TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-22-00321-CV

Vista Grande Homeowners Association, Inc., Appellant

v.

Dennis Brand and Kimberly Harper, Appellees

FROM THE 201ST DISTRICT COURT OF TRAVIS COUNTY

NO. D-1-GN-20-003601, THE HONORABLE MADELEINE CONNOR, JUDGE PRESIDING

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

Vista Grande Homeowners Association, Inc. (the Association) appeals from the 

district court’s order dismissing its breach of contract claim against Dennis Brand and Kimberly

Harper (collectively, the Owners) for lack of subject matter jurisdiction. We will affirm.

BACKGROUND

This dispute involves the construction of a home on Lot 63 in Vista Grande 

Section Two (Section Two), a subdivision in the Hudson Bend community in Travis County. 

Section Two is composed of four lots—Lot 43, Lot 44, Lot 62, and Lot 63. Section Two is in the 

center of and surrounded by another subdivision, Vista Grande Section One (Section One). The 

plat for Section One was filed August 2, 1973, and recorded at Plat Book 64, Page 26 of the 

Travis County Plat Records. The plat for Section Two was filed October 8, 1973, and recorded 

at Plat Book 66, Page 87 of the Travis County Plat Records. Section One and Section Two each 
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have separate declarations imposing restrictive covenants on the lots within each section.

The original Section One declaration authorized the creation of a homeowners’ association

(the Association) and provided for Section One lot owners’ mandatory membership in the 

Association. The original declaration for Section One was signed August 30, 1973, but not 

recorded until March 2000. Thereafter, the Section One declaration was amended by a majority 

of the Section One lot owners in January 2003, but the amended declaration that was recorded

was signed by only the officers of the homeowners’ association rather than by a majority of 

the then owners of the lots in Section One as required to comply with the provisions of the 

original declaration. In February 2012, corrective action was taken, and the majority of the 

Section One lot owners filed a “First Amended and Restated Restrictive Covenants of Vista 

Grande Subdivision” for Section One (the Section One Amended Declaration).

The original declaration for Section Two (the Section Two Declaration) was 

signed and recorded on May 10, 1977, and was not subsequently amended. The Section Two 

Declaration does not provide for any homeowners’ association, nor does it impose on Section 

Two lot owners mandatory membership in any homeowners’ association.

The Owners purchased Lot 63 in Section Two (the Property) in November 2019. 

Desiring to build a home on the Property, the Owners submitted a project approval plan to 

the Association seeking architectural approval from the Association’s Architectural Control 

Committee (ACC). The ACC denied the application citing concerns that the proposed residence 

could obstruct an adjoining lot owner’s view of the lake. After a failed attempt to secure the 

ACC’s approval by citing certain provisions of the Section One Amended Declaration, the 

Owners’ legal counsel sent the Association a letter stating:
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After further review of the applicable plats and restrictive covenants for the

Property, we have discovered that neither you, the Architectural Control 

Committee (the “ACC”), nor the Vista Grande Homeowners Association, Inc. 

(the “HOA”) have any authority over the Property or over our clients. 

Specifically, the First Amended and Restated Restrictive Covenants of Vista 

Grande Subdivision, filed as Instrument#2012044311 in the Travis County 

Clerk’s Real Property Records (the “Declaration”) encumbers only the original 

Vista Grande subdivision located at Plat Book 64, Page 26 of the Plat Records of 

Travis County, Texas. Our clients’ Property is located solely within Vista Grande 

Section Two, located at Plat Book 66, Page 87 of the Plat Records of Travis 

County, Texas. Nowhere in the Declaration is Plat Book 66, Page 87 referenced, 

incorporated or otherwise dedicated.

Having expressed their view that the Property was not subject to the Section One building 

restrictions and that they did not need approval from the Section One ACC, the Owners 

proceeded to begin construction of a house on the Property in the spring of 2020. On July 9, 

2020, the Association sent the Owners copies of recorded instruments executed by the owners of 

Lot 43, Lot 44, and land constituting .0462 acres out of Lot 62.

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 These documents, which were 

each titled “Acknowledgement,” were executed and recorded in early July 2020. Each of the 

Acknowledgments recites:

I understand [my lot] to be included in the real property that is described in and 

subject to the Amended and Restated Covenants of Vista Grande Homeowners 

Association, filed as Document 200411662 and 2012044311 in the real property

records of Travis County, Texas (the “Amended and Restated Covenants”) and 

part of the “Association” because:

(a) [my lot] has always been subject to assessment by the Association;

(b) architectural review is conducted by the Association;

(c) [my lot] is afforded notice and voting rights with regard to Association 

matters; and

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 This portion of Lot 62, which constitutes approximately 7% of the total square footage 

of Lot 62, is adjacent to Lot 44 and was conveyed to the owner of Lot 44 by the then-owner of 

Lot 62.
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(d) the “Section Two” property was included in the vote on the Amended 

Declaration (as evidenced by the Lot 44 acknowledgement document included 

in Doc. No. 2012044311).

[My lot] is also subject to the Section Two covenants found at Volume 5774, 

Pages 2216-2219 in the real property records of Travis County, Texas (the 

“Section Two Covenants”). The Section Two Covenants state that “at any time 

the then record owners of a majority of the lots shall have the power through a 

duly recorded written instrument to change the membership of the [ACC]” and 

further provides the covenant can be changed by “an instrument signed by the 

majority of the then owners of the lots has been recorded, agreeing to change the 

covenants in whole or in part.” Whether or not the Section Two Covenants were 

supplemented/amended by the Amended and Restated Covenants, I hereby 

consent to, ratify, and approve, the adoption of the Amended and Restated 

Covenants as a supplement to the Section Two Covenants, to include any change 

to the ACC to have the ACC for the Vista Grande Homeowners Association serve 

as the ACC under the Section Two Covenants. The covenants of Section Two 

that contain limitations and restrictions on development and construction that are 

more stringent than those in the Amended and Restated Covenants shall continue 

to apply to all Section Two property and property subject to the Section Two 

Covenants, including the garage restriction in Section B-1.

The Association asserted that these Acknowledgements demonstrated that the Property, even 

though located in Section Two, was subject to the Section One Amended Declaration because 

lots in Section Two had paid assessments levied by the Association and had participated in 

votes regarding Association matters. The Association also claimed that the Acknowledgements

constituted an agreement by the majority of the Section Two lot owners to (1) amend the 

Section Two Declaration by supplementing it with the Section One Amended Declaration and

(2) provide that the Section One ACC would serve as the architectural control committee for 

Section Two.

On July 14, 2020, the Association filed suit against the Owners asserting a cause 

of action for breach of contract alleging that the Owners breached restrictive covenants 

burdening the Property by failing to secure architectural approval from the Association for their 

construction on the Property. The Association alleged that the Property was subject to the 
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Section One Amended Declaration and that it was authorized to enforce the restrictions

contained therein. The Association sought the court’s confirmation that the Owners had 

breached the Section One Amended Declaration and injunctive relief requiring the Owners to 

bring their construction into compliance with the Section One Amended Declaration.

The Owners filed a general and verified denial asserting that the Owners were not 

party to any contract with the Association. The Owners also filed a counterclaim for declaratory 

relief that the Association had no authority over them or the Property and could not enforce any 

provision of the Section One Amended Declaration against them.

The Association then filed a motion for partial summary judgment arguing that, as

a matter of law, the Property was subject to the Section One Amended Declaration. In addition, 

the Association argued that a majority of the Section Two lot owners had executed and recorded 

acknowledgement instruments to confirm that the Section Two lots “have always been included

in the Subdivision” and that the Section One Amended Declaration applies to those lots as well 

as to the lots in Section One. The Association sought summary judgment that the Property was 

part of Section One, that the Owners were required to obtain architectural review and approval 

from the Association, and that no such approval had been granted. In response, the Owners 

asserted that the Property was not part of Section One, that the relevant plats and declarations of 

restrictive covenants establish that the Association’s authority extends only to those lots that are 

in Section One, and that the Association had no standing to bring a breach of contract claim 

against the Owners. With respect to the allegation that a majority of the Section Two lot owners 

had filed acknowledgements that purported to bring Section Two within the scope of the 

Association’s authority, the Owners asserted that only fifty percent of the Section Two lot 

owners had filed acknowledgements, not a majority of them, which was not sufficient to make 
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any changes to the declarations governing Section Two. After considering the Association’s 

motion and the evidence submitted by the parties, which included the relevant plats, declarations, 

and other filings in the Travis County property records, the district court denied the 

Association’s motion for summary judgment.

Thereafter, the Association filed a second motion for partial summary judgment in 

which it argued that, even if the Owners were correct that the Property was separately platted and

part of Section Two rather than part of Section One, a majority of the Section Two lot owners 

had “opted into the [Section One] governance scheme” by filing the Acknowledgements, which 

the Association asserted had amended the Section Two Declaration. The Association again 

sought summary judgment that the Property was subject to the architectural review and approval 

requirements of the Section One Amended Declaration. The Owners filed motions for summary

judgment on both the Association’s breach of contract claim and their counterclaims for 

declaratory relief. The Owners re-urged their arguments that the Property was not subject to the 

Association’s authority and that, as a matter of law, the Association had no standing to bring a 

breach of contract claim against them. The Owners requested that the court render judgment in 

their favor on the Association’s claims against them. The Owners also requested that the court 

grant summary judgment in their favor on their counterclaims against the Association seeking

declarations that the Association had no authority over the Property or the Owners and that 

the Association could not enforce the Section One restrictive covenants against them. After 

considering the motions and summary judgment evidence, the court found that the Property was 
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“subject to the Vista Grande, Section Two Architectural Control Committee.”

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 The court denied 

all other relief requested in the summary judgment motions.

The Owners then filed a plea to the jurisdiction arguing that the Association did 

not have standing to enforce Section One restrictive covenants against owners of lots in Section 

Two. The Owners submitted evidence of the separate plats and restrictive covenants for Section

One and Section Two and argued that because the lots in Section Two, including the Property,

were not governed by the Section One Amended Declarations, the Association had no standing 

to bring a breach of contract claim against the Owners, who were not subject to the Association’s 

authority. The Association countered that certain events and documents confirmed that the 

Property was “part of the Association,” and that, in any event, the Section Two lot owners had 

“ceded architectural review authority to the Association” because of the “majority of the then 

owners of the lots” in Section Two having filed the Acknowledgements. After a hearing, the 

district court granted the Owners’ plea to the jurisdiction and dismissed the Association’s claims 

without prejudice. After the district court filed its findings of fact and conclusions of law, the 

Association perfected this appeal.

STANDARD OF REVIEW

The trial court’s subject matter jurisdiction may be challenged through a plea to 

the jurisdiction. See Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex. 

2004); Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). Whether a court has 

subject matter jurisdiction is a question of law we review de novo. Miranda, 133 S.W.3d at 226. 

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 The court also found that there was a fact issue as to the current membership of the

Section Two ACC, which, according to the Section Two Declaration, was originally composed 

of “Don Cavness and Joe McMordie and a third member to be agreed upon by both parties.”
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The plaintiff has the burden of alleging facts that affirmatively demonstrate the trial court’s 

jurisdiction. Id. We begin with the allegations in the plaintiff’s live pleadings, which we 

construe liberally in favor of jurisdiction and, unless challenged with evidence, take as true. See 

id. at 226-27. We consider any evidence introduced by the plaintiff relevant to the jurisdictional 

inquiry. See City of Elsa v. Gonzalez, 325 S.W.3d 622, 625 (Tex. 2010); Blue, 34 S.W.3d at 555

(“[A] court deciding a plea to the jurisdiction is not required to look solely to the pleadings but 

may consider evidence and must do so when necessary to resolve the jurisdictional issues 

raised.”). When, as here, a plea to the jurisdiction challenges the existence of jurisdictional facts 

that do not implicate the merits and those facts are disputed, the court must make the necessary 

fact findings to resolve the jurisdictional issue. See Miranda, 133 S.W.3d at 226 (“Whether a 

district court has subject matter jurisdiction is a question for the court, not the jury, to decide, 

even if the determination requires making factual findings, unless the jurisdictional inquiry 

is inextricably bound to the merits of the case.”). On appeal, any fact findings made to resolve 

the jurisdictional issue may be challenged, as any other fact findings, for legal and factual 

sufficiency. See University of Tex. v. Poindexter, 306 S.W.3d 798, 806-07 (Tex. App.—Austin

2009, no pet.).

A plaintiff has standing to sue when the pleaded facts state a “concrete and 

particularized, actual or imminent, and not hypothetical” injury. Heckman v. Williamson County, 

369 S.W.3d 137, 155 (Tex. 2012) (quoting DaimlerChrysler Corp. v. Inman, 252 S.W.3d 299, 

304-05 (Tex. 2008)). Standing is a “prerequisite to subject-matter jurisdiction, and subjectmatter jurisdiction is essential to a court’s power to decide a case.” Blue, 34 S.W.3d at 553-54. 

The absence of subject-matter jurisdiction may be raised by a plea to the jurisdiction. Id. When 

a defendant asserts that a plaintiff organization does not have standing to assert claims on behalf 
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of its members, an evidentiary inquiry sufficient to determine standing does not involve a 

significant inquiry into the substance of the claims. Id. “[A] determination of associational 

standing is a prerequisite to the plaintiff’s presentation of its substantive claims.” Id. The Texas 

Property Code provides that “a property owners’ association . . . may initiate, defend, or 

intervene . . . in litigation affecting the enforcement of a restrictive covenant . . . .” Tex. Prop. 

Code § 202.004(b). The Association’s standing is not conditioned on whether the claim it 

asserted against the Owners is ultimately valid but “merely requires that the parties to the suit be 

subject to the covenant.” Teal Trading & Dev., L.P. v. Champee Springs Ranches Prop. Owners

Ass’n, 593 S.W.3d 324, 331 (Tex. 2020). Thus, the Association’s standing to bring suit for 

breach of the Section One Amended Declaration depends on whether the Property is subject to 

the Section One Amended Declaration.

DISCUSSION

The district court found that the Property is in Section Two, that Section Two’s 

deed restrictions are separate from those that burden the lots in Section One, and that the 

Property was not encumbered by the Section One Amended Declaration. Thus, the district court 

concluded that the Association did not have standing to assert a claim against the Owners for 

breach of contract for allegedly violating Section One’s architectural review process in 

developing the Property. In its first issue, the Association asserts that the trial court erred in 

dismissing its claims against the Owners for lack of standing. In its brief, the Association argues

that the trial court erred in finding that the Property is not subject to the Section One Amended 

Declaration. Specifically, the Association states that the Acknowledgements, which it claims 

were executed and recorded by a majority of the Section Two lot owners, “provide that the 
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property depicted in the Section Two plat is subject to the architectural review of the Association

and supplement the Section Two Declaration with the language from the [Section One] 

Amended Declaration.” We understand the Association to argue that the Acknowledgements 

operate to amend the Section Two restrictive covenants to bring those lots within the purview of 

the Association and its architectural review process, thereby conferring on the Association 

standing to enforce the Section One restrictive covenants with respect to the lots in Section Two.

We first consider whether the Acknowledgments were, in fact, executed and 

recorded by a majority of the Section Two lot owners as required to effect any changes 

to the restrictive covenants burdening the Section Two lots. The record includes three 

acknowledgements filed by (1) the owner of Lot 43; (2) the owner of Lot 44; and (3) Don 

Braeuer, an individual who purported to be the owner of Lot 62 by virtue of having been 

conveyed .0462 acres out of Lot 62 by that lot’s previous owner. The conveyance of a portion of 

Lot 62 to Braeuer alone, however, did not operate either to create a new lot in the platted Section 

Two or to make Braeuer the owner of Lot 62. Any revisions or amendments to a plat must be 

approved, filed, and recorded. See Tex. Loc. Gov’t Code §§ 232.009 (revising plats); .011 

(amending plats). The record contains no evidence that the Section Two plat was revised or 

amended to address the conveyance of a small portion of Lot 62 to Braeuer. The evidence in the 

record establishes that Lot 62—except for the previously conveyed .0462 acres—was conveyed 

to and is currently owned by the Owners, not Braeuer. Thus, only the owners of two of the four 

lots in Section Two—Lot 43 and Lot 44—agreed to have their lots bound by the Section One 

Amended Declaration and subject to the architectural review process applicable to Section One 

lots. Because this does not constitute the majority of owners of lots required to amend the 

Section Two restrictive covenants, the Acknowledgments did not operate to effectuate the 
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changes the Association relies on to support its power to enforce the Section One Amended 

Declarations against the Property or the Owners.

On appeal, the Association asserts that certain provisions in the Texas Business 

Organizations Code govern how to determine whether the votes of the owners of Lot 42, Lot 43, 

and Braeuer constitute the required majority of owners of lots in Section Two. First, the

Association claims that owners of property in the Section Two plat constitute an “association” as 

that term is defined in the Texas Business Organizations Code. Specifically, the Association 

relies on section 252.001(2), which defines “nonprofit association” as “an unincorporated 

organization . . . consisting of three or more members joined by mutual consent for a common, 

nonprofit purpose.” See Tex. Bus. Orgs. Code § 252.001(a). The code defines a “nonprofit 

purpose” to include serving “civic purposes.” See id. § 2.002(1). Relying on City of Dallas v. 

East Village Association, the Association asserts that “protecting the quality of neighborhood 

living is a civic purpose.” 480 S.W.3d 37, 43 (Tex. App.—Dallas 2015, pet. denied). The 

Association also points to Texas Property Code section 209.002 to support its contention that the 

owners of property on the Section Two plat constitute an “association.” See Tex. Prop. Code 

§ 209.002 (providing that “property owners association” constitutes unincorporated association).

The Association then argues that “[b]ecause the members constitute an association, the actions of 

the majority of the owners on the Section Two Plat are binding on all of the property, including 

the Owners, as long as the actions are not illegal, against some public policy, or fraudulent.” See

Episcopal Church v. Salazar, 547 S.W.3d 353, 421 (Tex. App.—Fort Worth 2018), aff’d in part, 

rev’d in part sub nom Episcopal Diocese of Fort Worth v. Episcopal Church, 602 S.W.3d 417

(Tex. 2020).
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Assuming, without deciding, that the Association’s assertions are correct, it must 

still have been the case that a majority of the owners of lots in Section Two voted to subject the 

lots in Section Two to the Section One Amended Declaration. In support of its position that 

Braeuer’s vote along with those of the owners of Lot 43 and Lot 44 constituted a majority of

votes, the Association relies on another section of the Texas Business Organization Code that it 

claims “applies for voting by the members.” See Tex. Bus. Orgs. Code § 6.157. Section 6.157

addresses the voting procedure for a jointly held ownership interest, which it contends is the case

with Lot 62. The Association argues that, by virtue of section 6.157, it is irrelevant that Lot 62 is 

owned by someone other than Braeuer; that because he owns.0462 acres out of that lot, his vote

counts; and that “[b]ecause there are 4 lots, the 2 votes in favor (50%), plus Mr. Braeuer’s 

proportionate vote for lot 62, is sufficient to meet the simple majority threshold.” This argument 

fails because the Texas Business Organizations Code itself provides that the only code 

provisions that apply to or govern chapter 252 “nonprofit associations” are the provisions of 

chapter 252. Id. § 252.017. The voting procedure the Association relies on, which is found in 

chapter 6 of the code, does not apply to a “nonprofit association.”

Alternatively, the Association argues that it has standing to sue the Owners to 

enforce restrictive covenants because the Section Two lot owners who executed and filed the 

Acknowledgements thereby designated the Association as their representative to initiate 

litigation to enforce restrictive covenants. See Tex. Prop. Code § 202.004(b) (providing 

that representative designated by owner of real property may initiate, defend, or intervene 

in litigation affecting enforcement of restrictive covenant). The Association asserts that, by 

executing the Acknowledgments, the Section Two property owners “designate[d] the 

Association to govern the property subject to the Section Two plat.” As an initial matter, the 
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Association’s brief does not identify what language in the Acknowledgements purportedly 

designates it as a “designated representative” of Section Two lot owners or for what purpose the 

designation was made. And we find no such language in the text of the Acknowledgements 

themselves. Moreover, the Association does not explain, nor can we discern, how the 

Association, even if a designated representative of the Section Two lot owners, could enforce 

restrictive covenants against the Owners that do not apply to the Property. The Association’s 

reliance on the Acknowledgements to demonstrate their standing to bring this suit against the 

Owners is misplaced. We overrule the Association’s first appellate issue.

In its second issue, the Association asserts that the trial court erred when on crossmotions for summary judgment and before ruling on the Owners’ plea to the jurisdiction, it made 

a finding that the Property “is subject to the Vista Grande, Section Two Architectural Control 

Committee.” The Association argues that (1) the Owners’ pleadings did not request this finding 

and, therefore, the relief was not supported by the pleadings; (2) the court had no basis to grant

what the Association characterizes as declaratory relief; and (3) the Owners’ summary judgment 

evidence did not conclusively establish that the Acknowledgements did not amend the Section

Two Declaration and cause the Property to be subject to the Section One Amended Declaration.

Even assuming the trial court’s summary judgment order was erroneous, however, the 

Association has not explained how it constitutes reversible error. See Tex. R. App. P. 44.1 (no 

judgment may be reversed on appeal on ground that trial court made error of law unless appellate 

court concludes that error complained of probably caused rendition of improper judgment).

After considering the Owners’ plea to the jurisdiction, the trial court correctly found that the 

Association lacked standing to bring a claim against the Owners and dismissed the suit for lack 

of subject-matter jurisdiction. The Owners thereafter non-suited their counterclaims against the
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Association. Having ultimately determined that it did not have subject-matter jurisdiction to 

adjudicate the Association’s claims, any error by the trial court in its previous summaryjudgment order was harmless and does not constitute reversible error. We overrule the 

Association’s second appellate issue.

CONCLUSION

Having overruled the Association’s two appellate issues, we affirm the trial 

court’s judgment.

__________________________________________

Thomas J. Baker, Justice

Before Justices Baker, Kelly, and Smith

Affirmed

Filed: November 22, 2023