along the back of the Ver andero Lot, thus Legacy ’ s claim of negligent

misrepresentation in the building of the fence is moot.20 We overrule Legacy ’ s fourth issue.



### VIII. C ONSPIRACY

In its fifth issue, Legacy asserts it presented evidence establishing a fact issue as to its claim

that Appellees conspired to enforce a builder exclusivity ultra vires of Declaration terms. Legacy

urges that it demonstrated Appellees applied one set of rules to themselves while excluding L egacy

from building on the Grumbles L ot

. Appellees respond they were entitled to summary judgment

as a matter of law because there must be an underlying tort to sustain a cause of action for civil

conspiracy

.

The elements of civil conspiracy are :

(1) a combination of two or more persons; (2) the persons seek to accomplish an

object or course of action; (3) the persons reach a meeting of the minds on the object

or course of action; (4) one or more unlawful, overt acts are taken in pursuance of

the object or course of action; and (5) damages occur as a proximate result.

First United Pentecostal Church of Beaumont v. Parker

, 514 S.W.3d 214, 222 ( Tex. 2017)

.

As the Supreme Court of Texas has recently clarified, civil conspiracy is not an

independent tort. See Agar Corp., Inc. v. Electro Cirs. Int ’ l, LLC

, 580 S.W.3d 136, 142

( Tex. 2019)

. T o prevail on a claim for civil conspiracy, a party must demonstrate an underlying

tort that has caused damages. Id. Legacy urges the underlying tort here is Appellees ’ actions in

applying one set of rules to themselves and excluding it from building in Signal Hill

. As we have

discussed above, these actions

, however articulated by Legacy, demonstrated, at most, that

Appellees applied the a rchitectural guidelines of the Declaration or otherwise exercised

discretionary authority to uphold the general appearance of the neighborhood. We conclude t hese

actions do not constitute independent torts as a matter of law, nor would they support a required

element of a civil conspiracy claim

.21 We overrule Legacy ’ s fifth issue.



### IX. B REACH OF 

### F IDUCIARY 

### D UTIES

In its sixth issue, Legacy claims the trial court erred in granting summary judgment on its

fiduciary duty claim because the Association ’ s officers and directors owed Legacy a fiduciary duty

as a matter of law. Appellees urge there is no fiduciary duty between the Builders, the Association,

and Legacy, and even if there were, it was not breached

. The breach alleged by Legacy is

preserving exclusivity for the Builders ’ Companies when the Declaration did not provide for that.

We agree with Appellees that

, because Legacy did, in fact, build in Signal Hill

, any exclusivity

was not preserved, and the breach alleged by Legacy did not occur.

Further, Appellees argue no fiduciary duty existed

. T o prevail on a claim of breach of

fiduciary duty, a party must establish

, among other elements, that a fiduciary relationship existed

between the plaintiff and defendant. See Meyer v. Cathey

, 167 S.W.3d 327, 331 ( Tex. 2005) (per

curiam)

. “ A fiduciary relationship is an extraordinary one that the law does not recognize lightly. ”

Harris By and Through Harris v. Spires Council of Co

- Owners

, 981 S.W.2d 892, 898

( Tex. App.

— Houston [1st Dist.] 1998, no pet. ). “ [A]lthough a fiduciary or confidential

relationship may arise from the circumstances of a particular case, to impose such a relationship

in a business transaction, the relationship must exist prior to, and apart from, the agreement made

the basis of the suit. ” Severs v. Mira Vista Homeowners Ass ’ n, Inc.

, 559 S.W.3d 684, 703

( Tex. App.

— Fort Worth 2018, pet. denied) (citing Schlumberger Tech. Corp. v. Swanson

, 959

S.W.2d 171, 176 ( Tex. 1997) ). Legacy has not presented evidence of any fiduciary or confidential

relationship that existed prior to, and apart from, the Declaration.

The Association, as a non

- profit corporation, is governed by C hapter 22 of the Texas

Business Organizations Code. See T EX

. B US

. O RG

. C ODE A NN

. §§ 22.001

– 22.516. Under such22 provisions, a director of a non

- profit corporation “ is not considered to have the duties of a trustee

of a trust with respect to the corporation or with respect to property held or administered by the

corporation[.] ” See id. § 22.223.

Legacy argues the fiduciary relationship is created by the terms of the Declaration

, but

A rticle 3.08 of the Bylaws creates a lesser duty of ordinary care on the part of the Directors

. S ection

7.001(c) of the Business Organizations Code

, cited by Legacy

, discusse s limitations of liability on

governing persons within corporations but does not create duties of care. See id. § 7.001

. Legacy

cites no authority for the proposition that the Builders owed Legacy a fiduciary duty

. Further, as

the Association can only act through its directors, it cannot be held to a fiduciary level of care

when such duty is not in fact imposed on its directors pursuant to the Declaration terms. Lastly

,

Legacy did not preserve for appeal a claim of informal fiduciary duty, as it never pleaded the

existence of such an informal relationship

. See T EX

. R. A PP

. P

. 33.1

.

As previously stated, fiduciary relationships are extraordinary and not recognized lightly.

Legacy has not presented evidence of any statutor ily or contractual ly created fiduciary relationsh ip

to counter the authority of the Business Organizations Code and the Bylaws that indicate a

fiduciary duty is not owed. Legacy did not preserve a claim of informal fiduciary relationship and

it has not shown evidence that any relationship of trust and confidence existed between the parties

prior to, and apart from, the contractual relationship. Appellees have established as a matter of law

that no fiduciary relationship existed, thus L egacy cannot establish a claim for breach of that

relationship.

We overrule Legacy ’ s sixth issue.23 

### X. R EMAINING 

### I SSUES

In its seventh issue, Legacy asserts Appellees ’ affirmative defense of waiver was not

properly before the court for determination at the summary judgment stage

. Because we overruled

each of Legacy ’ s issues challenging the trial court ’ s grant of summary judgment on each claim,

we need not reach the waiver issue. See T EX

. R. A PP

. P. 47.1

.

In its eighth issue, Legacy conditionally argues that should it prevail on appeal that

attorney ’ s fees and costs must be overturned as Appellees would no longer qualify as prevailing

parties in that event

. Because we overrule d all issues and Appellees remain as prevailing parties,

we affirm the trial court ’ s award of attorney ’ s fees and costs.

We overrule Legacy ’ s seventh and eighth issues.



### XI. C ONCLUSION

We affirm the judgment of the trial court.

G INA M

. PALAFOX

, Justice

June 12

, 2023

Before Rodriguez, C.J., Palafox, and Soto, J J

.