                                                                                       ACCEPTED
                                                                                   03-14-00714-CV
                                                                                           5333993
                                                                        THIRD COURT OF APPEALS
                                                                                   AUSTIN, TEXAS
                                                                              5/19/2015 9:43:10 AM
                                                                                 JEFFREY D. KYLE
                                                                                            CLERK

               NO. 03-14-00714-CV
                                                                  FILED IN
                                                           3rd COURT OF APPEALS
           COURT OF APPEALS                                    AUSTIN, TEXAS
    THIRD JUDICIAL DISTRICT OF TEXAS                       5/19/2015 9:43:10 AM
                                                             JEFFREY D. KYLE
             AUSTIN, TEXAS                                         Clerk


                        KEVINTARR
                         Appellant,

                               v.

LANTANA SOUTHWEST HOlvlEOWNERS' ASSOCIATION, INC.,
                   Appellee,


             REPLY BRIEF OF APPELLEE


         On Appeal from the 98th Judicial District Court
                      of Travis County
             Trial Court No. D-1-GN-12-002467
               Judge Rhonda Hurley, Presiding




                             GREGORY B. GODKIN
                             Texas State Bar No. 24002146
                             ROBERTS MARKEL WEINBERG BUTLER
                             HAILEY PC
                             111 Congress, Suite 1620
                             Austin, TX 78701
                             ggodkin@rmwbhlaw .com
                             Telephone: (512) 279-7344
                             Fax: (713) 840-9404

                             Attorneys for Appellee




                                1
          STATEMENT REGARDING ORAL ARGUMENT

      Because this case was to be decided on Motions for Summary

Judgment, and the evidence submitted in support thereof and .

Responses    thereto,. Lantana      believes   that   the   record   clearly

demonstrates that the Appellant failed to meet his evidentiary burden,

and that the Appellee Lantana met its burden, in obtaining a Final

Judgment; thus, oral argument is not necessary or required in this

appeal.


                       RECORD REFERENCES

In this brief, the following record citation forms will be used:

   • Clerk's Record will beeited as "CR[page]."

   • Supplemental Clerk's Record will be cited as "SCR[page]."

   • Appellant Brief will be cited as "TB [page]."

   • The Appendix will be cited as "App-[tab] at [page]."

      •     App-A (Final Judgment)

     •      App-B (Texas Property Code §5.006)




                                      2
                                   TABLE OF CONTENTS

 Statement Regarding Oral Argument ............................................. 2

· Record References ................... ...................... ... ........ .. ... ............... 2

 Table of Contents ... ............ ........................................................ 3-4

 Index of Authorities ............................... ... ................................ 5-7

 State.ment of Facts .......................................... .. ........................ 8-16

 Summary of Arguments .......................................................... 16-18

 I. Argument

       A. The Trial Court Did Not Err in Granting Favor of Lantana on Its
          Claim that Tarr was in Violation of the Declaration Use
          Restriction ....·................ ....................... ... ... ....... .......... . 19-32

       B. Tarr's Claim that Lantana failed to give him Proper Notice of the
         Alleged Notice of the Violation of the Declaration was not Plead
          and is, therefore, Waived ................................................. 32-34

 II.      The Trial Court did not Err in Granting Summary Judgment with
          Respect to the Mfirmative Defenses that Statutory Law Prohibits
          Enforcement of the Deed Restrictions ............................... 34-40

 III.     A. The Trial Court Did Not Erroneously Grant Summary
          Judgment on Tarr's Counterclaims of the Federal Fair Housing
          Act and The.Texas Fair Housing Act ............................... 41-46

          B. There is no fact issue with respect to whether the residents are
          "regarded as disabled" under the third definition of the Fair
          Housing Act ................................................................... 4 7-48

 IV.      The Trial Court Did Not Err in Awarding Attorneys Fees (which
          were agreed to by the parties) to Lantana ........................ .49-52

                                                    3
Conclusio.n and Prayer ........................................................... 52 .. 53
Certificate of Compliance ........................................................... 54
Certificate of Service ... .......... .. ....................... ..... ... ........ ............ 56
Appendix ................................................................................... 57




                                                 4
                                                     INDEX OF AUTHORITES
 Cases

 Abbott v. Equity Group, Inc.; 2 F.3d 613, 619 (5th Cir.l993) ........... 36,43

 AHF Cmty. Dev. LLC v. City of Dallas, 633 F.Supp.2d 287, 298 (N.D. ·
 Tex. 2009) ...................................................................... 29, 36, 43

 Amedisys, Inc. v. Kingwood Home Healthcare, LLC. 437 S.W.3d 507,
 511 (Tex.2014) ............. .. ....... ..... ... ... ............... , .. ... ... .............. 20

 Anderson v. New Property Owners' Ass'n of Newport, Inc. , 122 S.W.3d
 378, 390 (Tex.App.-Texarkana 2003, pet. denied) .......................... 52

 Briargrove Park Property Owners, Inc. v. Riner, 867 S.W.2d 58, 61
 (Tex.App.-Texarkana 1993, writ denied) ...................................... 51

· Brookshire Katy Drainage Dist. v. Lily Gardens, LLC, 333 S.W.3d 301,
  313 at FN. 3 (Tex.App.-Houston [1st Dist.] 2010, pet. denied) ......... 40

 Burch v. Coca-Cola Co., 119 F.3d 305, 316 (5th Cir.1997) ...... .. ......... 48

 Cadillac Bar West End Real Estate v. Landry's Restaurant, Inc., 399
 S.W.3d 703, 707 (Tex. App.-Dallas 2013, pet. denied) . .................... 33

 Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d
 265 (1986).    I   I   I   I   I   If It If It•               .29, 39,43
                                                 If It If tt It If I   It ft ff If I   It f   t t I f f If It f   tIt I   If I   tf   I   It I   If I   I   I   I   I   I   I




 City of Houston v. Muse, 788 S.W.2d 419, 424 (Tex.App.-Houston [1st
 Dist.] 1990, no writ) ................................................................... 52

Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir.1996)
(en bane) .................. .... ........ ........... .. ............................... . .. .. 36-43

Espinoza v. Victoria Bank Trust Co., 572 S.W.2d 816, 827
(Tex.Civ.App.-Corpus Christi 1978, writ ref'd n.r.e.) ....................... 34


                                                                                       5
Forney 921 Lot Dev. Partners I, L.P. v. Paul Taylor Homes, Ltd., 349
S.W.3d 258, 267-68 (Tex.App.·Dallas 2011 , pet. denied) . ....... .. .. .. .. 33

Gillebaard v. Bayview Acres Ass'n., 263 S.W.3d 342, 347 (Tex.App. -
Houston [1st Dist.] 2007, pet. denied) ... .............. ... ..................... 21

Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 905 (Tex.
2000) . .... .... .. . ·· ···· .............. .......... .. ~ ................. .. .................... ... 24

Inwood North Homeowners' Ass'n, Inc. v. Meier, 625 S.W.2d 742, 743-
44 (Tex.Civ.App.-Houston [1st Dist.] 1981, no writ) ....................... 52

Jim Rutherford Investments, Inc. v. Terramar Beach Community Ass 'n,
25 S.W.3d 845, 853 (Tex.App.-Houstori [14th Dist.] 2000, pet.
denied.) ................ ;.. ,.. ........... ............ ............ ............ ................ .............. .. 51

Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994) (en bane)
(per curiam) .......... ...................................... ...... ....... .... ....... .36-43

Lund and Westlake Assisted Living, L.L.C. v. Leible, 1999 WL 546996
*1, *6 (Tex. App. Austin. 1999) ......... .......................................... 29

Macy v. Waste Mgmt., Inc., 294 S.W.3d 638, 650-51 (Tex.App.-Houston
[1st Dist.] 2009, pet. filed) ............. .. ....... .... .... ... ........... ................ 40

Mastin v. Mastin, 70 S.W.3d 148, 154 (Tex.App.-San Antonio 2001, no
pet.) ..................... ....................................................................33

McKey v. Occidental Chem. Corp., 956 F .Supp. 1313, 1318
(S.D.Tex.1997) . ...... ·..................... ..................... ......... .......... 37, 46

Mendoza v. Fidelty & Guar. Ins. Underwriters, Inc., 606 S.W.2d 692,
694 (Tex. 1980) .................. .............................. .......... ... ........ ... 24

MMP, Ltd. v. Jones , 710 S.W.2d 59, 60 (Tex.1986) ... ........................ 20



                                                            6
     Munson v. Milton , 948 S.W.2d 813, 815 (Tex.App.-San Antonio 1997,
     pet. denied). . ................................................................ ......... .. 51

     Nash v. Peters, 303 S.W.3d 359, 362 (Tex. App. El Paso 2009, no pet ... 51

     Pebble Beach Prop. Owners' Ass'n v. Sherer, 2 S.W.3d 283, 291-92
     (Tex.App.-San Antonio 1999, pet. denied) ...................................... . 52

     Shoemake v. Fogel, Ltd., 826 S.W.2d 933, 937 (Tex.l992) .... ......... ... 34

     Taylor v. Principal Financial Group, Inc., 93 F.3d 155, 164 (5th Cir.),
     cert. denied, 519 U.S. 1029; 117 S.Ct. 586, 136 L.Ed.2d 515 (1996).37,45

     Statutes and Regulations

     TEX. PROP.CODE ANN. § 5.006(a) ........................ 14, 18, 49, 51, 52, 56

     Rules

-,   TEX. R. CIV. P. 166a(c) ....................................... 10, 12, 19, 20, 41, 49
'


     TEX. R. CIV. P. 166a(i) .. ............................................... 10, 35, 40, 41

     TEX.. R. EVID. 902(4) ....................................... ............................. 22

     TEX. R. CIV. P . 94 ....................................................................... 34




                                                    7
TO THE HONORABLE COURT OF APPEALS:

      Appellee,        Lantana          Southwest   Homeowners'   Association

("Lantana") files this Reply Brief, pursuant to Texas Rules of Appellate

Procedure 38.2 and 38.6, and would respectfully show unto the Court

the following:

                            STATEMENT OF FACTS

     Appellee Lantana Southwest Homeowners Association, Inc.

("Lantana"), is a not-for-profit homeowner's association for a residential

subdivision known as Lantana Southwest Single Family Properties

located in the city of Austin, Travis County, Texas. (CR6). The Lantana

Southwest subdivision is governed by a Declaration of Covenants,

Conditions, and Restrictions duly recorded in the records of Travis

County, Texas as Document No. 2003181938 (the "Declaration").

(CR10-36). Appellant Kevin Tarr's ("Tarr") property is located within

the Lantana's Southwest subdivision and is subject to the Declaration.

(CR401,   ~   40G; CR404     ~   49).

     Among other restrictions set forth in the Declaration, Article 4.1

requires that the Lots in the subdivision be used solely for single family

use. (CR16,     ~   4.1).   The Declaration defines "single family'' as "any


                                            8
number of persons related by blood, marriage or adoption, and shall

also include foster children and domestic servants." (CR16, ~ 4.1).

Article 4.1 of the Declaration further prohibits a building, outbuilding

or portion of either to be built on a Lot for use as income-producing

property (and uses as an example a lease to a tenant who does not

occupy the entire Lot). (CR16,   ~   4.1).

     Specifically, the use Residential Use Restriction reads as follows:

      4.1 Residential Use. All Lots shall be improved and used
      solely for single family residential use, inclusive of a garage,
      fencing and such other Improvements as are necessary or
      customarily incident to residential use.            No building,
      outbuilding or portion of either may be built on a Lot for use
      as income-producing property (i.e., for lease to tenants who
      do not occupy an entire Lot). A "single family" shall be
      defined as any number of persons related by blood, marriage
      or adoption, and shall also include foster children and
      domestic servants. This Declaration shall not, however,
      exclude from a Lot any person who is authorized to so
      remain by any state or federal law. If this Article 4, Section
      4.1 is held to be in violation of any law, this Article 4, Section
      4.1 shall be interpreted to be as restrictive as possible in
      order to preserve as much of the original intent of this
      Section as is permitted by law. (CR16, ,-r 4.1).

     On August 14, 2012, Lantana sued Tarr for breaching the

Declaration after he converted his single family property into a duplex,

and then began renting his home as an income-producing property to

persons not related by blood, marriage, or adoption. (CR5-49).

                                        9
            In response to the lawsuit brought by Lantana, Tarr filed an

      Answer with a litany of affirmative defenses, including the affirmative

      defense · that the Federal and Texas Fair Housing Acts prohibits
-,

 !
 ,    Lantana from enforcing the Declaration, specifically the Residential

      Use Restriction. (CR51-84). Tarr also filed a Counterclaim -asserting

      that, by filing the suit and by interfering with Tarr's leasing, Lantana

      violated the Federal and Texas Fair Housing Act. (CR81,    ~IV.).


      Lantana's First Motion for Partial Summary Judgment

            On August 26, 2013, over a year after the suit was initially filed,

      Lantana moved for Partial Summary Judgment on both TRCP 166a(c)

      Traditional and TRCP 166a(i) No-Evidence grounds as to Tarr's

      affirmative defenses. (CR168-285).       In its No-Evidence Motion for

      Partial Summary Judgment, Lantana argued that Tarr had the burden

      of establishing a "handicap" under the Federal Fair Housing Act and a

      "disability" under the Texas Fair Housing Act to support his affirmative

      defenses and that, in spite of over a year of litigation and discovery, he

      failed to meet his burden and the No-Evidence Summary Judgment

      should be granted in Lantana's favor as to the Fair Housing Act

 j    affirmative defenses. (CR170-173). In his Response, Tarr submitted an
 l
 ·i




                                          10
     .Mfidavit wherein he stated all tenants are required to have a

     "handicap" as defined by the Federal Fair Housing Act in that they are

     required to have a drug or alcohol addiction for which they are seeking

     "recovery," and that all tenants are required to have a "disability" as

     defined by the Texas Fair Housing Act, in that they are required to

     have a drug or alcohol addiction for which they are seeking recovery.

     (CR294-295).

          The Court (Judge Stephen Yelenosky) reviewed the briefing

     provided by Lantana and Tarr, reviewed Tarr's affidavits, heard

 I
..
     arguments, and ultimately ruled that Tarr had failed to meet his

     required burden in producing evidence of his affirmative defense of the

     Federal and Texas Fair Housing Act because he had not produced the

     required evidence necessary to establish that his 1·enters were afforded

     protections by the Acts. (CR297). The Court, therefore, granted the No-

     Evidence Summary Judgment against Tarr's affirmative defenses of the

     Federal and Texas Fair Housing Act. (CR297).

     Lantana's Second Motion for Partial Summary Judgment

          Lantana filed a second Motion for Partial Summary Judgment on

     January 1, 2014. (CR298-416).       The Motion for Partial Summary


                                        11
'   Judgment included a TRCP 166a(c) Traditional Summary Judgment as

    to Tarr's counterclaims for the Federal and Texas Fair Housing Act.

    (CR298-416).     The other appeal-relevant portion of the Partial

    Summary Judgment sought a TRCP 166a(c) Traditional Summary

    Judgment as to Lantana's breach of Declaration claim against Tarr.

    (CR298-416).    Lantana also filed a Reply Brief to Tarr's Response,

    which was also considered by the Court. (CR420-495; CR496-497).

         The bases for the Traditional Motion for Summary Judgment as to

    Tarr's Federal and Texas Fair Housing Act causes of action were two-

    fold: first, no fact issue then existed as to said claims since the trial

    court had already ruled that the renters were not afforded protections

    under the Acts since they were not handicapped or disabled as defined

    by the Acts. (CR298-301). Secondly, even if the court had not already

'   ruled on the issue, summary judgment was still proper because Tarr

    had (once again) failed to produce the required evidence in his Response

    to the Second Motion for Partial Summary Judgment that the renters

    were qualified individuals falling within the afforded protections of the

    Acts because they are handicapped or disabled, a required element of




                                        12
establishing the Fair Housing Act causes of action (for which he has the

burden). (CR430-432).

     The Court (Judge Eric Shepperd) reviewed the Motion, Tarr's

Response, the Reply, as well as all evidence presented by Tarr in his

attempt to establish the required element of proof that the residents

were handicapped or disabled as defined . by the Acts, and he heard

argument of counsel, and subsequently granted partial summary·

judgment as to Tarr's Counterclaims for the Federal and Texas Fair

Housing Acts. (CR497 -498).

     Lantana further sought a Traditional Summary Judgment as to

its breach of Declaration claim against Tarr in its second Motion for
                                                                     •
Partial Summary Judgment. (CR304-305).         In the motion, Lantana

established all of the required elements to prove that        ~4.1   Use

Restriction of the Declaration was breached by Tarr. (CR304-305;

CR428-430). Because Lantana was able to establish all of the elements

of a breach of the Declaration, the trial court granted Lantana's Second

Motion for Partial Summary Judgment as to the breach of the

Declaration. (CR496).

Lantana's Motion for Final Summary Judgment


                                   13
      On June 12, 2014, Lantana filed a Motion for Final Summary

Judgment whereby it argued that, because Tarr's affirmative defenses

and    counterclaims,    including    the    affirmative   defenses     and

counterclaims of the Federal and Texas Fair Housing Act, were all

subject to prior Motions for Summary Judgment, and because the trial

court had ruled as a matter of law that Tarr was in breach of the

Declaration, it was entitled to a Final Summary Judgment seeking a

permanent injunction consistent with the Declaration. (CR499-605).

Lantana also sought its attorneys' fees pursuant to the Texas Property

Code §5.006. (CR499-605).

      Tarr filed a Response and a Motion for Reconsideration. (CR606-

613). Tarr's Response focused on the attorney's fees, but he did not

attempt to refute Lantana's right to an injunction. (CR606-613). Tarr

failed to set the Motion for Reconsideration for hearing as required by

the rules, as such, the Court did not entertain the motion. (CR617).

      On July 30, 2014, the Court (Judge Gisela D. Triana) granted

Lantana's motion in part only, ordering that Tarr be "commanded to

desist and refrain from breaching the Declaration of Covenants,

Conditions,   Restrictions   for   Lantana    Southwest    single     family


                                     14
      properties." (CR617). The Court did not grant Lantana's request for

      attorney's fees because Judge Triana felt a fact issue existed, thereby .

      precluding summary judgment. (CR617-620).

      The Final Judgment

           On September 5, 2014, the Court (Judge Amy Clark Meachum)

      entered a Final Judgment which incorporated the orders from the

      three-partial summary judgments. (SCR70-72). The Final Judgment

      (which she termed "Agreed") also incorporated an agreement by and

      between counsel for Lantana and Tarr whereby the parties agreed that

      $88,000.00 are reasonable and necessary fees for the prosecution and

      defense of the lawsuit filed by Lantana up to the signing of the Agreed

      Final Judgment, and further agreed that $35. 000.00 are reasonable and
                                                   1




      necessary fees to be paid to Lantana should Tarr file an unsuccessful

      appeal of the cause to the Texas Court of Appeals. (SCR70-72).

           This Final Judgment contained an error regarding a date of the

      first partial summary judgment, which was corrected when, on October

      28, 2014, the trial court (Judge Rhonda Hurley) entered its Final

      Modified Judgment. (CR621-624).

  i
. j
  l
  '


                                         15
     Tarr filed a Motion for New Trial which extended the trial court's

preliminary power, but never set said Motion for New Trial for hearing

so it was never considered by the trial court. (SCR73-85).

     Tarr filed a Notice of Appeal on November 17, 2014.     (CR625~627).


                        SUMMARY OF ARGUMENT

     In his Appellate Brief, Tarr begins the "Argument" section by

stating that "the disjointed and piecemeal manner in which the issues

were presented to five different judges of the Travis County trial bench

confused the issues in the trial court and complicates the presentation

of the issues on appeal." (TB Pg. 16). This position could not be further

from the truth, both factually and legally. Tarr's case, and this appeal,

begins and ends with the fact that after over a year of discovery and

litigation, Tarr failed to meet his      r~quired   evidentiary burden in

proving that the Federal and Texas Fair Housing Acts afforded his

renters protections because he was unable to produce the required

evidence to establish a "handicap" or "disability" in responding to

Lantana's First and Second Motions for Partial Summary Judgment.

Tarr had two different opportunities to meet his required evidentiary

burden in responding to the Motions for Partial Summary Judgment,


                                    16
and he had two other opportunities to argue the required evidence at a

Motion for Reconsideration and his Motion for New Trial, neither of

which he even set for a hearing; thus, they were never considered by the

trial court. At all opportunities, Tarr failed to meet his burden.

      Again, the issue is a simple one: Tarr failed to meet his required

burden of producing evidence to meet the most critical element of his

Federal and Texas Fair Housing Acts affirmative defenses and causes of

action. All of the well-respected Travis County Judges who reviewed

the briefing and evidence presented followed the law and ruled

correctly.

      Because Tarr failed to meet his required evidentiary burden of

proof, all of the rhetoric set forth in both his Responses to the Motions

for Partial Summary Judgments, and now in his Appellate Brief, that

the Fair Housing Acts protect group homes for persons falling within

the purview of the Federal and Texas Fair Housing Act is of absolutely

no relevance as Tarr failed to establish that the renters are qualified

individuals afforded protections under the Acts. This case has never

been about whether the Fair Housing Acts affords protections to

qualified individuals. That is not subject to dispute nor disagreed to by


                                    17
Lantana. The issue is Tarr's failure to meet his required evidentiary

burden in establishing the applicability of the Federal and Texas Fair

Housing Acts, which he failed to do at the trial court level.

     What was left in the case after Tarr failed to meet his required

burden of establishing the applicability of the Fair Housing Act

protections was an admitted breach by Tarr of the Use Restriction

Declaration.

     There were no fact issues left, as Lantana had proven, as a matter

of law, that Tarr was in breach of the Declaration. The injunction was

proper under the Texas Property Code, and the attorneys' fees that Tarr

is complaining of in his appeal were actually agreed to in the Final

Judgment. They were also required (as a matter of law) under §5.006 of

the Texas Property Code.

      As set forth below, all of the trial court judges carefully looked at

the requirements that both Tarr and Lantana had under the law and,

following a review of each parties' respective burdens, the issues

presented, the law, and the evidence, properly ruled in Lantana's favor.




                                     18
                                   I.
                             ARGUMENT
    A. The Trial Court did not Err in Granting Summary
  Judgment in Favor of Lantana on its Claim that Tarr was in
        Violation of the Declaration's Use Restriction

   . In its Second Motion for Partial Summary Judgment, Lantana

sought a TRCP 166a(c) Traditional Summary Judgment as to Tarr's

Counterclaims of his Federal and Texas Fair Housing Act causes of

action, as well as a Traditional Summary Judgment as to Lantana's

breach of Declaration claim against Tarr.   (CR298~416).


     The focus of the "Issue Presented" in this appeal is whether the

trial court properly granted summary judgment as to Lantana's breach

of Declaration cause of action against Tarr, which is separate and apart

from the Motion for Partial Summary Judgment as to Tarr's Fair

Housing Act counterclaims as the Texas Rules of Civil Procedure

specifically allow for a party seeking to recover upon a claim made,

anytime after the adverse party has appeared or answered, to move for

a summary judgment in its favor upon all or any part of its claims. See

TRCP 166a(c).




                                   19
      At the time Lantana filed it Motion for Partial Summary

Judgment as to its breach of Declaration cause of action against Tarr,

all of Tarr's affirmative defenses, including his affirmative defenses of

the Federal and Texas Fair Housing Act, were no longer viable in that

the trial court had previously granted a No-Evidence Motion for Partial

Summary Judgment as to those affirmative defenses. (CR297).

      Because there were no viable, live affirmative defenses as to

Lantana's breach of Declaration cause of action, its only burden was to

show (1) that there was no genuine issue of material fact and (2) that it

was entitled to judgment as a matter of law.          See TRCP 166a(c);

Amedisys, Inc. u. Kingwood Home Healthcare, LLC. 437 S.W.3d 507,

511 (Tex.2014).    To prove it was entitled to summary judgment,

Lantana was required to establish each element of its claim as a matter

of law. MMP, Ltd. u. Jones, 710 S.W.2d 59, 60 (Tex.1986).

      The specific portion of the Declaration the subject of Lantana's

cause of action and Motion for Partial Summary Judgment was

paragraph 4.1 of the Declaration, "Residential Use," which reads as

follows:

      4.1 Residential Use. All Lots shall be improved and used
      solely for single family residential use, inclusive of a garage,

                                    20
      fencing and such other Improvements as are necessary or
      customarily incident to residential use.            No building,
      outbuilding or portion of either may be built on a Lot for use
      as income-producing property (i.e., for lease to tenants who
      do not occupy an entire Lot). A "single family" shall be
      defined as any number of persons related by blood, marriage
      or adoption, and shall also include foster children and
      domestic servants. This Declaration shall not, however,
      exclude from a Lot any person who is authorized to so
      remain by any state or federal law. If this Article 4, Section
      4.1 is held to be in violation of any law, this Article 4, Section
      4.1 shall be interpreted to be as restrictive as possible in
      order to preserve as much of the original intent of this
      Section as is permitted by law. (CR16, ~ 4.1).

     At the time Lantana presented its Motion for Partial Summary

Judgment as to the breach of Declaration, meeting its burden in

establishing all the elements of the cause of action was relatively simple

as the evidence (through admissions by Tarr and additional undisputed

facts) established all of the required elements: the existence of a valid

and enforceable Declaration, and the breach of said valid and

enforceable Declaration.

     To prevail on its Motion for Partial Summary Judgment as to the

breach of Declaration, Lantana had the burden of proof to show that the

restriction was valid and enforceable.       Gillebaard v. Bayview Acres

Ass'n., 263 S.W.3d 342, 347 (Tex.App. -Houston [1st Dist.] 2007, pet.

denied).

                                     21
            Proof of a valid Declaration was met by Lantana. Specifically, a

      certified copy of the Declaration of Covenants, Conditions, and

      Restrictions for Lantana Southwest single family properties was
--,
  I
  ;


      submitted to the Court as evidence in support of Lantana's Motion for

      Partial Summary Judgment prior to the Court's ruling and hearing on

      said motion. (CR433-473). Pursuant to Texas Rules of Evidence 902(4),

      this certified copy was self-authenticating.

           Lantana further proved the Declaration was valid and enforceable

      to Tarr's Property, and that he was aware of the residential Use

      Restriction. Specifically, Tarr testified that the Declaration in question

      was applicable to his property:

           Question: OK. When you purchased the home, were you
                     aware that there                             were
                     Deed Restrictions applicable to that property?

           Answer:     Yes

           Question: OK. And I'm not going to go through all of them,
                     but the one that is particularly important in our
                     case would be the fact that it is a single family
                     use deed restricted community.          Did you
                     understand that at the time you purchased the
                     home.

           Answer:     Yes.



                                          22
               Question: OK. Were you provided documents from the
                         Seller that showed you Declarations, etc., that
                         this was a single family residence deed restricted
                         community?

               Answer:      Yes.

               Question: Okay. What does that mean to you?

               Answer:      That it1s a house to be used for single family.

               (CR414 Pg. 13, ll. 6-22).

               Tarr also wrote a self serving letter to his neighbors in response to

         their concern that one of his renters was a registered sex offender for

         child molestation and, in the letter, he specifically says that his

         property is subject to single family use restrictions. (CR366).            Thus,

         there is no fact issue as Tarr admits that the Use Restriction is valid

         and enforceable.

               Secondly, Tarr's own counterclaim specifically states that he is a

         "member/shareholder of Lantana," and he even tries to argue (albeit

         without merit) that "Lantana Southwest's own deed restrictions protect

         Tarr's sober house group home." (CR404,      ~   49; CR401,   ~   40G). Further,

         the fact that the Declarations are valid and enforceable, and that Tarr's

         property is subject to said Declarations, is not subject to Tarr's appeal
-·   .
     J

         as, in his Appellate Brief, he specifically represents that "[his] property

                                               23
    is located within the Lantana Southwest subdivision and is subject to

    homeowners' association deed restrictions," including the Residential

    Use Restriction the subject of Lantana's breach of Declaration cause of
l   action against him. (TB Pg. 4-5).

         All of these statements constitute judicial admissions and the fact

    that the Declaration is valid and applicable to Tarr's property is

    conclusively established. As such, there is no fact question regarding

    the same. See Horizon!CMS Healthcare Corp. v. Auld, 34 S.W.3d 887,

    905 (Tex. 2000); Mendoza v. Fidelty & Guar. Ins. Underwriters, Inc.,

    606 S.W.2d 692, 694 (Tex. 1980).

         The next required element, that Tarr breached , 4.1 of the

    Declaration, was also easily met as a matter of law because he had

    admitted that he was violating the Use Restriction by renting rooms to

    groups of unrelated individuals. Specifically, in Tarr's own pleadings,

    he states that "(a]s Tarr's August 9. 2012 letter and advertisement

    reflect, Tarr is operating a sober house, group home ... " (CR385). This is

    a judicial admission establishing the required element. See Horizon at

    905; See Mendoza at 694.




                                         24
          Tarr also testified at the time of his deposition that he currently

     had ten renters, but at one point had a total of sixteen, and that he was

     ~arning   income of $6,000.00 to $8,000.00 per month.
-.

     8    Q.     Is the Oteka residence or any entity related to

     9           the Oteka residence set up or associated in any way with

     10          a not for profit?

     11   A.     No.

     12   Q.     How much money on average do you gross each

     13          month from the recovery home?

     14   A.      It fluctuates.

     15   Q.     On average.

     16   A.     I don't know exactly.

     17   Q.     How much do you charge residents?

     18   A.     Currently between 6- and 800 per month.

     19    Q.    And you currently have 10?

     20    A.    Approximately, yes.

     21    Q.    So, that's 6,000 to $8,000 a month?

     22    A.    That's correct.

     23    Q.    At one point you had 16?


                                         25
24       A.     Yes.

(CR415 Pg. 73, ll. 8-24).

     Clearly, there is no genuine issue of material fact that his Lot is

being utilized for multi-family residential use, which is in direct

violation of the Residential Use language: "[a]ll Lots shall be approved

and used solely for single family residential use," and "single family

shall be defined as any number of persons related by blood, marriage or

adoption, and shall also include foster children and domestic servants."

(CR16,   ~    4.1).

     Further, his single family property home has been modified for

use as income-producing duplex. Specifically, Tarr discusses his "brand

new," (one month old) duplex in an advertisement:

      "Why live in a smaller or older house for the same price as a
      brand new, (one month old) custom built, 5,400 sq. ft.
      mansion with a 2,800 sq. ft. completely private duplex?
      Rental house is 100% private duplex with a separate private
      front door and private garage door entrances and is sealed
      off from the downstairs house." (CR374). "This is one of the
      most affordable, upscale townhomes on Craigslist! It is a
      custom built, brand new, 1.5 year old, 2 story house that is
      valued at $525,000.00 that is divided between an upstairs
      and downstairs with two complete houses inside a 5,400 sq.
      ft. mansion. Currently, the upstairs townhouse is for rent."
      (CR372).



                                   26
           Clearly, Tarr's home is in violation of the ~ 4.1Residential Use

     restriction language as well: "no building, out building or portion of

     either may me built on a Lot for use as income-producing property (i.e.,

     for lease to tenants who do not occupy an entire Lot." (CR16,   ~   4.1).

          The trial court looked at all of the evidence presented, including

     Plaintiffs own pleadings and admissions, whereby he admits that he is

     violating the Declaration's Use Restriction, and ruled in Lantana's favor

     for the breach of Declarations cause of action against Tarr. (CR496).

          In his Appellant Brief, Tarr spends a considerable amount of time

-~
     attempting to convince this Court that what is a clear breach of the

     Declaration is not, in fact, a breach. Specifically, his first focus is his

     attempt to assert that Lantana failed to meet its summary judgment

     burden in establishing a breach of the Declaration by focusing on his

     defunct affirmative defenses of the Federal and Texas Fair Housing Act.

     (TB 21-24). Specifically, he argues that the Fair Housing Acts protect

     group homes. (TB21). This is not in dispute. Lantana has not in the

     past, nor is it now, asserting that the Federal and Texas Fair Housing

     Acts when applicable to a particular property, i.e., after those

     claiming protections under the Acts meet their burden of proof in


                                         27
    establishing a handicap or disability, afford certain protections against

    single family use restrictions.

          What Tarr is wholly and completely missing in his position as it
~
i
I   relates to the Motion for Partial Summary Judgment granted in

    Lantana's favor against Tarr for the breach of Declaration cause of

    action is that Tarr had already lost a No-Evidence Motion for Partial

    Summary Judgment as to his Federal and Texas Fair Housing Act

    affirmative defenses and they were no longer a viable defense to

    Lantana's   breach of Declaration Motion for         Partial Summary

    Judgment. (CR412).

         Tarr then attempts to argue in his Appellant Brief that it was

    Lantana's burden to prove a negative: that Tarr's use of the Property

    does not qualify as a group home for handicapped persons because 'If 4.1

    of the Declaration specifically states "this Declaration shall not,

    however, exclude from a Lot any person who is authorized to still

    remain by any state or federal law." (TB23-24). This argument has no

    merit. This portion of the Declaration simply says that if a person is

    afforded protections under the law, like under the Fair Housing Act,

    those protections trump the Use Restriction. But to be afforded these


                                       28
protections, a person claiming federal protections must prove they fall

within the purview of the protections, which Tarr failed to do. It is the

burden of the person claiming protections to prove they are qualified

individuals falling within the purview of those protections. See AHF

Cmty. Dev. LLC v. City of Dallas, 633 F.Supp.2d 287, 298 (N.D. Tex.

2009); Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91

L.Ed.2d 265 (1986).

      Once a violation of deed restrictions are shown, the burden shits

to the person claiming Fair Housing Act protection to provide a defense

on his or her failure to comply with the deed restriction. See Lund and

Westlake Assisted Living, L.L.C. v. Leible, 1999 WL 546996 *1, *6 (Tex.

App. Austin. 1999) (not designated for publication). Tarr had already

argued and lost his claim that the renters fell within the purview of

protections afforded by the Fair Housing Acts, so this defense was no

longer viable and all Lantana needed to prove was a breach of the

Declaration, which it clearly did giving rise to summary judgment.

     Further, it is without dispute that Tarr modified his single family

residence and converted it to a duplex for the purposes of renting it out

to a large number of unrelated individuals, thereby breaching another


                                   29
       portion of the Declaration which states "no building, out building or

       portion of either may be built on a Lot for use as income-producing

   '   property (i.e., for lease to tenants who do not occupy an entire Lot.")
--1
       (CR16, , 4.1) . In his appellate brief, Tarr attempts to avoid the clear

       breach of this portion of the Declaration by arguing that the use

       restriction is an attempt to prohibit the construction of an improvement

       for the purposes of producing income and that there is no proof his

       property is a duplex. (TB24-27, TB28-29).

            It is frankly unclear as to why Tarr would attempt this argument

       as Tarr's own advertisements from Craigslist, that were presented as

       evidence by Lantana in its Motion for Partial Summary Judgment

       specifically, say that his single family residence has been built into a

       "rental house" that is a "100% private duplex with a separate

       private front door and private garage door entrance and is

       sealed off from the downstairs house." (CR37 4).

            There are numerous advertisements by · Tarr on Craigslist

       whereby he discusses his "brand new," (one month old) duplex:

             "Why live in a smaller or older house for the same price as a
             brand new, (one month old) custom built, 5,400 sq. ft.
             mansion with a 2,800 sq. ft. completely private duplex?
             Rental house is 100% private duplex with a separate private

                                          30
      front door and private garage door entrances and is sealed
      off from the downstairs house." (CR37 4). "This is one of the
      most affordable, upscale townhomes on Craigslist! It is a
      custom built, brand new, 1.5 year old, 2 story house that is
      valued at $525,000.00 that is divided between an upstairs
      and downstairs with two complete houses inside a 5,400 sq.
      ft. mansion. Currently, the upstairs townhouse is for rent."
      (CR372).

      Clearly, in addition to violating the single family restriction on the

unrelated renters renting rooms in the home) Tarr also violated the

Declaration by building a duplex for use as an income-producing

property (i.e., for lease to tenants who did not occupy an entire Lot) (CR

16 ~ 4.1).

      Tarr also testified that he generates income of $6,000.00 to

$8,000.00 per month from the rentals. (CR304). In his Appellate Brief,

Tarr focuses on "profits" (or lack thereof) as opposed to "income" in

arguing that there is no proof of a breach and states that Lantana has

misrepresented Tarr's testimony in its motion when it stated "that this

is a for-profit endeavor in which he is making at least $6,000.00 to

$8,000.00 per month." (TB24-25). Tarr then admits in his Appellate

Brief (thereby once again proving Lantana's point) that Tarr has "gross

collections between $6,000.00 and $8,000.00 each month." (TB25).

W ordsmithing as between "gross collections" and "profit" does not

                                     31
     matter legally as Tarr admitted in his deposition, and now admits in his

     own Appellate Brief, that he was receiving income of at least $6,000.00

     to $8,000.00 per month. (CR415; TB25).
-~




     12    Q.    How much money on average do you gross each

     13          month from the recovery home?

     14    A.    It fluctuates.

     15    Q.    On average.

     16    A.    I don't know exactly.

     17    Q.    How much do you charge residents?

     18   A.     Currently between 6- and 800 per month.

     19     Q.   And you currently have 10?

     20     A.   Approximately, yes.

     21     Q.   So, that's 6,000 to $8,000 a month?

     22    A.    That's correct.

     23     Q.   At one point you had 16?

     24    A.    Yes.

     (CR415 Pg. 73, ll. 12-24).

           This testimony, coupled with the fact that he has admitted that

     his home is a duplex that is "income producing" and that it is being


                                         32
 I
.J
     rented to     unrelated individuals not occupying the entire Lot,

     demonstrates that there is no fact issue, and that Lantana proved as a

     matter of law at the trial court level that Tarr was in breach of the
-;
 1   Declaration (twice) giving rise to the summary judgment.

         B. Tarr's claim that Lantana failed to give him proper
           notice of the alleged violations of the Declaration was
                   not plead and it is, therefore, waived.

          Tarr argues that section 12.8 of the Declaration requ1res that

     Lantana give 10-days notice of an alleged violation of the deed

     restriction before taking any action to enforce said restrictions. (TB46;

 !   CR34,   ~12.8).   Tarr argues that Lantana's alleged failure to give him
-~



     proper notice is "fatal" to Lantana's claim. (TB47).

          Courts have consistently held that lack of notice is an affirmative

 i   defense." Cadillac Bar West End Real Estate v. Landry's Restaurant,

     Inc., 399 S.W.3d 703, 707 (Tex. App.-Dallas 2013, pet. denied). See, e.g.,

     Forney 921 Lot Dev. Partners L L.P. v. Paul Taylor Homes, Ltd. , 349

     S.W.3d 258, 267-68 (Tex.App.-Dallas 2011, pet. denied) (failure to give

     required statutory notice is affirmative defense); Mastin v. Mastin, 70

     S.W.3d 148, 154 (Tex.App.-San Antonio 2001, no pet.) (failure to give

     notice of intent to accelerate contractual alimony payments is


                                         33
affirmative defense); Espinoza v. Victoria Bank Trust Co., 572 S.W.2d

816, 827 (Tex.Civ.App.-Corpus Christi 1978, writ ref'd n.r.e.) (failure to

give notice of intent to accelerate maturity of promissory note is

affirmative defense).

        An affirmative defense is waived if it is not pleaded. See Shoemake

v.   Fogel~   Ltd., 826 S.W.2d 933, 937 (Tex.l992) (citing Tex. R. Civ. P. 94).

        Tarr failed to plead said affirmative defense. (CR51-84). Because

Tarr failed to plead the affirmative defense of notice, it is waived and is

of no defense to Lantana's breach of Declaration cause of action.

                                        II.

     The Trial Court Did Not Err in Granting Summary Judgment
      with Respect to the Affirmative Defenses that Statutory Law
                      Prohibits Enforcement of the
                           Deed Restrictions

        On August 26, 2013, over a year after the suit was initially filed,

Lantana moved for partial summary judgment on both traditional and

no-evidence grounds as to Tarr's affirmative defenses. (CR168-285). In

its motion, Lantana argued that Tarr had the burden of establishing a

"handicap" under the Federal Fair Housing Act and a "disability" under

the Texas Fair Housing Act and that, in spite of over a year of litigation



                                         34
       and discovery, he failed to meet his burden and summary judgment

       should be granted in Lantana's favor. (CR170-173).

  1;         In his Response, the only "evidence" submitted by Tarr in an
- -i


       attempt to meet his burden under the Fair Housing Acts· and under

       TRCP 166a(i) was an affidavit that said nothing more than the

       following as it relates to a "handicap" and "disability": "all tenants of my

       group home are required to have a "handicap" as defined by the Federal

       Fair Housing Act, and they are required to have a drug or alcohol

       addiction for which they are seeking recovery;" "all tenants of my group

       home are required to have a "disability" as defined by the Texas Fair

       Housing Act, in that they are required to have a drug or alcohol

       addiction for which they are seeking recovery." (CR294-295).

            Even under the most liberal standard, Tarr's affidavit woefully

       fails to provide any evidence necessary to meet his evidentiary burden

       in response to the No-Evidence Motion for Partial Summary Judgment

       as to his Fair Housing Act affirmative defenses.

            A party claiming protections under the Fair Housing Act will bear

       the burden at trial on its Fair Housing Act claims, and a defendant to

       those claims can obtain summary judgment by pointing the court to the


                                            35
       absence of evidence of an essential element of the claim in question. See

       AHF Cmty. Dev. LLC v. City of Dallas, 633 F.Supp.2d 287, 298 (N.D.

       Tex. 2009); Celotex Corp. v. Catrett, 4 77 U.S. 317, 323, 106 S.Ct. 2548,
   j
···;

       91 L.Ed.2d 265 (1986). Once it does so, the party claiming Fair Housing

       Act protections must go beyond its pleadings and designate specific

       facts demonstrating that there is a genuine issue for trial. Celotex, 106

       S.Ct. 2548; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994)

       (en bane) (per curiam). (Fitzwater, J.). Summary judgment is

       mandatory if the Fair Housing Act claimant fails to meet his or her

       burden. See Little, 37 F.3d at 1076.

            Mere assertions of a factual dispute unsupported by probative

       evidence will not prevent summary judgment. See Celotex, 106 S.Ct.

   I   2505; Abbott v. Equity Group, Inc. , 2 F.3d 613, 619 (5th Cir.1993). In
  -,
       other words, conclusory statements, speculation and unsubstantiated

       assertions will not suffice to defeat a motion for summary judgment.

       Douglass v. United Servs. Auto. Ass 'n, 79 F.3d 1415, 1429 (5th Cir.1996)

       (en bane).

            Tarr's affidavit, which simply says that his residents are afforded

       protections under the Federal and Texas Fair Housing Acts because


                                           36
        they "have a drug or alcohol addiction for which they are seeking

        recovery," is not evidence required to prove protections afforded under

        the Acts.
---,'

              "The determination of whether an individual has a disability is

        not necessarily based on the name or diagnosis of the impairment the

        person has, but rather on the effect of that impairment on the life of the

        individual." See Taylor v. Principal Financial Group, Inc. , 93 F.3d 155,

        164 (5th Cir.), cert. denied, 519 U.S. 1029, 117 S.Ct. 586, 136 L.Ed.2d

        515 (1996). Therefore, a person claiming to be disabled because of

        alcoholism must still establish that he satisfies the requirements of the

        definition of a disability under the ADA and its accompanying

        regulations. McKey v. Occidental Chem. Corp., 956 F.Supp. 1313, 1318

        (S.D.Tex.1997). (addressing alcoholism under the ADA).

             Whether impairment substantially limits a major life activity

        must be determined, not by how "disabling" the impairment sounds, but

        rather by the impact of the impairment on the individual. I d.

             Tarr's statement that his residents are required to have a drug or

        alcohol addiction is nothing more than a statement that they have

        "impairment," but it offers none of the required evidence to establish a


                                            37
     handicap or disability. Id.   Thus, Tarr failed to meet his evidentiary

     burden of establishing a physical or mental impairment which

     substantially limits one or more of.such person's major life activities.

           Evidence that, when under the influence of drugs and alcohol it

     impacted a person's ability to walk, talk, think, sleep, and work is not

     evidence of a handicap or disability and "far more is required to trigger

     coverage." See Burch v. Coca-Cola Co., 119 F.3d 305, 316 (5th Cir.1997).

     "Permanency, not frequency, is a touchstone of a substantial living

     impairment. Id. Burch involved an alcoholic claiming a disability and
'.


     the Court determined that even with testimony from the Plaintiff and

     his treating physician that he was significantly impacted in his ability

     to live and work, these were not permanent impairments and did not

     offer protections under the purview of the Americans with Disabilities

     Act. Id.

          It appears that Tarr has all but conceded in his Appellate Brief

     that his affidavit failed to meet his evidentiary burden. None of the

     cases cited by Tarr in his Appellant Brief refute the applicable case law

     under both Texas and this Circuit Court of Appeals but is instead

     focused on jurisdictions that have no relationship to the State of Texas


                                         38
or   5th   Circuit Court of Appeals authority.   (TB34-39).   This is by no

accident because the case law that is directly on point to the factual

scenario of Tarr's renters demonstrates that Tarr failed to meet his

evidentiary burden in establishing a handicap or disability as to his

Fair Housing Act causes of action.

       Tarr then attempts to cite to "later-offered evidence" in support of

his position that this Court should ignore the fact that Tarr's initial

affidavit provided no evidence in his Response to the No-Evidence

Summary Judgment. (TB39, FN 9).           Tarr's statement that "the trial

court could have reconsidered the           summary judgment on the

affirmative defenses and considered the later-offered evidence" lacks

legal and factual merit in that Tarr did not ask for a Motion for

Reconsideration and the "additional evidence" that he cites to was never

even presented to the first trial court for consideration because it was

filed several months later in Response to Lantana's Second Motion for

Partial Summary Judgment, not the First No-Evidence Motion. (SCR

3-37). So they are of no evidence as to the Partial Summary Judgment

as to Tarr' s Fair Housing Act affirmative defenses.




                                     39
      Further, even if Tarr had set his Motion for Reconsideration, new

arguments to defeat summary judgment presented after the trial court

granted a summary judgment do not warrant reversaL See Brookshire

Katy Drainage Dist. v. Lily Gardens, LLC, 333 S.W.3d 301, 313 at FN. 3

(Tex.App.-Houston [1st Dist.] 2010, pet. denied), citing Macy v. Waste

Mgmt., Inc., 294 S.W.3d 638, 650-51 (Tex.App.-Houston [1st Dist.]

2009, pet. flied).

      Tarr failed to produce the evidence of a handicap or disability as

required to fall within the purview of the Federal and Texas Fair

Housing Acts in response to Lantana's No-Evidence Motion for Partial

Summary Judgment as to his Fair Housing Act affirmative defense,

pursuant to Texas Rules of Civil Procedure 166a(i), and, as such, the

trial court's ruling in Lantana's favor was proper and should be upheld.

      Tarr also asserts that there is a "fact issue with respect to

whether the residents are also "regarded as disabled'' under the third

definition (of the Fair Housing Act). (TB42-46). This argument also

fails as a matter of law.    The evidence cited was not produced in

Response to the No-Evidence Motion for Partial Summary Judgment.




                                   40
(CR286-295).      Thus, it offers no support to the Fair Housing Act

affirmative defenses. See TRCP 166a(i).

                                   III.

        A. The Trial Court Did Not Erroneously Grant Summary
          Judgment on Tarr's Counterclaims of the Federal Fair
              Housing Act and The Texas Fair Housing Act

        Lantana filed a second Motion for Partial Summary Judgment on

January 1, 2014. (CR298-416). Lantana also filed a Reply Brief Tarr's

Response which was also considered by the Court. (CR420-495; CR496-

497).     The Motion for Partial Summary Judgment included a

Traditional Summary Judgment under TRCP 166a(c) as to Tarr's

counterclaims for the Federal and Texas Fair Housing Act. (CR301).

        The bases for the Traditional Motion for Summary Judgment as to

Tarr's Federal and Texas Fair Housing Act causes of action were two-

fold: first, no fact issue then existed as to said claims since the trial

court had already ruled that the residents were not afforded protections

.under the act since they were not handicapped or disabled as defined by

the acts. (CR298-301). Secondly, even if the court had not already ruled

on the issue, summary judgment was still proper because Tarr had

(once again) failed to prove that the residents were qualified individuals


                                    41
falling within the afforded protections of the Acts because they are

handicap or disabled, the most critical required element of establishing

the Fair Housing Act causes of action for which he has the burden.

(CR430-432).

        The Court reviewed the briefing provided by Lantana and Tarr, as

well as all evidence presented by Tarr in his attempt to establish the

required elements of proof that the residents were handicapped or

disabled as defined by the acts as well as argument of counsel, and

ruled that the partial summary judgment as to Tarr's Counterclaims for

the Federal and Texas Fair Housing Acts should be granted. (CR497-

498).

        Tarr first asserts that the trial court erred in granting the Motion

for Partial Summary Judgment as to his Federal and Texas Fair

Housing Act claims 1) "because a First Partial Summary Judgment was

in err, it cannot negate Mr. Tarr's Counterclaims"; 2) "Even a valid

partial summary judgment on Mr. Tarr's statutory affirmative defenses

would not negate the Counterclaims." (TB47-51).

        A party claiming protections under the Fair Housing Act will bear

the burden at trial on its Fair Housing Act claims, and a defendant to


                                      42
those claims can obtain summary judgment by pointing the court to the

absence of evidence of an essential element of the claim in question. See

AHF Cmty .. Dev. LLC v. City of Dallas, 633 F.Supp.2d 287, 298 (N.D.

Tex. 2009); Celotex Corp. u. Catrett, 4 77 U.S. 317, 323, 106 S.Ct. 2548,

91 L.Ed.2d 265 (1986). Once it does so, the party claiming Fair Housing

Act protections must go beyond its pleadings and designate specific

facts demonstrating that there is a genuine issue for trial. See Celotex,

106 S.Ct. 2548; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th

Cir.1994) (en bane) (per curiam). (Fitzwater, J.). Summary judgment is

mandatory if the Fair Housing Act claimant fails to meet his or her

burden. See Little, 37 F.3d at 1076.

     Mere assertions of a factual dispute unsupported by probative

evidence will not prevent summary judgment. See Celotex 106 S.Ct.

2505; Abbott v. Equity Group, Inc., 2 F.3d 613, 619 (5th Cir.1993). In

other words, conclusory statements, speculation and unsubstantiated

assertions will not suffice to defeat a motion for summary judgment.

Douglass v. United Servs. Auto. Ass'n, 79 F .3d 1415, 1429 (5th Cir.1996)

(en bane).




                                    43
.i
          As set forth in the preceding section of this Reply Brief, the partial

     summary judgment as to Tarr's affirmative defenses of the Federal and

     Texas Fair Housing Act was absolutely correct because Tarr failed to

     produce the requisite evidence required to meet his evidentiary burden

     to avoid said affirmative defense. The Court has already ruled that the

     renters were not handicapped or disabled, so there was no fact issue.

     As such, there was no such "erroneous summary judgment on the

     affirmative defenses" as argued in Tarr's Appellate Brief. (TB47-51).

          Tarr's second argument, that even without the First Motion for

     Partial Summary Judgment granted, there is evidence to establish a

     "handicap" and "disability" under the Federal and Texas Fair Housing

     Act cause of action which should have precluded summary judgment, is

     also without merit. Tarr first attempts to argue that the Court should

     (once again) reconsider affidavits filed in response to the Second Motion

     for Partial Summary Judgment to somehow reconsider its First Motion

     for Partial Summary Judgment as to the affirmative defenses even

     though Tarr failed to file a Motion for Reconsideration. (TBS0-51). As

     set forth above, Tarr never set a Motion for Reconsideration or

     presented the new affidavits to the trial court who ruled on the Motion


                                         44
for Partial Summary Judgment as to the affirmative defenses, so that

argument is waived.

     Tarr then asserts that the affidavits create a fact issue as to

whether the residents of his group home were handicapped or disabled

within the meaning of the relevant statutes. (TB51). However, as

argued by Lantana in its Reply, which was also considered by the trial

court, these affidavits (like Tarr's first affidavit) do nothing more than

establish that the residents are alleged to suffer from alcohol and drug

dependency. (CR430-432; SCR 19-37).          This is not evidence of a

handicap or disability under the Fair Housing Acts.

     "The determination of whether an individual has a disability is

not necessarily based on the name or diagnosis of the impairment the

person has, but rather on the effect of that impairment on the life of the

individual." See Taylor v. Principal Financial Group, Inc., 93 F.3d 155,

164 (5th Cir.), cert. denied, 519 U.S. 1029, 117 S.Ct. 586, 136 L.Ed.2d

515 (1996). Therefore, a person claiming to be disabled because of

alcoholism must still establish that he satisfies the requirements of the

definition of a disability under the ADA and its accompanying




                                    45
regulations. McKey v. Occidental Chem. Corp., 956 F.Supp. 1313, 1318

(S.D.Tex.1997). (addressing alcoholism under the ADA).

      Whether impairment substantially limits a major life activity

must be determined, not by how "disabling" the impairment sounds, but

rather by the impact of the impairment on the individual. !d.

      Tarr's statement that his residents are required to have a drug or

alcohol addiction is nothing more than a statement that they have

"impai~ment,"   but it offers none of the required evidence to establish a

handicap or disability. Id. Thus, Tarr failed to meet his evidentiary

burden of establishing a physical or mental impairment which

substantially limits one or more of such person's major life activities.

     Further, evidence that, when under the influence of drugs and

alcohol it impacted a person's ability to walk, talk, think, sleep, and

work is not evidence of a handicap or disability and "far more is

required to trigger coverage". See Burch v. Coca-Cola Co., 119 F.3d 305,

316 (5th Cir.1997). "Permanency, not frequency, is a touchstone of a

substantial living impairment. !d.

     Burch involved an alcoholic claiming a disability and the Court

determined that even with testimony from the Plaintiff and his treating


                                     46
physician that he was significantly impacted in his ability to live and

work these were not permanent impairments and did not offer

protections under the purview of the Americans with Disabilities Act.

I d.

         All of the affidavits produced by Tarr in Response to Lantana's

Motion for Partial -Summary Judgment as to his Fair Housing Act

causes of action do nothing more than assert that the renters are

"alcoholics" and/or "former drug addicts" and the affidavits go through a

litany of arrest for DUI, imprisonment for drug possession, money

wasted, and relationships impacted which, as in Burch, is of no evidence

as the affidavits do not establish a permanent, substantially limiting

impairment. (SCR 19-37).

       B. There is no fact issue with respect to whether the residents
          are "regarded as disabled" under the third definition of the
         Fair Housing Act

         Tarr argues that the residents are regarded as disabled under the

Fair Housing Act and cites as evidence an email sent by the former

HOA president to the management company. (TB42-45).

         Tarr's "evidence"   actually proves there is no fact issue.

Specifically, the e-mail sent, per Tarr "clearly demonstrates that the


                                      47
 reason the HOA does not want Westlake recovery house residents living

· in the neighborhood is precisely because the home is a group home for

 recovering alcoholics and drug addicts." (TB45). The reason this is not a

 fact issue (and actually proves as a matter of law that there wasn't a

 discrimination based upon a person that is "regarded as disabled" is

 because simply regarding someone as an "alcoholic or drug addict"

 without evidence that they actually believe that the person has a

 physical impairment that substantially limits a major life activity

 (when in fact they do not) is not a violation of the Federal Housing Act.

 "Regarding [a claimant] as anything other than [what they] actually

 [are]:    an alcoholic whose alcoholism did not impair any major life

 activity, including the major life activity of working, is insufficient to

support a 'regarded as having an impairment' claimant." See Burch v.

 Coca-Cola at 322. Because there is no fact issue as to the "regarded as

 disabled" prong of the Fair Housing Act, Summary Judgment was

 proper.




                                     48
                                    IV.

      The Trial Court Did Not Err in Awarding Attorneys Fees
         (which were agreed to by the parties) to Lantana

      On June 12, 2014, Lantana filed a Motion for Final Summary

Judgment whereby it argued that because Tarr's affirmative defenses

and    counterclaims,   including     the   affirmative   defenses   and

counterclaims of the Federal and Texas Fair Housing Act, had all been

subject to prior Motions for Summary Judgment, and because the trial

court had ruled as a matter of law that Tarr was in breach of the

Declaration, it was entitled to a Final Summary Judgment pursuant to

TRCP 166a(c) seeking a permanent injunction consistent with the

Declaration. (CR499M605).    Lantana also sought its attorneys' fees

pursuant to the Texas Property Code §5.006. (CR499M605). The Court

partially granted the summary judgment and ordered Tarr to desist and

refrain from breaching the Declarations of Covenants, Conditions, and

Restrictions for Lantana Southwest single family properties, but it

denied the attorneys fees because it felt there was a fact issue on the

fees . (CR617 ~620).

      Tarr's entire prem1se for this his argument fails because the

attorney's fees were not awarded based on an injunction but were

                                    49
instead awarded pursuant to the Texas Property Code after Lantana

proved, as a matter of law, that Tarr was in breach of the Declaration

and, further, the attorney's fees that he is now complaining of were

actually agreed to by.Tarr and his prior counsel

        Specifically, the attorney's fees were not awarded by the Court

when requested in Lantana's Third Motion for Summary Judgment.

(CR617 -620). While that court did issue an injunction, the court found

there was a fact issue as to the fees and did not award them. (CR61 7-

620).

        Instead, the attorney's fees were later agreed to by the parties and

were made part of a Modified Final Judgment:

        The Court finds based on the signature of their counsel that
        Lantana and Tarr have agreed that $88,000.00 are
        reasonable and necessary fees for the prosecution and
        defense of the above-referenced lawsuit by Lantana up
        to the signing of this Final Modified Judgment. Lantana and
        Tarr further agreed that $35,000.00 are reasonable and
        necessary fees to be paid to Lantana should Tarr file and
        unsuccessful appeal of this case to the Texas Court of
        Appeals. This agreed amount, however, is the maximum
        amount to be paid by Tarr to Lantana in the event of said
        appeal and all amounts due and payable must have been
        incurred by or on behalf of Lantana. No part of this Final
        Modified Judgment or the prior orders of this Court are
        agreed to by Tarr except the amount of reasonable and
        necessary attorney's fees set forth above, and Tarr


                                      50
      reserves his right to appeal from every other ruling in those
      prior orders. (CR621-CR624).

      However, even if the fees had not been agreed to by Tarr, the trial

court was required, pursuant to Texas Property Code §5.006, to award

said fees because Lantana was the "prevailing party". See Texas

Property Code §5.006. Specifically, all that was required for Lantana to

satisfy the "prevailing party" requirement under the Code was to prove

that Tarr had violated a deed restriction:            "[n]or is there any

requirement 1n such suits that the plaintiff must plead monetary

damages to be labeled the prevailing party on a finding that a

defendant violated a deed restriction. Rather, the plaintiff simply must

prove that the defendant intended to do an act which would breach the

deed restriction or that the defendant violated the deed restriction."

Nash v. Peters, 303 S.W.3d 359, 362 (Tex. App. El Paso 2009, no pet.).

See also Jim Rutherford Investments, Inc. v.             Terramar Beach

Community Ass'n, 25 S.W.3d 845, 853 (Tex.App.-Houston [14th Dist.]

2000, pet. denied); Munson v. Milton, 948 S.W.2d 813, 815 (Tex.App.-

San Antonio 1997, pet. denied). "If the court so finds, the plaintiff is the

prevailing party." Nash at 362. See also Briargrove Park Property

Owners, Inc. v. Riner, 867 S.W.2d 58, 61 (Tex.App.-Texarkana 1993,

                                     51
        writ denied); City of Houston u. Muse, 788 S.W.2d 419, 424 (Tex.App.-

        Houston [1st Dist.] 1990, no writ). As the successful prosecutor of the

        breach-of-deed restrict1on, the court must award him attorneys' fees.

        Tex. Prop.Code Ann. § 5.006(a); Anderson v. New Property Owners'

        Ass'n of Newport, Inc., 122 S.W.3d 378, 390 (Tex.App.-Texarkana 2003,

        pet. denied); Pebble Beach Prop. Owners' Ass'n v. Sherer, 2 S.W.3d 283,

        291-92 (Tex.App.-San Antonio 1999, pet. denied); Inwood North

        Homeowners' Ass'n,      Inc.   u.   Meier,   625 S.W.2d   742,   743-44

        (Tex.Civ.App.-Houston [1st Dist.] 1981, no writ).

    ;
    i
·---i
             Because Lantana was the "prevailing party" pursuant to Texas

        Property Code§ 5.006, and because Tarr agreed to said fees in the Final

        Modified Judgment, the awards of fees was proper and should be

        upheld.

                            CONCLUSION AND PRAYER

             Mter a year of litigation and discovery, Tarr was unable to meet

        his evidentiary burden in producing the requisite evidence needed to

        establish that his breach of the Residential Use Declaration restriction

        was protected by the Federal and Texas Fair Housing Act.            The

        respected Travis County Judges who reviewed all of the briefing and


                                            52
evidence presented by both parties, and who eventually ruled in favor of

Lantana on its breach of Declaration cause of action against Tarr, and

against Tarr on all of his causes of action, followed the law in what led

to a Final Judgment in Lantana's favor. Because Tarr failed to meet

his burden, and because Lantana met its burden, Lantana respectfully

requests that this Honorable Court uphold the Final Judgment in

Lantana's favor.



                           Respectfully submitted,

                          ROBERTS MARKEL WEINBERG BUTLER
                          HAILEY PC




                          GREGORY B. GODKIN
                          Texas State Bar No. 24002146
                          111 Congress, Suite 1620
                          Austin, TX 78701
                          ggodkin@rmwbhlaw .com
                          Telephone: (512) 279-7344
                          Fax: (713} 840-9404
                          Attorneys for Lantana Southwest
                          Homeowners' Association, Inc.




                                   53
                 CERTIFICATE OF COMPLIANCE

     Pursuant to Texas Rules of Appellate Procedure 9.4(i)(3), I hereby

certify that this brief contains 10,097 words.     This is a computer-

generated document created in Microsoft Word, using 14-point typeface

for all text. In making this certificate of compliance, I have relied on

the word count provided by the software used to prepare this document.




                                 Gregory B. Godkin




                                   54
                     CERTIFICATE OF SERVICE

     I hereby certify that I served a true and correct copy of the

foregoing Reply Brief of Appellee on all counsel of record on March 18,

2015, as listed below:

Via Electronic Mail: Matthew@PloegerLaw.com
Mr. Matthew Ploeger
Law Office of Matthew Ploeger
901 S. Mopac Expressway, Suite 300
Barton Oaks Plaza, Building One
Austin, Texas 787 46
(512) 298-2088 Phone

Attorney for Kevin Tarr

                                       .· ~
                                ~B.          GODKIN




                                  55
                           APPENDIX

Appendix A: Final Judgment)

Appendix B: Texas Property Code §5.006)




                                56
Appendix A




    57
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            Defendant/Counter-Plaintiff                  §                  98TH JUDICIAL DISTRICT


                                                 FINAL JUDGMENT

                    Plaintiff LANTANA         SOUTHWEST        HOMEOWNERS' ASSOCIATION,                INC.,

            ("Plaintiff' or "Lantana") filed this lawsuit (the "lawsuit") on or about August 14, 2012 against

            Kevin Tarr ("Tarr").

                    On or about August 27, 2012 Tarr filed his Answer and Counterclaim.

                    On September 9, 2013 the Honorable Stephen Yelenosky signed an Order Granting

            Lantana's No Evidence Motion for Partial Summary Judgment as to Tarr's Federal Fair Housing

            Act, Texas Fair Housing Act, American's With Disabilities Act, and Federal Rehabilitation Act

            affirmative defenses. The Court hereby includes said Order by reference in this Agreed Final

            Judgment.

                    On March 24, 2014, the Honorable Eric Shepperd signed an Order Granting Lantana's

            Traditional Motion For Partial Summary Judgment as to Tarr's Texas and Federal Fair Housing

            Act, Texas and Federal Americans With Disabilities Act, Federal Rehabilitation Act, 151 and 14th

            Amendment rights and Texas Constitution, City of Austin's Code of Municipal Ordinances and

            Austin's Municipal Public Policy, and Lantana's violation of its · own residential use deed

            restrictions causes of action. Judge Shepperd also Granted Lantana's No Evidence Motion for

            Partial Summary Judgment as to Tarr's 1st and 14th Amendment rights and Texas Constitution,




                                                                                70
                                              DC        BK14246 PG1794

..


     City of Austin's Code of Municipal Ordinances and Austin's Municipal Public Policy, and

     Lantana's violation of its own residential use deed restrictions c!luses of action. The Court

     hereby includes said Order by reference in this Agreed Final Judgment.

            On March 24, 2014, Judge Shepperd also Granted Lantana's Traditional Motion for

     Partial Summary Judgment as to its breach of Lantana's Declaration of Covenants, Conditions,

     and Restrictions cause of action against Tarr. The Court hereby incl11des said Order by reference

     in this Agreed Final Judgment.

            On July 30•2014, the Honorable Gisela D. Triana partially Granted Lantana's Motion for

     Final Summary Judgment whereby she commanded Tarr to deist an.d refrain from breaching the

     Declaration of Covenants, Conditions and Restrictions for Lantana Southwest Single Family

     Properties and ordered the Clerk to issue a writ of injunctions in conformity with the law and the

     terms of her Order. The Court hereby includes said Order by reference in this Agreed Final

     Judgment.

            The only remaining issue remaining in the case is Lantana's claim for attorney's fees.

     The Court fmds based on the signatures of their coWlsel that Lantana and Tarr have agreed that

     eighty eight thousand dollars ($88,000.00) are reasonable and necessary fees for the prosecution

     and defense of the above-referenced Lawsuit by Lantana up to the signing of this Agreed Final

     Judgment. Lantana and Tarr further agree that thirty five thousand dollars ($35,000.00) are

     reasomible and necessary fees to be paid to Lantana should Tarr file an unsuccessful appeal of

     this cause to the Texas Court of Appeals. This agreed amount, however, is the maximum

     amount to be paid by Tarr to Lantana in the event of said appeal ancl all amounts due and payable

     must have been incurred by or on behalf of Lantana.




                                                                         71
Appendix B




    58
PROP §5.006. ATTORNEY'S FEES IN BREACH OF RESTRICTIVE
COVENANT ACTION

(a)   In an action based on breach of a restrictive covenant pertaining

to real property, the court shall allow to a prevailing party who asserted

the action reasonable attorney's fees in addition to the party's costs and

claim.

(b)   To determine reasonable attorney's fees, the court shall consider:

(1)   the time and labor required;

(2)   the novelty and difficulty of the questions;

(3)   the expertise, reputation, and ability of the attorney; and

(4)   any other factor.




                                     59
