Reversed and Remanded and Memorandum Opinion filed May 23 , 2024.

In The



## Fourteenth Court of Appeals

NO. 14

- 22

- 00854

- CV

MCDANIEL HOMES, LLC , Appellant

V.

MEYERLAND COMMUNITY IMPROVEMENT ASSOCIATION , Appellee

On Appeal from the 61st District Court

Harris County, Texas

Trial Court Cause No. 2022

- 34368



### M E M O R A N D U M O P I N I O N

A builder that owns property in a subdivision in Houston filed a declaratory

judgment action against the organization in charge of enforcing deed restrictions in

that subdivision seeking a declaration that one of the restrictions has been waived

and abandoned and is no longer enforceable. The trial court granted the

organization ’ s motion to dismiss under Texas Rule of Civil Procedure 91a.

Concluding that the trial court erred, we reverse and remand.2 I. F ACTUAL AND P ROCEDURAL B ACKGROUND

Appellant/plaintiff McDaniel Homes, LLC (“McDaniel”) filed suit against

appellee/defendant Meyerland Community Improvement Association (the

“Association”) alleging that McDaniel owns property in the Meyerland subdivision

in Houston, Texas and that the Association is the organization in charge of

enforcing deed restrictions in that subdivision . McDaniel asserted that one of the

restrictions provides that “ ‘[u] nroofed stairs, steps, ramps, and landings, but not

porches may be: up to five feet (5’) outside of the front building (setback) line

. . .

.’ and no more ” (the “Restriction”). McDaniel sought a declarat ory judgment that

the Restriction has been waived and abandoned and is no longer enforceable , as

well as reasonable and necessary attorney’s fees.

The Association answered, denied McDaniel’s allegations, and verified that

(1) the Association is legally justified to enforce the Association’s restrictions and

policies ; (2) the Association implements consistent enforcement of the deed

restrictions; and (3) the Association specifically denies that dozens of houses

violate the Restriction.

The Association filed a motion to dismiss under Texas Rule of Civil

Procedure 91a (the “Rule 91a Motion”)

, asserting that McDaniel’s pleadings were

too vague and broad and consequently fail ed to allege any claims regarding the

Restriction. Therefore, the Association asserted that McDaniel’s claims have no

basis in fact or law and should be dismissed under Rule 91a

. The Association also

sought its reasonable and necessary attorney’s fees.

McDaniel responded in opposition to the Rule 91a M otion, and McDaniel

also amended its petition to add more specific factual allegations. McDaniel’s

amen d ed petition was untimely under Rule 91a. See Tex. R. Civ. P. 91a.5(b),(c).

The trial court sustained the Association’s objection that the amended petition was3

untimely , granted the Rule 91a Motion, and ordered that the Association should be

awarded its reasonable and necessary attorney’s fees and costs in an amount to be

determined at a later hearing. McDaniel filed a motion for reconsideration that the

trial court denied. The Association filed a motion for attorney’s fee s . The trial

court granted the motion and awarded the Association attorney’s fees , including

conditional awards of appellate attorney’s fees. With this order the trial court had

disposed of all c laims and all parties, thus creating a final judgment. McDaniel

timely perfected this appeal.

II. I SSUES AND A NALYSIS

A. Did the trial court err in granting the Rule 91a Motion?

Under the first issue, McDaniel argues that the trial court erred in granting

the Rule 91a Motion

. Texas Rule of Civil Procedure 91a provides that a party

“may move to dismiss a cause of action on the grounds that it has no basis in law

or fact.” Tex. R. Civ. P. 91a.1. “A cause of action has no basis in law if the

allegations, taken as true, together with inferences reasonably drawn from them, do

not entitle the claimant to the relief sought.” Id. “A cause of action has no basis in

fact if no reasonable per son could believe the facts pleaded.” Id. To determine if

the cause of action has a basis in law, we construe the pleadings liberally in favor

of the plaintiff, look to the pleader’s intent, and accept as true the factual

allegations in the plaintiff’s pleadings. See Conestoga Trust Servs., LLC v. Focus

Medical Underwriters, LLC , No. 14

- 20

- 00302

- CV, 2022 WL 599344, at *2 (Tex.

App.

— Houston [14th Dist.] Mar. 1, 2022, no pet.) (mem. op.).

E xcept as required by R ule 91a.7 regarding attorney’s fees, i n ruling on a

Rule 91a motion

, a court “may not consider evidence

. . . and must decide the

motion based solely on the pleading of the cause of action.” Tex. R. Civ. P. 91a.6.

The Supreme Court of Texas has concluded that this limitation applies to factual4

rather than legal matters. See Bethel v. Quilling, Selander, Lownds, Winslett &

Moser, P.C. , 595 S.W.3d 651, 655 (Tex. 2020). Thus, as to factual matters, a court

may not consider evidence and must decide a Rule 91a motion based solely on the

plaintiff’s pleading

, but Rule 91a contemplates that a court may consider the

substance of a Rule 91a motion and the arguments at a hearing on the motion , in

addition to the plaintiff’s pleadings, in deciding the motion

. See id

. In deciding a

Rule 91a motion, a court may consider the defendant’s pleadings if doing so is

necessary to make a legal determination as to whether an affirmative defense is

properly before the court. See id . at 656. In deciding whether to affirm the trial

court’s granting of a Rule 91a motion, we are limited to the ground s raised in the

Rule 91a motion. See Conestoga Trust Servs., LLC , 2022 WL 599344, at *2. We

review the merits of a Rule 91a motion de novo. Bethel , 595 S.W.3d at 654.

1. The Allegations in the Original Petition

McDaniel filed this suit under the Declaratory Judgments Act assert ing that

t he Association has waived and abandoned its right to enforce the Restriction.

McDaniel requested that the trial court render a judgment declaring that a ny deed

restriction or other restriction that limits the extent to which stairs, steps, ramps, or

landings can extend outside of the “ front building (setback) line ” has been waived

and abandoned by the Association and is therefore no longer enforceable

.

McDaniel contends that a genuine controversy exists between McDaniel and the

Association that would be terminated by the granting of a declaratory judgment. In

its Original Petition 1 McDaniel alleges the following facts : 2

1 The trial court sustained the Association’s timeliness objection to McDaniel’s First Amended Petition, and McDaniel has not challenged this ruling on appeal. Therefore, we analyze this appeal based on McDaniel’s Original Petition.

2 The Association asserts that McDaniel does not plead any facts to support its claims. This assertion is incorrect, as shown by the pleaded facts listed below

.5

• McDaniel owns property in the Meyerland subdivision in Harris County,

Texas.

• McDaniel builds homes in the Meyerland subdivision in Harris County,

Texas.

• T he Association is the organization in charge of enforcing deed restrictions and other restrictions on the Meyerland subdivision.

• According to documents adopted by the Association, for properties in the Meyerland subdivision, there is the following limitation on how far stairs can protrude toward the street from the front of a residence: “‘[u]nroofed stairs, steps, ramps, and landings, but not porches may be: up to five feet (5’) outside of the front building (setback) line . . . .’ and no more (the ‘Restriction’).”

• Although the Restriction is contained in documents adopted by the Association, the Association has not enforced it on any kind of consistent

basis.

• Throughout the neighborhood there are dozens of houses that violate the Restriction in plain view for all to see, and the Association leaves them

alone.

• I n spite of the Association’s ongoing and consistent failure to enforce the Restriction, the Association has chosen to enforce the Restriction against McDaniel, and McDaniel believes this is unfair and illegal selective

enforcement.

2

. No Basis in Fact

A cause of action has no basis in fact if no reasonable person could believe

the facts pleaded. Tex. R. Civ. P. 91a.1. Though the Association asserts generally

that McDaniel’s claims have no basis in fact, the Association has not asserted that

no reasonable person could believe a fact alleged by McDaniel, nor has the

Association presented any argument or analysis in support of the proposition that

no reasonable person could believe one or more of the facts alleged by McDaniel.

After reviewing each of the f acts alleged by McDaniel in the Original Petition, we

conclude that a reasonable person could believe each of them. See Drake v.

Walker

, No. 05

- 14

- 00355

- CV, 2015 WL 2160565, at *3 (Tex. App.

— Dallas May

8, 2015, no pet.) (mem. op.)

. Therefore, we conclude that the trial court erred to the6

extent it determined that McDaniel ’s cause of action has no basis in fact. See Tex.

R. Civ. P. 91a.1 ; Drake

, 2015 WL 2160565, at *3.

3

. No Basis in Law

A cause of action has no basis in law if the plaintiff’s allegations, taken as

true, together with the inferences reasonably drawn from them, do not entitle the

claimant to the relief sought. See Tex. R. Civ. P. 91a.1. The issue of standing

focuses on whether a party has a sufficient relationship with the lawsuit so as to

have a “justiciable interest” in its outcome. Austin Nursing Ctr., Inc. v. Lovato , 171

S.W.3d 845, 848 (Tex. 2005). A plaintiff has standing when it is personally

aggrieved. Id

. The standi ng doctrine requires that there be a real controversy

between the parties that actually will be determined by the judicial declaration

sought. Id . at 849.

To defeat enforcement of a restrictive covenant, a party may assert that the

restrictive covenant has been abandoned and its enforcement has been

waived

. See Moran v. Memorial Point Property Owners Ass ’ n , 410 S.W.3d 397,

403 (Tex. App.

— Houston [14th Dist.] 2013, no pet.)

. A party may also seek a

declaratory judgment that a restrictive covenant has been abandoned and its

enforcement has been waived. See EWB

- I, LLC v. Plazamericas Mall Texas, LLC

, 527 S.W.3d 447, 464

– 65 (Tex. App.

— Houston [1st Dist.] 2017, pe t. denied)

(property owner sought declaratory judgment that restrictive covenants were

unenforceable and had been waived)

. To establish this defense, a party must prove

that violations of the covenant then existing are so great as to lead the mind of the

average person to reasonably conclude that the restriction in question has been

abandoned and its enforcement waived. See id. In making this determination,

courts consider factors such as the number, nature, and severity of the existing

violations, any prio r enforcements of the restriction, and whether it is still possible7

to realize to a substantial degree the benefits of the restriction despite the

violations. See id.

Taking as true the factual allegations in the Original Petition and the

inferences reasonably drawn therefrom yields the following facts:

• McDaniel owns real property in Meyerland and builds homes there.

• T h e Association is i n charge of enforcing deed restrictions i n Meyerland

.

• T he Restriction is a deed restriction that applies to real property in Meyerland

.

• Throughout Meyerland there are dozens o f houses that violate the Restriction in plain view, but the Association has taken no steps to enforce the Restriction against these properties

.

• T he Association has enforce d the Restriction against real property in Meyerland owned by McDaniel but not against dozens of properties in Meyerland that violate the Restriction.

• McDaniel believes this is unfair and illegal selective enforcement.

See Tex. R. Civ. P. 91a.1. The Association contends that the Restriction has not

been waived or abandoned and still may be enforced. C onstru ing the pleadings

liberally i n McDaniel’s favor , look ing to the pleader’s intent, and accept ing as true

the factual allegations in the Original Petition and the inferences reasonably drawn

therefrom yields the following:

• McDaniel has a sufficient relationship with th is lawsuit so as to have a “justiciable interest” in its outcome

.

• McDaniel is personally aggrieved

.

• A real controversy exists between McDaniel and the Association that actually will be determined by the judicial declaration sought

.

• McDaniel has standing to seek declaratory relief regarding the Restriction

.

• T he existing violations of the Restriction are so great as to lead the mind of8

the average person to reasonably conclude that the R estriction has been

abandoned and its enforcement waived.

See Tex. R. Civ. P. 91a.1 ; Longhorn Creek, Ltd. v. Gardens of Connemara, Ltd

.,

No. 05

- 22

- 00842

- CV, 2024 WL 685931, at *6

– 7 (Tex. App.

— Dallas Feb. 20,

2024, pet. filed) (concluding that plaintiff pleaded a justiciable controversy that

would be resolved by the declarations sought and that plaintiff’s declaratory

judgment action had a basis in law); Conestoga Trust Servs., LLC , 2022 WL

599344, at *2 ; Kings River Trail Ass’n, Inc. v. Pinehurst Trail Holdings, L.L.C

., 447 S.W.3d 439, 442, 447

– 48 (Tex. App.

— Houst on [14th Dist.] 2014, pet. denied)

(holding that plaintiffs had standing to seek declaratory judgment as to

applicability of a “Golf Course Use Only” restriction to certain real property) ;

Moran

, 410 S.W.3d at 403

.

The Association essentially argu es that the trial court properly granted the

Rule 91a Motion because McDaniel failed to prove its allegations. According to

the Association, McDaniel claims it is a “builder” and “owner” of homes within

the Meyerland subdivision

, but McDaniel “ does not substantiate these claims in

any way

. ” The Association also a rgue s that McDaniel “ fails to provide any support

for [its] allegation that the Association leaves the noncompliant homeowners

‘ alone. ’” The Association contends that “ McDaniel did not meet its burden of

proof to establish a cause of action for abandonment and waiver of the deed

restriction

. ” These assertions by the Association miss the mark because courts

determine whether a cause of action has a basis in law under Rule 91a based on t he

allegations in the pleading and the inferences reasonably drawn therefrom; courts

do not require the plaintiff to substantiate, prove, or provide evidentiary support for

the allegations in the plai ntiff’s pleading. See Tex. R. Civ. P. 91a.1, 91a.6; Bethel

,

595 S.W.3d at 654 ; Longhorn Creek, Ltd. , 2024 WL 685931, at *7 (stating that

“[t]he question before us is not whether [the plaintiff] proved its waiver claim”).9

The Association also asserts that the factual allegation s in the Original

Petition are not specific or detailed enough. The Association contends that

McDaniel f

ailed to plead factual allegations with sufficient particularity

. The

Association complains McDaniel does not (1) identify the properties McDaniel

allegedly owns or owned, (2) state when it became an owner
, (3) mention whether

it continues to be an owner, (4) identify the properties it built and when, (5)

describe adequate ly the property it purporte dly owns subject to the R estriction, (6)

provide details regarding purported violations of the Restriction or enforcement

actions by the Association as to McDaniel or any other property in the Meyerland

subdivision

, (7) state the circumstances of McDaniel’s violation of the Restriction,

when the violation occurred, what actions the Association took to enforce the

violation and when, whether the violation was cured or ongoing, whether

additional enforcement is threatened or imminent ; or (8) describe how the alleged

noncompliant homes violate d the Restriction. The Association does not cite any

case holding that pleading one or more of these details is required to avoid

dismissal under Rule 91a. Although the Original Petition is terse and does not

provide various details that could have been pleaded, the issue is whether,

co nstru ing the pleadings liberally i n McDaniel’s favor , look ing to the pleader’s

intent, and accept ing as true the factual allegations in the Original Petition and the

inferences reasonably dra wn therefrom, McDaniel is entitled to a declaratory

judgment that the Restriction has been waived and abandoned and is no longer

enforceable

. The issue is not whether McDaniel omitted various details regarding

its cause of action. A petition’s failure to state sufficient detail regarding the facts

upon which a claim is based is not an argument upon which dismissal may be

granted under Rule 91a. See Longhorn Creek, Ltd. , 2024 WL 685931, at *7

.

The As s ociation also states that McDaniel failed to describe how the alleged10

dozens of homes violating the Restriction constitute s wavier of the Restriction in

the context of a community with more than 1,000 homes

. Though the Association

stated in the Rule 91a motion that there are more than 1,000 homes in the

community, the Original Petition does not state how many homes are subject to the

Restriction, and as to this factual matter, we must decide the Rule 91a Motion

based only on the Original Petition, not on the facts stated in other filings. See

Bethel , 595 S.W.3d at 655

.

Co nstru ing the Original Petition liberally i n McDaniel’s favor , look ing to the

pleader’s intent, and accept ing as true the factual allegations in the Original

Petition and the inferences reasonably drawn therefrom, McDaniel is entitled to a

declaratory judgment that the Restriction has been waived and abandoned and is no

longer enforceable

. See Tex. R. Civ. P. 91a.1 ; Longhorn Creek, Ltd. , 2024 WL

685931, at *6

– 7 ; Conestoga Trust Servs., LLC , 2022 WL 599344, at *2 ; Kings

River Trail Ass’n, Inc. , 447 S.W.3d a t 442, 447

– 48 ; Moran

, 410 S.W.3d at 403

. Therefore, w e conclude that the trial court erred to the extent it determined that

McDaniel’s declaratory judgment action has no basis in law, and we sustain the

first issue.

B

. Did the trial court err in awarding attorney’s fees ?

Under the second issue, McDaniel argues that the trial court erred in

awarding attorney’s fees based on a Rule 91a dismissal that should not have been

granted. In reversing the trial court’s dismissal order, we also sustain the second

issue and reverse the trial court’s order granting the Association’s request for

attorney’s fees. See Longhorn Creek, Ltd. , 2024 WL 685931, at * 8; Sanchez v.

Striever , 614 S.W.3d 233, 248 (Tex. App.

— Houston [14th Dist.] 2020, no pet.).11 II I

. C ONCLUSION

Under the applicable legal standards, McDaniel’s declaratory judgment

action has a basis in law and in fact . T he trial court erred in granting the Rule 91a

Motion and in awarding attorney’s fees. Therefore, we reverse the trial court’s

final judgment and remand the case to the trial court for further proceedings.

/s/ Randy Wilson

Justice

Panel consists of Justices Jewell

, Spain

, and Wilson

.