











In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-02-00102-CV
______________________________


JOHN F. SIMPSON, Appellant
 
V.
 
AFTON OAKS CIVIC CLUB, INC., ET AL., Appellees


                                              

On Appeal from the 152nd Judicial District Court
Harris County, Texas
Trial Court No. 2000-50887


                                                 



Before Morriss, C.J., Ross and Carter, JJ.
Opinion by Justice Ross


O P I N I O N
          The issue is whether a voluntary property owners' association lawfully amended the
deed restrictions in the subdivision to establish a mandatory property owners' association 
with the right to establish and collect mandatory assessments.  On our first consideration
of this appeal, we dismissed the appeal because the other property owners were
necessary parties to the action and were not joined.  Simpson v. Afton Oaks Civic Club,
Inc., 117 S.W.3d 480, 484 (Tex. App.—Texarkana 2003).  The Texas Supreme Court
reversed, noting that Afton Oaks had not complained about the absence of the other
property owners at the trial court level and reasoning that, if the property owners'
association was exposed to multiple suits, that was because of its own inaction, and
therefore remanded the case to this Court to consider the merits of the appeal.  Simpson
v. Afton Oaks Civic Club, Inc., 145 S.W.3d 169 (Tex. 2004).
          John Simpson, a Kettering Oaks homeowner, sought a declaratory judgment that
the petition amending the restrictions was void.  He also asked the court to issue an
injunction prohibiting Afton Oaks from attempting to collect assessments in reliance on that
petition and sought a monetary judgment for assessments wrongfully collected.  The court
rendered a summary judgment in favor of Afton Oaks.  Simpson appeals.
          The initial and dispositive question is whether the subdivision could use the
procedures set out by Tex. Prop. Code Ann. § 204.006 (Vernon Supp. 2004–2005) to
amend the restrictions—when the deeds provided a different, and specific, procedure to
be followed in making such an amendment.   
          The Code provides that, if (1) existing restrictions do not provide for a property
owners' association, and (2) require approval of more than sixty percent of the owners to
modify the original dedicating instrument, then a petition to add to or modify the existing
restrictions for the sole purpose of creating and operating a property owners' association
with mandatory membership, mandatory or special assessments, and equivalent voting
rights for each of the owners is effective (if several other conditions are also met).
          Afton Oaks is confronted with a single, insurmountable problem.  Even assuming
the dedicating instrument does not provide for a property owners' association, its terms
provide that to amend the restrictions requires only a simple majority—not more than sixty
percent.  Thus, the second part of the statute is not satisfied, and it will not support the
petition filed in this case. 
          Afton Oaks suggests that, because a specific window for amendments is set out by
the dedicating document—six months every ten years—the procedures in the Code should
take the place of the procedures set out by the restrictions and allow amendment at any
time as permitted by the Code.  There is no support for this position either in caselaw or
the Code.  In fact, the Code specifically states otherwise.  Section 204.003 provides that,
if the document creating restrictions contains an express designation setting out
procedures to follow in amending or modifying those existing restrictions—the document
prevails over the provisions of the Code.  Tex. Prop. Code Ann. § 204.003 (Vernon Supp.
2004–2005); see Brooks v. Northglen Ass'n, 141 S.W.3d 158, 167 (Tex. 2004).
          There is no suggestion or argument from any source that the procedures used by
Afton Oaks meet the requirements of the restrictions.  Afton Oaks simply dislikes the time
window limiting its options and thus seeks judicial approval to ignore it in favor of a statute
that it finds more palatable.  
          When reviewing a summary judgment, we take as true all evidence favorable to the
nonmovant and indulge every reasonable inference and resolve any doubts in the
nonmovant's favor.  Limestone Prods. Distribution, Inc. v. McNamara, 71 S.W.3d 308, 311
(Tex. 2002); Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999). 
          In this case, the undisputed summary judgment evidence was that the restrictions
provided an express method for amendment and that Afton Oaks did not amend the
restrictions according to that procedure.  Because of our resolution of this issue, we need
not address the validity of the signatures on Afton Oaks' petition to amend the restrictions.
          We reverse the judgment of the trial court and remand this cause for further
proceedings consistent with this opinion.
 
                                                                           Donald R. Ross
                                                                           Justice

Date Submitted:      December 7, 2004
Date Decided:         January 20, 2005

erdie Neville in June and July
1998, and they believed she was not mentally cognizant at that time.  
	Byron Terry was a business partner of Verdie Neville, and he witnessed another will she
signed on April 1, 1998.  He testified that he wanted his name "off that will" because he did not
believe she was competent at that time.  He also testified that he thought Verdie Neville was not
competent to make a will "in July 1998."  Terry, however, took a deed from Verdie Neville, which
she signed on July 1, 1998, that partitioned some property they jointly owned.
	Barbara Skelton, a neighbor, testified that she saw Verdie Neville regularly for the last month
of her life, from June 14 until July 15, that Neville was not coherent all the time and did not have
decision-making ability, and that she believed Verdie Neville did not have the ability to understand
the effect of her actions or the general nature and extent of her property. 
	This clearly constitutes some evidence to support the trial court's determination that Verdie
Neville was not competent when she signed the July 9, 1998 will.  The remaining question is
whether this evidence is overridden by the great weight of the contrary evidence. 
	Charles Neville, Verdie Neville's son, testified that he was a witness to the July 9, 1998 will,
and that on that day his mother was capable of conducting business transactions and was aware of
her property and estate, that she had discussed her assets, met with her bankers, and executed a deed
just before she signed the will. 
	Tonya Qualls, a notary public, testified that Verdie Neville was in her recliner and pretty
much alert on the day she signed the July 9, 1998 will; that Charles Neville did not participate in the
will signing; that Verdie Neville told her attorney, Edwin Buckner, that she wanted Charles Neville
to have everything; and that she was responsive to Qualls' conversation, knew she was making a will,
and understood its effect.  
	Katy Griffin, a college student who witnessed the will, testified that she thought Verdie
Neville knew what she was doing when she signed the will.
	Anna Rickart, a nurse, testified that she sat with Verdie Neville and that Neville was able to
feed herself, was able to talk about what she wanted to eat, and Rickart knew of no reason why
Verdie Neville would not be able to conduct business. 
	Faye Clayton, a retired employee of Guaranty Bank and a friend of Verdie Neville, testified
that she visited with Neville about Neville's accounts in June 1998, and that Neville had no apparent
mental incapacity at that time.
	Sandra Hall, a branch manager of Guaranty Bank, testified that she visited with Verdie
Neville in her office at the bank on June 22, 1998, that at that time Verdie Neville was able to
transact business and carry on an intelligent conversation, and that on July 1, 1998, she and Verdie
Neville discussed changing Neville's will. 
	Don Sewell was a witness to the will.  He testified that he talked with Verdie Neville and that
she was lucid, appeared to have clear thought patterns, and clearly stated that she intended to leave
her entire estate to her son, Charles Neville.  He believed Neville was competent and coherent.  
	Doris Fitts, a friend of Verdie Neville, testified that she visited with her until two days before
Neville's death and that Neville was able during that time to understand her business transactions and
"knew what she was talking about."  
	Sylvia Styles, a sitter hired to stay with Verdie Neville, testified that Neville was able to
converse and specify the foods she wanted to eat, that Neville was "real alert" just before her death,
and that she felt Neville was competent until the time she died. 
	From this recitation of the testimony, it is clear that the evidence is conflicting.  In such a
situation, the trier of fact is entitled to accept or reject any testimony, resolve conflicts in the
testimony, and decide the weight to be given to the testimony.  On this record, we cannot say that
the evidence is factually insufficient to support the trial court's finding or that the trial court's finding
is against the great weight and preponderance of the evidence.
	We affirm the trial court's judgment.

							William J. Cornelius
							Chief Justice

Date Submitted:	January 3, 2002
Date Decided:		January 30, 2002

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