                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-10-00278-CV


SCOTT R. LEAKE AND SUSAN E.                                        APPELLANTS
LEAKE, INDIVIDUALLY AND ON
BEHALF OF THE
ARCHITECTURAL CONTROL
COMMITTEE OF THE SUNNY
MEADOWS ADDITION

                                        V.

THERMAN M. CAMPBELL, JR. AND                                        APPELLEES
SUSAN M. CAMPBELL


                                     ----------

        FROM THE 342ND DISTRICT COURT OF TARRANT COUNTY

                                     ----------

                                   OPINION
                                     ----------

      Appellants Scott R. and Susan E. Leake, individually and on behalf of the

Architectural Control Committee of Sunny Meadows Addition, appeal from the

trial court’s summary judgment in favor of appellees Therman M. and Susan M.

Campbell. In two issues, the Leakes claim that the trial court reversibly erred by
denying their motion for summary judgment while granting the Campbells’ and by

awarding attorney’s fees to the Campbells. We reverse and remand.

                                Background Facts

      The Campbells purchased their home at 3102 Sunny Meadows Court,

Dalworthington Gardens, Tarrant County, Texas, on December 27, 2007. The

Leakes are the Campbells’ neighbors and have lived at 3104 Sunny Meadows

Court since July 31, 1990. The housing community in which they all reside,

Sunny Meadows Addition, is subject to recorded deed restrictions. The part of

the restrictive covenants that are pertinent to this case are the following:

      For the purpose of creating and carrying out a uniform plan for the
      improvements and sale of the lots, blocks and homesite tracts to be
      made from the land described herein, the following restrictions upon
      the use of said property are hereby established and shall be referred
      to, adopted and made a part of each and every contract and deed
      executed. . . .

             ....

      (3) No structure shall be erected, altered, placed or permitted to
      remain on any lot carved from the above described property other
      than one single family dwelling not to exceed (except by
      Architectural Control Committee approval) two stories in height,
      private attached or detached garage or carport for not more than
      four (4) cars facing a direction other than the street, and reasonable
      outbuildings for single family use. . . .

      (4) No house, dwelling and/or other structure of any kind or
      character whatsoever may be moved into any lot carved out of the
      property described herein.

             ....

      Architectural Control: No building shall be erected, placed or altered
      on any lot until the construction plans, specifications, and a plan


                                          2
      showing the location of the structure shall have been approved by
      the Architectural Control Committee. . . . Approval shall be as
      provided in Paragraph 3 below.

            Procedure: Committee’s approval for [sic] disapproval as
      required by this covenant shall be in writing. In the event the
      committee or it’s [sic] designated representative fails to approve or
      disapprove within 15 days after plans, specifications and plot plan
      have been submitted to it or in any event if no suit to enjoin the
      construction has been commenced prior to the completion thereof,
      approval will not be required and the restrictive covenants herein
      contained shall be deemed to have been fully complied with.

      (4) These restrictions are for the benefit of and shall inure to each
      and every property owner in this addition, and may be enforced by
      anyone [sic] or more of such property owners and they shall be
      allowed to recover from a violating party, all costs and attorney fees
      and out-of-pocket expenses incurred in enforcement of any
      covenants herein whether by judicial means or settlement.
      [Emphasis added.]

      The Campbells claim that they were unaware of the deed restrictions when

they purchased their property while the Leakes claim that they specifically chose

the community because of its deed restrictions.

      After the Campbells purchased their home, they sought to make

improvements to the property. On January 8, 2008, Tuff Shed constructed a

storage shed on the Campbells’ property. According to Therman Campbell, Tuff

Shed employees constructed the shed on-site.1 In addition to the shed, Therman

wished to build a carport and shelter for his motor home. As a first step, he

began to pour a concrete pad and driveway on January 21, 2008; he completed


      1
      The Leakes claim that the shed was preassembled off-site and placed on
the Campbells’ property.


                                        3
the work on January 26, 2008. Next, Therman purchased a spa, along with a

cabana to cover and enclose the spa, on February 4, 2008. The installation of

the spa and construction of the cabana both occurred on February 11, 2008.

Lastly, Therman sought to have an RV shelter installed.         Before doing so,

Therman approached Scott Leake in April 2008 seeking approval for his plans.

Scott conveyed his disapproval with the plans and directed Therman’s attention

to the restrictive covenants barring this type of construction. According to Scott,

immediately after this conversation, he informed ACC member Mark Appling of

Therman’s plan to construct an RV shelter. According to Appling, he went to the

Campbells’ home that same day and informed Therman of the restrictive

covenants and the likelihood that the RV shelter would be in violation of those

restrictive covenants.   Within a week Appling hand delivered a copy of the

restrictive covenants to Therman. Therman nevertheless had the RV shelter

constructed on May 5, 2008.

      On May 10, 2008, Appling went to the Campbells’ home and informed

them that the shed, cabana, and RV shelter were not in compliance with the

restrictive covenants.   On the following day, Therman wrote to the ACC

requesting a variance for the three structures.     On or about May 20, 2008,

Therman received a letter from Kerry Moseley, a member of the ACC and one of

the developers of the subdivision, informing Therman that his request for a

variance was denied and instructing the Campbells to remove the shed, cabana,

and RV shelter at once. The letter went on to specify the reasons for denying the


                                        4
Campbells’ variance, which included not seeking the ACC’s approval before

installation and construction of the three structures. Campbell responded with

another letter, imploring the ACC to reconsider its findings. The ACC remained

unpersuaded, and the structures remained on the Campbells’ property.

      The Leakes sued the Campbells on November 13, 2008, seeking a

declaratory judgment that the structures are in violation of the restrictive

covenants, a permanent injunction ordering the Campbells to remove the

structures, and attorney’s fees. The Campbells filed their first amended original

answer and counterclaim on November 30, 2009, in which they raised the

affirmative defenses of waiver, estoppel, and violation of section 202.004(a) of

the property code and also pled for attorney’s fees under the Uniform Declaratory

Judgments Act. Tex. Civ. Prac. & Rem. Code Ann. § 37.009 (West 2008); Tex.

Prop. Code Ann. § 202.004(a) (West 2007) (“An exercise of discretionary

authority by a property owners’ association or other representative designated by

an owner of real property concerning a restrictive covenant is presumed

reasonable unless the court determines by a preponderance of the evidence that

the   exercise       of    discretionary   authority   was   arbitrary,   capricious,   or

discriminatory.”).        The Campbells then filed a traditional summary judgment

motion claiming that the structures were deemed approved under the deed

restrictions because the lawsuit had not been filed until after the completion of

construction. The Leakes filed a response and their own traditional and no-

evidence motions for summary judgment, claiming that the structures violate the


                                              5
restrictive covenants as a matter of law and that the Campbells had not brought

forward any evidence of a waiver of a right to enforce the restrictive covenants or

a violation of property code section 202.004(a). At the conclusion of a hearing on

both motions, the trial court granted the Campbells’ motion for summary

judgment, denied the Leakes’ motion, and awarded the Campbells attorney’s

fees in the amount of $10,348 and costs of $305.32.

                              Standard of Review

      We review a summary judgment de novo. Travelers Ins. Co. v. Joachim,

315 S.W.3d 860, 862 (Tex. 2010). We consider the evidence presented in the

light most favorable to the nonmovant, crediting evidence favorable to the

nonmovant if reasonable jurors could, and disregarding evidence contrary to the

nonmovant unless reasonable jurors could not. Mann Frankfort Stein & Lipp

Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We indulge every

reasonable inference and resolve any doubts in the nonmovant’s favor. 20801,

Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008). A defendant who conclusively

negates at least one essential element of a cause of action is entitled to

summary judgment on that claim. Frost Nat’l Bank v. Fernandez, 315 S.W.3d

494, 508 (Tex. 2010), cert. denied, 131 S. Ct. 1017 (2011); see Tex. R. Civ. P.

166a(b), (c).

      When both parties move for summary judgment and the trial court grants

one motion and denies the other, the reviewing court should review both parties’

summary judgment evidence and determine all questions presented.             Mann


                                        6
Frankfort, 289 S.W.3d at 848; see Myrad Props., Inc. v. Lasalle Bank Nat’l Ass’n,

300 S.W.3d 746, 753 (Tex. 2009).        The reviewing court should render the

judgment that the trial court should have rendered. Mann Frankfort, 289 S.W.3d

at 848.

             Propriety of Summary Judgment for the Campbells

      In their first issue, the Leakes claim that the trial court erred in granting

summary judgment to the Campbells and denying their motion for summary

judgment because the court based its decision on an erroneous construction of

the restrictive covenants.

Interpretation of Restrictive Covenants

      We review a trial court’s interpretation of a restrictive covenant de novo.

Raman Chandler Props, L.C. v. Caldwell’s Creek Homeowners Ass’n, 178

S.W.3d 384, 390–91 (Tex. App.––Fort Worth 2005, pet. denied); Air Park–Dallas

Zoning Comm. v. Crow Billingsley Airpark, Ltd., 109 S.W.3d 900, 909 (Tex.

App.––Dallas 2003, no pet.). We construe restrictive covenants in accordance

with general rules of contract construction. Pilarcik v. Emmons, 966 S.W.2d 474,

478 (Tex. 1998); Raman Chandler, 178 S.W.3d at 391.            Whether restrictive

covenants are ambiguous is a question of law. Raman Chandler, 178 S.W.3d at

391; Dyegard Land P’ship v. Hoover, 39 S.W.3d 300, 308–09 (Tex. App.––Fort

Worth 2001, no pet.). A covenant is unambiguous as a matter of law if it can be

given a definite or certain legal meaning. Pilarcik, 966 S.W.2d at 478; Raman

Chandler, 178 S.W.3d at 391. Mere disagreement over the interpretation of a


                                        7
restrictive covenant does not render it ambiguous. Air Park–Dallas, 109 S.W.3d

at 909. An unambiguous restrictive covenant should be liberally construed to

give effect to its purpose and intent. Tex. Prop. Code Ann. § 202.003(a) (West

2007); Dyegard Land P’ship, 39 S.W.3d at 308–09.

Analysis

      Here, both motions for summary judgment hinge on the proper

interpretation of the “in any event” deemed approval provision found under the

right to enforce section of the restrictive covenants:

      In the event the committee or its [sic] designated representative fails
      to approve or disapprove within 15 days after plans, specifications
      and plot plan have been submitted to it or in any event if no suit to
      enjoin the construction has been commenced prior to the completion
      thereof, approval will not be required and the restrictive covenants
      herein contained shall be deemed to have been fully complied with.
      [Emphasis added.]

While each party agrees that the language is unambiguous, each interprets it

differently. The Leakes contend that the deemed approval language is effective

only after plans and specifications have been submitted to the ACC in writing by

a homeowner.       Thus, under the Leakes’ interpretation, the “in any event”

language does not apply to situations in which the homeowner fails to seek

approval before beginning and completing construction. On the other hand, the

Campbells claim that in conformance with this court’s opinion in Buckner v.

Lakes of Somerset Homeowners Ass’n, 133 S.W.3d 294 (Tex. App.––Fort Worth

2004, pet. denied), the phrase allows for deemed approval of violations in any

situation other than those in which the ACC has given its approval or has failed to


                                          8
disapprove of plans, e.g., when the ACC disapproves but fails to enjoin

construction of violating structures before their completion.      According to the

Campbells, it does not matter whether plans are submitted before construction

because a plain reading of “in any event” suggests an acceptance of all

scenarios. The Leakes claim Buckner should not control here.

      As both parties make clear in their respective briefs, our decision turns on

our prior opinion in Buckner. In Buckner, a homeowner sought approval of a

roofing material from the subdivision’s ACC but began installing the roof without

waiting for the ACC’s decision. Id. at 295. The ACC eventually disapproved the

roofing materials, but the homeowner continued to complete the roof with the

disapproved materials. Id. Although communications between the homeowner

and ACC took place over the course of at least a month, the homeowners’

association did not file suit until after the homeowner had completed the roof. Id.

at 295–96, 298. The “deemed approval” language in that case stated as follows:

      [N]or shall any exterior addition to or change or alteration therein be
      made until the details . . . shall have been submitted to and
      approved in writing . . . by [the ACC]. . . . In the event the [ACC] fails
      to approve or disapprove any such detail, design, plan, specification
      or location within thirty (30) days after submission to it, or in any
      event if no suit to enjoin has been commenced prior to the
      completion thereof, approval will not be required and this Article will
      be deemed to have been fully complied with.

Id. at 296–97.

      We held that the above language

      is unambiguous. After describing one manner in which approval will
      be deemed, in the event the ACC fails to approve or disapprove


                                          9
      submitted plans within 30 days after submission, the article
      continues by describing another manner of deemed approval:
      LSHOA’s failure to file suit before the roof is complete. The use of
      the word “any” shows an intent to describe all scenarios other than
      those in which the ACC gives its explicit approval or fails to
      disapprove submitted plans within 30 days: when the homeowner
      has not complied with Article VI by requesting preapproval or when
      the ACC has denied approval and the homeowner continues making
      alterations in accordance with the disapproved plans. LSHOA’s
      proposed interpretation would render the “in any event” language
      meaningless; if the ACC does not approve or disapprove of the
      submitted plans within 30 days, the plans are deemed approved in
      accordance with Article VI. Thus, a subsequent suit to enjoin
      activities completed in accordance with such plans would be
      pointless because LSHOA would lose.

             LSHOA contends that Pilarcik v. Emmons controls this issue
      because the supreme court construed the same language in that
      case and determined that “the covenants [in that case] dictate
      default consequences in the event the ACC does not act swiftly
      enough.” 966 S.W.2d at 480. The covenant in Pilarcik is almost
      identical to the covenant in this case. LSHOA contends that the
      quoted language indicates that “default consequences” should occur
      only if the ACC does not approve or disapprove of a homeowner’s
      plans timely enough. However, in Pilarcik a group of individual
      homeowners, rather than the homeowners association, sued the
      nonconforming homeowner, and the issue was whether the ACC
      could grant approval of nonconforming materials after the 30 day
      period had expired. Id. at 476, 479–80. The homeowners filed suit
      when the roof was 98 percent complete; thus, the second part of the
      covenant, which is at issue in this case, was not at issue in that
      case. Id. at 477. Further, the quoted language from Pilarcik
      supports our conclusion: by not filing suit before the Buckners
      completed construction of their new roof, i.e., by not acting swiftly
      enough, LSHOA may suffer default consequences, i.e., the
      nonconforming roofing materials being deemed approved.

Id. at 297–98 (underlining added).

      We agree that if we were bound to follow the underlined language above in

Buckner, we would affirm the summary judgment for the Campbells. However, a



                                       10
more careful reading of the restrictive covenants in Buckner and in this case

compels us to conclude that the underlined language above was not necessary

to the disposition in Buckner and was, therefore, dictum.           In addition, that

underlined language conflicts with another provision of the restrictive covenants

in this case and in Buckner. In the present case, the provision reads,

              [T]he owner or owners of any of the above land shall have the
      right to sue for and obtain an injunction, prohibitive or mandatory, to
      prevent the breach of or to enforce the observance of the
      restrictions, in addition to ordinary legal actions for damages, and
      failure to of the parties or owner or owners of any of the lot or
      lots . . . to enforce any of the restrictions herein set forth at the time
      of its violation shall in no event, be deemed to be a waiver of a right
      to do so thereafter.

[Emphasis added.]     The covenants in Buckner contained substantially similar

language. See Moore v. Zeller, 153 S.W.3d 262, 264 (Tex. App.––Beaumont

2004, pet. denied) (holding that appellate court may judicially notice its own

records); Stroud v. VBFSB Holding Corp., 917 S.W.2d 75, 78 (Tex. App.––San

Antonio 1996, writ denied) (holding same).

      In the present case, the no-waiver language is found in the first section of

the Right to Enforce section of the restrictions. The language about deemed

approval is found two sections later in the Architectural Control Committee

section that discusses the procedure for approval or disapproval of plans that are

actually presubmitted to the ACC for review.         To construe these seemingly

conflicting provisions in a way that does not render the covenants meaningless

compels only one conclusion: the “in any event” deemed approval language



                                         11
applies only when a homeowner actually submits plans to the ACC for matters

which require preapproval by the ACC and the ACC fails to act within the

specified time period. See Pavecon, Inc. v. R-Com, Inc., 159 S.W.3d 219, 222

(Tex. App.––Fort Worth 2005, no pet.) (“We are to interpret a contract in such a

manner that none of its provisions will be rendered meaningless.”); see also MCI

Telecomms. Corp. v. Tex. Utils. Elec. Co., 995 S.W.2d 647, 652 (Tex. 1999).2 In

other words, the no-waiver language applies generally, and the “in any event”

language is a carveout that applies only if the ACC has been put on notice that a

homeowner is seeking to make alterations that require approval under the

applicable restrictions. This is not to say that the analysis or result in Buckner

was incorrect, but only that the statement that the “in any event” deemed

approval language applies even “when the homeowner has not complied with

Article VI by requesting preapproval” was unnecessary and not applicable to the

facts before the court in that case.    Therefore, we now limit the holding in

Buckner to apply only to scenarios in which a property owner subject to

restrictions that contain substantially similar “in any event” language seeks

      2
         Courts in other states have come to the same conclusion. See Bramlett v.
Dauphin Island Prop. Owners Ass’n, 565 So.2d 216, 218 (Ala. 1990); Carriage
Hills Golf and Country Club, Inc. v. Hertz, 305 So.2d 287, 288–89 (Fla. Dist. Ct.
App. 1974); Emonet v. Tomlinson, 163 So.2d 382, 384–85 (La. Ct. App.), writ
ref’d, 246 La. 591 (1964); Keller v. Branton, 667 P.2d 650, 652–53 (Wyo. 1983).
But see Garden Quarter I Ass’n v. Thoren, 394 N.E.2d 878, 880–81 (Ill. 1979);
Aurora Shores Homeowners Ass’n v. Hardy, 37 Ohio App. 3d 169, 69–70 (Ohio
Ct. App. 1987). The Illinois and Ohio cases do not say whether the restrictive
covenants in those cases contained saving “no waiver” language as did the
restrictive covenants here.


                                       12
preapproval from the ACC as required by the restrictions and nevertheless

completes the construction without the ACC’s approval before the ACC files a

suit to enjoin the construction.3

      Here, unlike in Buckner, the Campbells never sought the ACC’s approval

before commencing construction of the shed, cabana, and RV shelter. Only after

construction was completed, and after the ACC sent a letter demanding removal

of the three structures, did the Campbells seek a variance. Thus, the “in any

event” language was never triggered in this case, and the ACC was not required

to file suit to enjoin the Campbells’ construction before that construction was

completed.

      Accordingly, we conclude and hold that the trial court erred by granting the

Campbells’ summary judgment. We sustain the Leakes’ first issue in part.

          Propriety of Denial of Leakes’ Motion for Summary Judgment

      The Leakes also contend in their first issue that the trial court erred by

denying their traditional and no-evidence motions for summary judgment.

      In their traditional motion for summary judgment, the Leakes claim that

they conclusively proved that the RV shelter, cabana, and shed violate the

restrictive covenants. Specifically, they argue that the RV shelter is a private

carport facing the street in violation of article 1, section 3 of the restrictions, that

      3
      We also note that Buckner did not involve a scenario in which construction
was begun or completed in a clandestine manner or in which construction was
capable of completion within a day or a few hours. See Riordan v. Hale, 212
S.E.2d 65, 67–68 (Va. 1975).


                                          13
the cabana covering the spa and the Tuff Shed are not “reasonable outbuildings

for single family use” as allowed by article 1, section 3, and that the cabana and

shed were preassembled off-site and moved onto the property in violation of

article 1, section 4 of the restrictions. In addition, they also claim that the Tuff

Shed violates article 1, section 9’s prohibition against roofs having asphalt

composition shingles.4

      The Leakes contend that the shed, cabana, and RV shelter violate article

1, section 3 of the covenants, which provide as follows:

      No structure shall be erected, altered, placed or permitted to remain
      on any lot carved from the above described property other than one
      single family dwelling not to exceed (except by Architectural Control
      Committee approval) two stories in height, private attached or
      detached garage or carport for not more than four (4) cars facing a
      direction other than the street, and reasonable outbuildings for single
      family use.

According to the Leakes, the shed and cabana are not “reasonable outbuildings,”

and the RV shelter is an impermissible carport or garage facing the street. The

Leakes did attach a photograph to their motion for summary judgment, which

appears to be of the side of the RV shelter and which appears to show that it is

partially enclosed about halfway down the sides and that at least part of the

structure is open to the street; the shelter, however, according to the Leakes’

own summary judgment evidence is on the back quarter of the Campbells’


      4
         The Leakes did not move for summary judgment on the ground that the
structures were in violation of paragraph 2 of the Right to Enforce section of the
restrictive covenants.


                                        14
property, is separated from the street by a private driveway and is further

separated from the driveway by an open metal fence.

      The Leakes did not present any evidence that a storage shed or cabana

would not be a “reasonable outbuilding[] for single family use.”       Black’s Law

Dictionary defines an outbuilding as “[a] detached building (such as a shed or

garage) within the grounds of a main building.” Black’s Law Dictionary 1211 (9th

ed. 2009). The Leakes attached to their motion a drawing showing that the shed

and cabana are located directly behind the residence such that it is unlikely that

they are visible from the majority of the street frontage. But they did not provide

any photographs of the shed or cabana, and, thus, no evidence that their size is

inherently unreasonable; neither did they bring forward any evidence that those

buildings would be used for any purpose other than “single family use.”

Furthermore, they have not provided any evidence that use of a cabana to cover

a spa or a shed for storing personal belongings is a per se unreasonable use for

a residence.

      As to the RV shelter, the restrictive covenants provide that any detached

garage or carport must not face the street. Article 1, section 17 of the restrictive

covenants provides that a “motor home or any recreational vehicle . . . . must be

stored or parked in a fenced or enclosed area in the back 1/4 of the property or

the garage as space will allow.” Thus, the restrictions allow a homeowner to

place a “fenced or enclosed area” separate from a garage on the back one-fourth

of the homeowner’s property for the purposes of parking a recreational vehicle.


                                        15
Article 1, section 17 does not contain the same prohibition on facing the street as

to the “fenced or enclosed area” used for parking an RV as it does for a detached

garage or carport.      Thus, although the Leakes do not specifically state their

argument this way, they must be contending that because the shelter more

resembles a carport than a “fenced or enclosed area,” it is subject to the

restriction that it not face the street.

       The restrictive covenants do not define “enclosed area.”        Black’s Law

Dictionary defines an “enclosure” as “[l]and surrounded by some visible

obstruction” or “[a]n artificial fence around one’s estate.” Black’s Law Dictionary

607 (9th ed. 2009). It defines “enclose” as “[t]o surround or encompass; to fence

or hem in on all sides.” Id. Webster’s Dictionary defines “enclosure” as “the act

or action of enclosing: the quality or state of being enclosed; something that

encloses; something enclosed.” City of Alamo Heights v. Boyar, 158 S.W.3d

545, 551 (Tex. App.––San Antonio 2005, no pet.) (quoting Webster’s Ninth New

Collegiate Dictionary 409 (9th ed. 1991)). It further defines “enclose” as “to close

in: surround; to fence off (common land) for individual use; to hold in: confine.”

Id.

       In Boyar, the San Antonio Court of Appeals held that homeowners who

erected screens over the top and sides of their backyard sufficiently enclosed the

backyard so that the screens could be considered an “enclosure” for city

ordinance purposes even though wind, rain, and sunlight could still enter their

yard. 158 S.W.3d at 548 & n.1, 551–52. However, in a criminal case construing


                                           16
the meaning of “enclosed area” for purposes of the burglary statute, the court of

criminal appeals held that a structure made of concrete blocks with three

doorways that were incapable of being closed was not an “enclosed area.” See

Day v. State, 534 S.W.2d 681, 684–85 (Tex. Crim. App. 1976) (“To hold that a

structure of the design shown here is a building within the definition in Sec.

30.01, . . . would expand the scope of structures which may be the object of

burglary to include open air stages with three walls and a roof, or open carports

with walls on both sides but none on the ends, or even four-columned pavilions

with no walls. The structure here is no more an enclosed structure than the

examples just listed.”); see also Hudson v. State, 737 S.W.2d 838, 839–40 (Tex.

App.––Dallas 1987, pet. ref’d) (holding that open walkway between two buildings

was not enclosed area for purposes of solicitation of a minor statute).

      Here, like the building in Day, the RV shelter appears to be designed for

the purpose of protecting the RV from the elements rather than enclosing it so

that it is not readily visible from the street. See Day, 534 S.W.2d at 684–85.

Thus, we conclude and hold that it is not an “enclosed area” for purposes of

article 1, section 17. Accordingly, we conclude and hold that the shelter is more

in the nature of a detached carport, which according to article 1, section 3, may

not face the street. The Campbells did not present any evidence contraverting

the Leakes’ evidence that the RV shelter faces the street. We therefore further

conclude and hold that the Leakes proved that the RV shelter violates the

restrictive covenants as a matter of law. However, as we discuss below, the


                                        17
Leakes were not entitled to the injunctive relief they sought in their motion for

summary judgment because the Campbells brought forward evidence to defeat

the Leakes’ no-evidence summary judgment on their affirmative defenses.

      As evidence that the cabana and shed violate article 1, section 4, the

Leakes presented a letter from the ACC to the Campbells objecting to the

cabana and shed because they were moved onto the property. However, the

Campbells presented affidavit evidence that the cabana and shed were both

assembled and installed on the property. Accordingly, we conclude and hold that

there is a fact issue as to whether the cabana and shed violate article 1, section

4 of the restrictive covenants.

      Regarding the shed’s violating article 1, section 9, the Leakes presented

no evidence that the roof of the shed is composed of asphalt composition

shingles.   Accordingly, we conclude and hold that they were not entitled to

summary judgment that the shed violates article 1, section 9.

      The Leakes also claim that the Campbells failed to raise any evidence in

support of their affirmative defenses of waiver and violation of section 202.004(a)

of the property code. However, the Campbells responded with affidavit evidence

from Therman that at least four other homes in the subdivision, which consists of

only fifteen homes and two streets, have garages or carports facing the street.

Article 1, section 3 does not state that a garage or carport may not face the street

unless the ACC first gives its approval; thus, this is at least some evidence that

the ACC has abandoned enforcement of that particular provision.                See


                                        18
Tanglewood Homes Ass’n v. Henke, 728 S.W.2d 39, 43–44 (Tex. App.––

Houston [1st Dist.] 1978, writ ref’d n.r.e.).

      Additionally, the Campbells presented affidavit evidence from Therman

that when he first approached Scott Leake about the RV shelter, Scott stated, “It

won’t matter, I won’t like it anyway . . . . do what ever you want.” Although there

is no evidence that Scott is a member of the ACC, the ACC did authorize him

and his wife to sue to enforce the restrictive covenants. Therman also averred in

his affidavit that he was never notified of any hearing on the request for a

variance; that no one ever came to inspect the shed, cabana, and RV shelter;

and that no one ever called him to discuss the dimensions or cost of the cabana,

shed, and shelter.     Taken together, this evidence––along with the evidence

above about the other homes with garages and carports facing the street and the

fact that the Leakes have not conclusively proven that the shed or cabana violate

the restrictive covenants––is at least some evidence that the ACC’s decision was

“arbitrary, capricious, or discriminatory.”     See Tex. Prop. Code Ann. §

202.004(a); Whittier Heights Maint. Ass’n v. Colleyville Home Owners’ Rights

Ass’n, No. 02-10-00351-CV, 2011 WL 2185699, at *4 (Tex. App.––Fort Worth

June 2, 2011, no pet.) (mem. op.). We therefore conclude and hold that the trial

court did not err by denying the Leakes’ motion for summary judgment.

                                   Attorney’s Fees

      In their second issue, the Leakes claim that the trial court erred when it

awarded attorney’s fees to the Campbells in the amount of $10,348 plus $305.32


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in costs.   Having determined that the trial court erred by granting summary

judgment for the Campbells, we reverse the award of attorney’s fees and costs.

Although the Leakes also challenge the trial court’s refusal to grant them their

attorney’s fees, we overrule that complaint because we have held that the trial

court did not err by denying their motion for summary judgment. We thus sustain

their second issue in part and overrule it in part.

                                     Conclusion

      Having sustained the Leakes’ first and second issues in part, we reverse

the trial court’s summary judgment and award of attorney’s fees to the Campbells

and remand this case for further proceedings in accordance with this opinion.




                                                      TERRIE LIVINGSTON
                                                      CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GABRIEL, JJ.

GABRIEL, J. concurs without opinion.

DELIVERED: August 31, 2011




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