1 

In The 

Court of Appeals 

Ninth District of Texas at Beaumont 

_________________ 

NO. 09-16-00325-CV 

_________________ 

STEVEN L. BAHR and CYNTHIA L. BAHR, Appellants 

V. 

EMERALD BAY PROPERTY OWNERS ASSOCIATION, INC., Appellee 

________________________________________________________________________ 

On Appeal from the 258th District Court 

Polk County, Texas 

Trial Cause No. CIV29248 

________________________________________________________________________ 

MEMORANDUM OPINION 

Emerald Bay Property Owners Association, Inc. (“the Association”) filed suit 

against Steven L. Bahr and Cynthia L. Bahr for an alleged violation of a fence 

provision contained in Emerald Bay Subdivision’s 1999 Amended Deed 

Restrictions. The Bahrs responded by filing a counterclaim against the Association 

and its directors individually. In response to a Rule 91a motion to dismiss, the trial 

court dismissed the Bahrs’ counterclaim against all defendants. The original parties 
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then filed competing motions for summary judgment. After a hearing, the trial court 

denied the Bahrs’ motion for summary judgment and granted summary judgment in 

favor of the Association. The Bahrs appeal the trial court’s judgment. We affirm the 

trial court’s final judgment. 

I. Background 

The underlying lawsuit arises from dispute over a fence erected by the Bahrs. 

In its original petition, the Association detailed the existence of deed restrictions 

burdening the property, and asserted the most recent applicable restrictions were 

contained in the 1999 Amended Restrictions, specifically paragraph 4(B). The 

provision contained in 4(b) provides: 

(B) No wall, fence, planter[,] or hedge shall be erected or constructed 

on lots that do not meet the following conditions: 

No wall, fence, planter[,] or hedge shall be erected or constructed 

between the front property line and a point 8 feet in front of the dwelling 

or associated garage or shed and within accordance with the front set 

back line restrictions. No wall[,] fence, planter[,] or hedge will be 

erected or constructed on any corner lot between the side property line 

and the side set back line adjacent to the street. Walls, fences, plants, or 

hedges may be erected, but may not extend more than 8 feet from a 

dwelling or associated garage or shed. Decorative fences along the front 

easement are permitted with approval of the Board. Fences for child 

and pet containment and safety are permitted, but can not [sic] extend 

more than 8 feet from the associated dwelling, garage, or shed and must 

be approved by the Board of Directors. (Emphasis added). 
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The Association claimed that the Bahrs’ predecessors in title burdened the 

property at issue with the 1999 Amended Deed Restrictions by executing the 

“Acknowledgment by Property Owner(s) to Amended Restrictions for Emerald Bay 

Subdivision, Polk County, Texas” on August 31, 1999. The record reflects that the 

subsequent conveyances of the property at issue, including the conveyance to the 

Bahrs, referenced the amended restrictions in the deeds. 

The Association presented evidence that other property owners in the 

neighborhood had previously sought approval from the Association’s board of 

directors in conformance with the 1999 Amended Restrictions when seeking 

permission to build various items covered by the Restrictions. The record also 

reflects that the Bahrs themselves acknowledged the existence of the Association 

and the restrictions when they sought permission to extend their garage the previous 

year. 

When the Bahrs constructed a fence on the property in April 2014, the 

Association’s Secretary sent an email to Steven Bahr advising that the fence was in 

violation of the 1999 Amended Restrictions and that the Bahrs would have to remove 

the fence. The Association subsequently sent a certified letter regarding the deed 

restriction violation notice to the Bahrs, advising them they needed to remove the 

fence pursuant to chapter 209 of the Property Code. The Bahrs responded through 
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their attorney stating that they denied any violation alleged in the Association’s letter 

and that they would continue to defend and enjoy their property as they saw fit, along 

with providing a trespass warning to the Association regarding their property. 

In its original petition, the Association sought a temporary injunction, a 

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

Property Code, and attorney’s fees pursuant to section 5.006 of the Property Code. 

See Tex. Prop. Code Ann. §§ 5.006, 202.004(c) (West 2014). In response, the Bahrs 

filed their original answer, special exceptions, affirmative defenses, and 

counterclaim. In the counterclaim, they sued the Association and its board of 

directors, individually. The counterclaim sought declaratory judgment pursuant to 

chapter 37 of the Texas Civil Practices and Remedies Code. See Tex. Civ. Prac. 

Rem. Code Ann. §§ 37.001–.011 (West 2015). The Association filed a Rule 91a 

motion to dismiss asserting the Bahrs’ counterclaims had no basis in law or fact. See

Tex. R. Civ. P. 91a. In response, the Bahrs filed their first amended answer, special 

exceptions, affirmative defenses, and counterclaim. The trial court granted the 

Association’s Rule 91a motion to dismiss and dismissed the Bahrs’ counterclaim as 
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to all defendants.1, 2

 The original parties then filed competing motions for summary 

judgment. After a hearing, the trial court denied the Bahrs’ motion for summary 

judgment, but granted the Association’s motion for summary judgment. 

The Bahrs present three issues on appeal. First, they assert the trial court erred 

by granting the Association’s temporary injunction. Second, the Bahrs assert the trial 

court’s Rule 91a dismissal was “manifest constitutional error and manifest error on 

the entire case.” Finally, the Bahrs argue the trial court’s summary judgment in favor 

of the Association was “manifest constitutional error and manifest error on the entire 

case.”3

 

 1

 The Bahrs attempted to pursue an interlocutory appeal of the trial court’s 

Rule 91a dismissal of their counterclaims by filing a “Motion for Order for 

Interlocutory Appeal on Controlling Question of Law.” Despite the trial court’s 

denial of the Bahrs’ request to file an interlocutory appeal, the Bahrs filed a notice 

of interlocutory appeal. This court dismissed the interlocutory appeal for lack of 

jurisdiction. See Bahr v. Emerald Bay Prop. Owners Ass’n, Inc., No. 09–15–00363–

CV, 2016 WL 1054506, at *1 (Tex. App.—Beaumont, Mar. 17, 2016, no pet.) (mem. 

op.).

2

 The trial court’s order dismissed the Bahrs’ counterclaims jointly against all 

defendants to the counterclaim. The individual directors, namely Sharon Jeans, Ted 

Ankney, and Martha Freeman, have not filed briefs in this appeal. 

3

 Despite the Bahrs’ complaints of “manifest constitutional error,” nowhere in 

their brief is the constitution cited, and the excerpts from the reporter’s record cited 

do not direct us in any way as to which argument they support. An appellant’s brief 

must “contain a clear and concise argument for the contentions made, with 

appropriate citations to authorities and to the record.” Tex. R. App. P. 38.1(i). 
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II. Issue One: Temporary Injunction 

While the Bahrs complain in their brief about a temporary injunction entered 

by the trial court, the trial court issued a permanent and mandatory injunction in its 

final summary judgment order, making the issue of a temporary injunction moot. 

Isuani v. Manske-Sheffield Radiology Group, P.A., 802 S.W.2d 235, 236–37 (Tex. 

1991) (holding appeals court erred in reaching merits of interlocutory appeal of 

temporary injunction after trial court entered permanent injunction rendering 

temporary injunction moot). Therefore, we overrule the Bahrs’ first issue. 

III. Issue Two: Rule 91a Motion to Dismiss 

A. Standard of Review 

 In their second issue, the Bahrs argue the trial court erred in granting the 

Association’s Rule 91a motion to dismiss their counterclaim against all defendants. 

Rule 91a allows a party to move to dismiss a cause of action that has no basis in law 

or fact. Tex. R. Civ. P. 91a.1. “We review the merits of a Rule 91a motion de novo 

because the availability of a remedy under the facts alleged is a question of law and 

the rule’s factual-plausibility standard is akin to a legal-sufficiency review.” City of 

Dallas v. Sanchez, 494 S.W.3d 722, 724 (Tex. 2016) (citing Wooley v. Schaffer, 447 

S.W.3d 71, 75–76 (Tex. App.—Houston [14th Dist.] 2014, pet. denied)); 

GoDaddy.com, LLC v. Toups, 429 S.W.3d 752, 754 (Tex. App.—Beaumont 2014, 
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pet. denied). In likening a Rule 91a motion to dismiss to a federal Rule 12(b)(6) 

motion, this court noted “dismissal is appropriate if the court determines beyond 

doubt that the plaintiff can prove no set of facts to support a claim that would entitle 

him to relief.” Toups, 429 S.W.3d at 754 (citing Scanlan v. Tex. A&M Univ., 343 

F.3d 533, 536 (5th Cir. 2003)); see also Fed. R. Civ. P. 12(b)(6). Whether a cause of 

action has any basis in law or fact is a legal question, based on allegations in the live 

pleadings and any attachments. Weizhong Zheng v. Vacation Network, Inc., 468 

S.W.3d 180, 183 (Tex. App.—Houston [14th Dist.] 2015, pet. denied) (citing 

Wooley, 447 S.W.3d at 76). 

B. Analysis 

 The Bahrs’ counterclaim sought a declaratory judgment pursuant to Chapter 

37 of the Civil Practices and Remedies Code, seeking a declaration that the 

Association and its officers “had no authority to enforce the deed restrictions and 

have waived the right to enforce the building of a fence on the Bahr’s (sic) property, 

in that the same kind of fences have been approved[.]” See Tex. Civ. Prac. & Rem. 

Code Ann. §§ 37.001–.011. In support of their counterclaim, the Bahrs asserted that 

the Association was involuntarily dissolved by the Secretary of State on March 8, 

1995, for failure to pay franchise taxes and was not reinstated until July 28, 2014. 

Thus, the Bahrs asserted the 1999 Amended Restrictions containing the fence 
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provision were void as they were filed while the Association’s “right to conduct 

business affairs was forfeited, involuntarily dissolved, and made null and void[.]” 

The Bahrs essentially made three arguments in their counterclaim. Initially, 

they assert the Association waived its right to enforce the Amended Restrictions. In 

their amended answer and counterclaim, the Bahrs seemed to assert that waiver or 

abandonment of the deed restrictions by the Association entitled them to affirmative 

relief. “The Declaratory Judgments Act is ‘not available to settle disputes already 

pending before a court.’” See BHP Petroleum Co., Inc. v. Millard, 800 S.W.2d 838, 

841 (Tex. 1990) (quoting Heritage Life v. Heritage Group Holding, 751 S.W.2d 229, 

235 (Tex. App.—Dallas 1988, writ denied)). A declaratory judgment counterclaim 

that has greater ramifications than the original suit is allowed. Id. at 842. In order to 

have “greater ramifications” the counterclaim must seek some sort of affirmative 

relief rather than assert a mere denial of the plaintiff’s claim. Howell v. Mauzy, 899 

S.W.2d 690, 706 (Tex. App.—Austin 1994, writ denied); HECI Expl. Co. v. Clajon 

Gas Co., 843 S.W.2d 622, 638–39 (Tex. App.—Austin 1992, writ denied). A 

defensive pleading must allege the defendant’s cause of action entitles him to the 

recovery of benefits, compensation, or relief, independent of the plaintiff’s claim, in 

order to qualify as a claim for affirmative relief. Gen. Land Office of Tex. V. OXY 

U.S.A., Inc., 789 S.W.2d 569, 570 (Tex. 1990) (internal citations omitted). 
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Waiver and abandonment are affirmative defenses to the Association’s claims 

against the Bahrs, not a claim that would entitle the Bahrs affirmative declaratory 

relief by a counterclaim, as the issue of the enforceability of the deed restrictions 

was already before the trial court. See BHP Petroleum, 800 S.W.2d at 841–42. There 

are certain situations where a declaratory judgment counterclaim is appropriate for 

conflicts surrounding deed restrictions, for example when parties seek a declaration 

that the amendments are void in their entirety or seek to clarify and define the parties’ 

ongoing relationship in the future. See Owens v. Ousey, 241 S.W.3d 124, 132–33 

(Tex. App.—Austin 2007, pet. denied). That is not the case here. The Bahrs sought 

a declaration that the Association “had no authority to enforce the restrictions and 

have waived the right to enforce the building of a fence on the Bahr’s (sic) 

property[.]” The Bahrs’ counterclaim did not seek to clarify or define the 

relationship for the future, but rather, sought to determine whether the Association 

could enforce the fence provision against the Bahrs’ property in this particular 

instance. Cf. id. at 133. Thus, the counterclaim sought nothing beyond that which 

was already before the trial court. 

The Bahrs’ emphasis on the Association’s forfeiture of its corporate status is 

misplaced. Section 22.362 of the Nonprofit Corporations Act governs the effect of a 

forfeiture. See Tex. Bus. Orgs. Code Ann. § 22.362 (West 2012). That section 
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provides that “[t]he forfeiture of the right to conduct affairs in this state does not[] 

impair the validity of a contract or act of the corporation[.]” Id. § 22.362(c)(1). 

Despite the Bahrs’ assertion to the contrary, the validity of the 1999 Amended Deed 

Restrictions was not impacted by the tax forfeiture. See id. The Association paid the 

requisite penalties, filed the necessary report, and its corporate status was reinstated 

on July 28, 2014, prior to the initiation of the underlying lawsuit. The reinstatement 

letter is attached to the Bahrs’ amended answer and counterclaim. While under the 

effect of a forfeiture, a corporation may not maintain an action, suit, or proceeding 

in court; however, the Association was reinstated as a corporation prior to the 

commencement of the underlying lawsuit in this case. See id. § 22.362(a)(1); id. § 

22.365 (West 2012); Lyons v. Texorado Oil & Gas Co., 91 S.W.2d 375, 378 (Tex. 

Civ. App.—Amarillo 1935, writ ref’d) (holding a contract was not void that was 

made by a domestic corporation while its right to do business in Texas was forfeited 

for failure to pay its franchise tax). 

Finally, the Bahrs also assert that the Association did not have the authority 

to amend the deed restrictions until June 1, 2000. However, the original restrictions 

executed on March 25, 1983, and attached to the Bahrs’ live pleading, provided they 

“shall be binding upon all parties and all persons claiming under them until June 1st, 

2000 . . . unless an instrument signed by a majority of the then owners of the tract 
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has been recorded, agreeing to change said covenants in whole or in part.” (Emphasis 

added). The plain language of the restrictions allowed for a majority of the owners 

to change the covenants. The original dedicatory instrument was attached to the 

Bahrs’ live pleading, together with the executed acknowledgments of a majority of 

the owners that showed the ratification of the 1999 Amended Restrictions. 

Therefore, the Bahrs’ arguments lack merit. 

 Because the live pleadings establish the Bahrs’ counterclaim had no basis in 

law or fact, the trial court did not err in granting the Association’s 91a motion to 

dismiss as to the Bahrs’ counterclaim. See Tex. R. Civ. P. 91a.1. We overrule the 

Bahrs’ second issue on appeal. 

IV. Issue Three: Summary Judgment 

A. Standard of Review 

 We review a summary judgment de novo. Provident Life & Accident Ins. Co. 

v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). In doing so, “[w]e review the evidence 

presented in the motion and the response in the light most favorable to the party 

against whom summary judgment was rendered, crediting evidence favorable to that 

party if reasonable jurors could, and disregarding contrary evidence unless 

reasonable jurors could not.” Mann Frankfort Stein & Lipp Advisors, Inc. v. 

Fielding, 289 S.W.3d 844, 848 (Tex. 2009) (citing City of Keller v. Wilson, 168 
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S.W.3d 802, 807, 827 (Tex. 2005)). The moving party bears the burden of showing 

no genuine issue of material fact exists, and it is entitled to judgment as a matter of 

law. Tex. R. Civ. P. 166a(c); Mann Frankfort, 289 S.W.3d at 848; Knott, 128 S.W.3d 

at 216. When both sides move for summary judgment, granting one and denying the 

other, we review summary judgment evidence presented by both sides and determine 

all questions presented. Mann Frankfort, 289 S.W.3d at 848 (citing Comm’rs Court 

of Titus Cty. v. Agan, 940 S.W.2d 77, 81 (Tex. 1997)). We will render the judgment 

that the trial court should have rendered. Myrad Props., Inc. v. LaSalle Bank Nat. 

Ass’n, 300 S.W.3d 746, 753 (Tex. 2009); Agan, 940 S.W.2d at 81. 

B. Analysis 

The Association filed a motion for summary judgment on both traditional and 

no-evidence grounds. See Tex. R. Civ. P. 166a; 166a(i). That motion challenged each 

of the Bahrs’ affirmative defenses. Further, the Association timely objected to the 

affidavits filed by the Bahrs as summary judgment evidence and requested the trial 

court strike such evidence. The Association objected to the conclusory statements 

contained in the affidavits and argued the affidavits contained statements that were 

hearsay. The Association also objected to the purported business records affidavit of 

Margaret Main. The Bahrs attempted to authenticate documents as business records 

attached to their motion for summary judgment with the affidavit of Main. However, 
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Main was not the records custodian at the time the affidavit was executed and had 

not been the secretary of the Association since 2004. Additionally, the Association 

objected to exhibits 11–39 attached to the Bahrs’ motion for summary judgment, 

which included photographs, a string of emails, and a map allegedly revealing other 

violations of deed restrictions in the subdivision. The Association objected to these 

exhibits on the basis of improper predicate and hearsay. The trial court sustained the 

objections, and the Bahrs failed to remedy or supplement their summary judgment 

evidence. 

“A conclusory statement is one that does not provide the underlying facts to 

support the conclusion.” Dolcefino v. Randolph, 19 S.W.3d 906, 930 (Tex. App.—

Houston [14th Dist.] 2000, pet. denied) (internal quotes omitted). Affidavits 

providing no basis for personal knowledge are legally insufficient. Kerlin v. Arias, 

274 S.W.3d 666, 668 (Tex. 2008). Because affidavits containing conclusory 

allegations are not proper summary judgment proof, the trial court properly struck 

these affidavits upon objection by the Association. See Tex. R. Civ. P. 166a(f); 

Dolcefino, 19 S.W.3d at 930. Affidavits in support of or in opposition to summary 

judgment must present facts as would be admissible in evidence. See United Blood 

Servs. v. Longoria, 938 S.W.2d 29, 30 (Tex. 1997) (discussing expert affidavits).
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The only evidence remaining in support of the Bahrs’ motion for summary 

judgment was the Association’s recorded dedicatory instruments, a letter from the 

secretary of state indicating the corporation was dissolved, and the 1999 amended 

deed restrictions. The dedicatory instruments, together with the 1999 amendments, 

support the claims of the Association by establishing the existence of the amended 

restrictions, and we have already explained why the forfeiture of the Association’s 

corporate status would not support the Bahrs’ arguments. 

The trial court sustained the Association’s objections to the Bahrs’ affidavits 

and other summary judgment evidence. On appeal, the Bahrs complain the trial court 

granting the Association’s motion for summary judgment was “manifest 

constitutional error and manifest error on the entire case.” Specifically, the Bahrs 

argue striking their affidavits and summary judgment evidence was error; however, 

there are no arguments made by the Bahrs or any authorities cited to support their 

assertion that their affidavits or other summary judgment evidence was proper, other 

than to make the blanket assertion the affidavits were “based upon personal 

knowledge.” 

“In reviewing whether a summary judgment was properly granted, we may 

not consider struck portions of the record because that evidence is not a part of the 

summary judgment record.” McCollum v. Bank of N.Y. Mellon Trust Co., 481 
15 

S.W.3d 352, 362 (Tex. App.—El Paso 2015, no pet.) (citing Trudy’s Tex. Star, Inc. 

v. City of Austin, 307 S.W.3d 894, 898 n.2 (Tex. App.—Austin 2010, no. pet.)). 

Because the Bahrs failed to show on appeal that the trial court erred in striking their 

affidavits, we cannot consider that evidence in our review of the trial court’s 

summary judgment. See id. (holding that the trial court was required to grant noevidence motion for summary judgment because nonmovant’s evidence had been 

stricken). “When an appellee objects to evidence on several independent grounds 

and, on appeal, the appellant complains of the exclusion of the evidence on only one 

of those grounds, the appellant waives any error by failing to challenge all possible 

grounds for the trial court's ruling that sustained the objection.” Gulley v. Davis, 321 

S.W.3d 213, 218 (Tex. App.—Houston [1st Dist.] 2010, pet. denied) (citing Trahan 

v. Lone Star Title Co. of El Paso, Inc., 247 S.W.3d 269, 284 (Tex. App.—El Paso 

2007, pet. denied)); see also Katy Springs & Mfg., Inc. v. Favalora, 476 S.W.3d 579, 

607 (Tex. App.—Houston [14th Dist.] 2015, pet. denied) (holding appellant waived 

error with regard to trial court’s striking of affidavit because appellant failed to 

challenge on appeal all possible grounds for the trial court’s ruling). 

 The Bahrs have failed on appeal to identify any statements in the affidavits 

that were not stricken. Additionally, they have failed to show in their brief to this 

Court how their summary judgment evidence and affidavits were improperly 
16 

stricken. Because they have failed to articulate how any statements not struck raise 

a genuine issue of material fact as to their affirmative defenses or to raise any issue 

that would negate the Association conclusively establishing the existence of the deed 

restrictions and the Bahrs’ violation of those restrictions, we hold the trial court did 

not err in ruling the Association was entitled to judgment as a matter of law. See

Tex. R. Civ. P. 166a; 166a(i). We overrule issue three. 

V. Conclusion 

 We conclude the Bahrs’ complaints regarding the temporary injunction are 

moot because the court subsequently issued a mandatory and permanent injunction 

in the case. Additionally, we conclude the trial court did not err in granting the 

Association’s Rule 91a motion to dismiss. On appeal, the Bahrs failed to show their 

summary judgment evidence was improperly stricken or otherwise raise a genuine 

issue of material fact either by their motion for summary judgment or in response to 

the Association’s motion for summary judgment. The Association conclusively 

established the enforceability of the 1999 Amended Deed Restrictions impressed 

upon the property and that the Bahrs’ construction of a fence was in violation of 

those restrictions. Therefore, the trial court did not err in granting summary judgment 

for the Association and in denying the Bahrs’ motion for summary judgment. Having 

overruled all issues on appeal, we affirm the trial court’s judgment. 
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AFFIRMED. 

 

 

 ________________________________ 

 CHARLES KREGER 

 Justice 

 

Submitted on November 2, 2017 

Opinion Delivered May 24, 2018 

Before McKeithen, C.J., Kreger, and Johnson, JJ.