COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-17-00136-CV

FRANK REED AND KAREN REED APPELLANTS

V.

LAKE COUNTRY PROPERTY 

OWNERS ASSOCIATION, INC.

APPELLEE 

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FROM COUNTY COURT AT LAW NO. 3 OF TARRANT COUNTY

TRIAL COURT NO. 2013-004939-3

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MEMORANDUM OPINION1

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Appellants Frank and Karen Reed appeal from the trial court’s order 

granting summary judgment in favor of appellee Lake Country Property Owners 

Association, Inc. (LCPOA), permanently enjoining the Reeds from parking or 

storing a recreational camper on their property. As is common in summary-

 

1See Tex. R. App. P. 47.4.
2

judgment appeals, the established standard of review dictates our conclusion. 

Accordingly, because the Reeds do not argue that LCPOA failed to conclusively 

establish each essential element of its claim and because the Reeds wholly 

failed to raise an issue of fact on each element of their pleaded affirmative 

defenses through competent summary-judgment evidence, we affirm the trial 

court’s summary judgment. 

I. BACKGROUND

This is not the first time we have considered the fractious relationship 

between the Reeds and their homeowners’ association—LCPOA. Previously, 

LCPOA sought to enforce deed restrictions, which (1) were restrictive covenants 

running with the properties in Lake Country Estates and (2) prohibited property 

owners from parking “trailer[s], house car[s] or other moveable structure[s]” on 

“any lot” and from storing “boats, boat trailers or recreational campers . . . on the 

premises” in plain view of the streets fronting their residences. Reed v. Lake 

Country Prop. Owners Assoc., Inc., No. 02-14-00282-CV, 2016 WL 3655589, at 

*1 (Tex. App.—Fort Worth July 7, 2016, no pet.) (mem. op.) (Reed I); see also 

Tex. Prop. Code Ann. § 202.001(4) (West 2014) (defining restrictive covenant). 

In response to LCPOA’s efforts, the Reeds and other property owners in Lake 

Country Estates filed suit against LCPOA, seeking a declaration that LCPOA 

either was not authorized to enforce or was estopped from enforcing the 

restrictive covenants. See Burkett v. Lake Country Prop. Owners Ass’n, Inc., 

No. 02-13-00090-CV, 2014 WL 1510137, at *1 (Tex. App.—Fort Worth Apr. 17, 
3

2014, no pet.) (mem. op.). The trial court granted summary judgment in favor of 

LCPOA, which we affirmed. Id.

On August 13, 2013, before we issued Burkett, LCPOA filed suit against 

the Reeds to enforce the restrictive covenant, seeking to permanently enjoin 

them from parking an enclosed utility trailer on their property and from storing a 

Sandpiper camper in view of the street fronting their home. Reed I, 2016 WL 

3655589, at *2. In June of 2014 shortly after we issued our Burkett opinion, the 

Reeds stopped parking the Sandpiper camper on their property. LCPOA sought 

summary judgment on their claims, which the trial court granted on August 7, 

2014, and enjoined the Reeds from violating the deed restriction regarding 

parking or storing trailers or campers. Id. On October 7, 2014, the Reeds began 

to park a Cedar Crest recreational camper on their property in view of the street. 

On July 7, 2016, we affirmed the summary judgment and permanent injunction 

regarding the trailer but we reversed regarding the Sandpiper camper because 

the Reeds had raised a fact issue on their pleaded affirmative defense of 

limitations in response to LCPOA’s summary-judgment motion.

2

 Id. at *8. 

Specifically, we held that limitations as to the Sandpiper camper began to run no 

later than January 5, 2005; thus, the four-year limitations period to enforce the 

restrictive covenant expired January 5, 2009, rendering LCPOA’s August 13, 

2013 petition arguably time-barred absent tolling. Id. at *5, *8. 

 

2On remand, the trial court rendered a partial summary judgment in 

LCPOA’s favor regarding the trailer based on this court’s mandate. 
4

On December 12, 2016, after we issued mandate in Reed I and remanded 

LCPOA’s petition to the trial court, LCPOA amended its petition to allege that the 

Reeds violated the restrictive covenant by storing a recreational camper in view 

of the street “since October 2014.” LCPOA then filed a second motion for 

summary judgment, arguing that it conclusively established its claim for 

enforcement based on the Reeds’ failure to comply with the restrictive covenants. 

In support, LCPOA relied on (1) the Reeds’ warranty deed under which they 

acquired the property; (2) the Lake Country restrictive covenants that were filed 

in Tarrant County and were incorporated into the warranty deed; (3) Frank’s 

deposition admissions that he and Karen violated the restrictive covenants by 

parking a recreational camper on their property; and (4) the affidavit of an 

LCPOA board member who stated that the Reeds stored their Cedar Crest 

camper in view of the street beginning on October 7, 2014, and attached an 

October 7, 2014 photograph of the Reeds’ Cedar Crest camper parked on the 

Reeds’ property in view of the street as well as several date-stamped 

photographs of the Reeds’ property between June 9 and October 7, 2014, 

showing no parked camper. In their summary-judgment motion, LCPOA also 

addressed the Reeds’ previously asserted limitations defense, which resulted in 

this court reversing the summary judgment regarding the Sandpiper camper in 

Reed I, and argued that the absence of the Sandpiper camper between June 

2014 and October 2014 and the Reeds’ parking of the new Cedar Crest camper 
5

in view of the street beginning in October 2014 resulted in limitations starting 

anew in October 2014. 

The Reeds did not respond to LCPOA’s second motion for summary 

judgment and did not appear at the summary-judgment hearing. On January 13, 

2017, the trial court granted LCPOA’s second motion for summary judgment and 

permanently enjoined the Reeds from parking “a trailer, house car or other 

moveable structure” and from storing “a boat, boat trailer or recreational camper” 

within view of the street fronting the Reeds’ house. The trial court also awarded 

LCPOA its attorney’s fees. The Reeds filed a motion for new trial, arguing that 

LCPOA failed to conclusively prove that its enforcement of the restrictive 

covenants was not barred by laches. The motion was overruled by operation of 

law. See Tex. R. Civ. P. 329b(c). 

The Reeds again appeal and argue that the trial court’s summary judgment 

was in error because (1) LCPOA did not address laches in their second motion, 

(2) the Cedar Crest camper did not restart the limitations period because the 

Reeds had been engaged in litigation over the storage of a camper, and (3) a 

material fact issue existed as to laches and whether LCPOA’s delay was 

reasonable after Frank began building improvements in an attempt to comply 

with the restrictive covenants. They also argue that the award of attorney’s fees

was erroneous because LCPOA was not entitled to such an award based on its 

delay in seeking to enforce the restrictive covenants and because there was a 

fact issue regarding reasonableness. 
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II. PROPRIETY OF SUMMARY JUDGMENT

A. STANDARD OF REVIEW

Although a permanent injunction normally is reviewed for an abuse of 

discretion, we apply the summary-judgment standard of review because the 

injunction was issued as the result of a summary-judgment motion. See Jim 

Rutherford Invs., Inc. v. Terramar Beach Cmty. Ass’n, 25 S.W.3d 845, 848 (Tex. 

App.—Houston [14th Dist.] 2000, pet. denied). In our de novo review of the 

summary judgment, we consider the evidence in the light most favorable to the 

Reeds, indulge every reasonable inference in their favor, and resolve any doubts 

in their favor. See Samson Expl., LLC v. T.S. Reed Props., Inc., 521 S.W.3d 

766, 774 (Tex. 2017); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 

211, 215–16 (Tex. 2003). LCPOA was entitled to summary judgment on its

cause of action if it conclusively established all essential elements of its claim as 

a matter of law. See Tex. R. Civ. P. 166a(a), (c); City of Hous. v. Clear Creek 

Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979); Nichols v. Smith, 507 S.W.2d 

518, 520 (Tex. 1974). If LCPOA did so, it will not be prevented from obtaining 

summary judgment merely because the Reeds pleaded an affirmative defense. 

See Kirby Expl. Co. v. Mitchell Energy Corp., 701 S.W.2d 922, 926 (Tex. App.—

Houston [1st Dist.] 1985, writ ref’d n.r.e.); Clark v. Dedina, 658 S.W.2d 293, 296 

(Tex. App.—Houston [1st Dist.] 1983, writ dism’d). An affirmative defense 

prevents the granting of summary judgment in favor of LCPOA only if the Reeds

raised an issue of fact on each element of their defense through competent 
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summary-judgment evidence. See Brownlee v. Brownlee, 665 S.W.2d 111, 112 

(Tex. 1984); ‘Moore’ Burger, Inc. v. Phillips Petroleum Co., 492 S.W.2d 934, 

936–37 (Tex. 1972); Songer v. Archer, 23 S.W.3d 139, 142 (Tex. App.—

Texarkana 2000, no pet.). 

B. AFFIRMATIVE DEFENSES

In their first three issues, the Reeds argue that laches and limitations 

barred LCPOA’s effort to enforce the restrictive covenants, rendering the 

summary judgment in error. Both laches and limitations are affirmative defenses, 

which the Reeds pleaded in their answer to LCPOA’s petition and argued in their 

response to LCPOA’s first motion for summary judgment directed to the trailer 

and the Sandpiper camper. See Tex. R. Civ. P. 94; Reed I, 2016 WL 3655589, 

at *2. But the Reeds did not respond to LCPOA’s second motion for summary 

judgment based on the amended petition and did not proffer competent 

summary-judgment evidence raising a genuine issue of material fact on each 

element of their affirmative defenses; thus, these affirmative defenses cannot, 

standing alone as bare assertions, defeat LCPOA’s right to summary judgment. 

See Lujan v. Navistar Fin. Corp., 433 S.W.3d 699, 704 (Tex. App.—Houston [1st 

Dist.] 2014, no pet.).

In conclusively establishing the elements of its claim for the purposes of 

summary judgment, LCPOA was not required to negate or even address the 

Reeds’ affirmative defenses. See, e.g., Exxon Mobil Corp. v. Rincones, 

520 S.W.3d 572, 593 (Tex. 2017); Brownlee, 665 S.W.2d at 112. All LCPOA 
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was required to do was conclusively establish each element of its claim for 

enforcement of the restrictive covenants, which the Reeds do not argue LCPOA 

failed to do. Indeed, the Reeds completely failed to argue to the trial court that 

LCPOA did not conclusively establish its claim and do not assert on appeal that 

LCPOA’s summary-judgment grounds or proof were legally insufficient to 

establish its claims for affirmative relief. See Clear Creek Basin, 589 S.W.2d at 

678. The Reeds instead solely focus on LCPOA’s failure to negate the Reeds’ 

affirmative defenses, which was not LCPOA’s burden. See Brownlee, 

665 S.W.2d at 112; Marx v. FDP, LP, 474 S.W.3d 368, 377–78 (Tex. App.—San 

Antonio 2015, pet. denied). The Reeds’ attempt to raise a genuine issue of 

material fact on each element of their affirmative defenses for the first time on 

appeal is too little, too late. See Tex. R. Civ. P. 166a(c) (“Issues not expressly 

presented to the trial court by written motion, answer[3] or other response shall 

not be considered on appeal as grounds for reversal.”). See generally Judge 

David Hittner & Lynne Liberato, Summary Judgments in Texas: State and 

Federal Practice, 52 Hous. L. Rev. 773, 876 (2015) (“Absent a written response 

to a motion for summary judgment, prior pleadings raising laches and the statute 

of limitations are insufficient to preserve those issues for appeal.”). 

 

3

“Answer” as used in the summary-judgment rule means an answer to the 

motion for summary judgment, not an answer to the petition. See Clear Creek 

Basin, 589 S.W.2d at 677.
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Because the Reeds failed to raise genuine issues of material fact on their 

affirmative defenses, they are no bar to entry of judgment as a matter of law in 

favor of LCPOA based on its motion and proof conclusively establishing their 

claim for enforcement, which the Reeds do not dispute on appeal. Accordingly, 

we overrule issues one, two, and three. 

III. ATTORNEY’S FEES

In their fourth and fifth issues, the Reeds attack the award of attorney’s 

fees. Issue four again relies on laches to avoid the award; but the Reeds failed 

to raise genuine issues of material fact in the trial court regarding the affirmative 

defense as applied to LCPOA’s second motion for summary judgment. We 

overrule issue four for the same reasons we overruled issues one, two, and 

three. 

In their fifth issue, the Reeds contend that “an issue of genuine material 

fact was raised as to the reasonableness of the fees claimed.” In support of this 

contention, they rely on the fact that the amount awarded in Burnett was less 

than that awarded here and point to the arguments they made in response to 

LCPOA’s first motion for summary judgment, which was the subject of Reed I. 

Although the Reeds cannot rely on evidence they submitted in response to 

LCPOA’s first motion for summary judgment to raise a genuine issue of material 

fact, they can challenge the sufficiency of the evidence to establish 

reasonableness for the first time on appeal even in the absence of a summary-
10

judgment response. See Auz v. Cisneros, 477 S.W.3d 355, 359 (Tex. App.—

Houston [14th Dist.] 2015, no pet.). 

An award of attorney’s fees is mandatory for a prevailing party in an action 

to enforce deed restrictions. See Tex. Prop. Code Ann. § 5.006(a) (West 2014). 

The amount of the award, however, is a question of fact for the fact-finder and is 

based on statutory factors. See id. § 5.006(b); Jim Rutherford, 25 S.W.3d at 853. 

We review that determination for an abuse of discretion. See Fonmeadow Prop. 

Owners’ Ass’n, Inc. v. Franklin, 817 S.W.2d 104, 105–06 (Tex. App.—Houston 

[1st Dist.] 1991, no writ). In support of their request for attorney’s fees in their 

second motion for summary judgment, LCPOA submitted a detailed affidavit that 

requested $40,625.50 in attorney’s fees and addressed each of the statutory 

factors a trial court must use to determine the amount of the mandatory award. 

This evidence supported the trial court’s award to LCPOA of $40,625.50 in 

attorney’s fees; therefore, it was not an abuse of discretion. See, e.g., Tien Tao 

Ass’n, Inc. v. Kingsbridge Park Cmty. Ass’n, Inc., 953 S.W.2d 525, 531 (Tex. 

App.—Houston [1st Dist.] 1997, no pet.); Fonmeadow Prop., 817 S.W.2d at 105–

06. We overrule issue five.

IV. CONCLUSION

We recognize that summary judgment was not proper merely based on the 

Reeds’ failure to respond to LCPOA’s traditional motion for summary judgment. 

See Rhône-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222–23 (Tex. 1999). But the

Reeds’ affirmative defenses, which are the only grounds they raise on appeal in 
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attacking the summary judgment, cannot prevent summary judgment in the 

absence of a response and summary-judgment proof raising genuine issues of 

material fact on those pleaded defenses. Accordingly, their four appellate issues 

relying on their affirmative defenses cannot assail the trial court’s summary 

judgment. Finally, the Reeds have failed to show that the evidence was 

insufficient to support the award of attorney’s fees in the amount requested by 

LCPOA and supported by competent summary-judgment evidence. We affirm 

the trial court’s judgment. See Tex. R. App. P. 43.2(a).

/s/ Lee Gabriel

LEE GABRIEL

JUSTICE

PANEL: SUDDERTH, C.J.; GABRIEL and PITTMAN, JJ.

DELIVERED: December 28, 2017