                           NUMBER 13-17-00691-CV

                              COURT OF APPEALS

                    THIRTEENTH DISTRICT OF TEXAS

                       CORPUS CHRISTI - EDINBURG


DAVID ATKINSON,                                                                  Appellant,

                                              v.

SUNCHASE IV HOMEOWNERS
ASSOCIATION, INC. AND BOARD,                                                    Appellees.


                    On appeal from the 404th District Court
                         of Cameron County, Texas.


                          MEMORANDUM OPINION
  Before Chief Justice Contreras and Justices Hinojosa and Tijerina
              Memorandum Opinion by Justice Tijerina

       Appellant David Atkinson appeals from a final judgment in favor of appellees

Sunchase IV Homeowners Association, Inc. and Board (the Association). By six issues,

Atkinson complains of: (1) the trial court’s failure to conclude that the utilities at Sunchase
IV must “be paid as a common expense”; (2) the jury’s “error in failing to find that repeated,

knowing violations of the Sunchase IV governing documents . . . were breaches of

contract or fiduciary duty”; (3) the “[t]rial court’s failure to rule on limitations on the

Sunchase IV board’s powers to make changes to Sunchase IV common elements”; (4)

the “[t]rial court’s failure to rule . . . as a matter of law that non-property lawsuit settlement

funds cannot be distributed to unit owners and most especially on a formula on Hurricane

Dolly damages negotiated by the Sunchase IV Board”; (5) the granting of attorney’s fees

to the Association; and (6) “[t]he trial court’s failure to find the creation of preferential

parking rights violated the parties’ prior lawsuit settlement agreement.” On February 3,

2020, the Association filed a motion for rehearing, which we deny. However, we withdraw

our memorandum opinion and judgment of December 19, 2019, and we substitute the

following memorandum opinion and accompanying judgment in their place. We affirm in

part and reverse and render in part.

                                         I.      BACKGROUND

       Atkinson owns a condominium unit at Sunchase IV on South Padre Island, Texas.

According to Atkinson, the Association is a duly formed nonprofit corporate entity that

administers the condominium project pursuant to its Declaration and Bylaws. 1 Atkinson

stated in his petition that Hurricane Dolly damaged the Sunchase IV building and his unit

in 2008, which required substantial repairs. Atkinson claimed that the Association

“discriminated” against him in the disbursement of funds intended to repair hurricane

damage. Atkinson accused the Association of “creat[ing] a fraudulent scheme where [the

Association’s] repair obligations [after Hurricane Dolly] were shifted to individual unit


       1   We have summarized Atkinson’s allegations as stated by him in his live pleading.


                                                     2
owners” which “resulted in the situation where unit owners were excluded from the

insurance loss assessments and settlements from related litigation and having to accept

whatever insurance monies [the Association] unilaterally decided to give each unit

owner.” Atkinson alleged that the Association violated its Declaration and Bylaws by

improperly “altering” common elements of the Sunchase IV building including “some

portions in the interiors of individual units” and by failing to properly repair other common

elements of the building. Atkinson claimed that the Association “stole” his electricity by

using his air conditioning unit. In addition, Atkinson stated that the Association

“surreptitiously with the clear intent to defraud . . . made secretive repair attempts” to his

unit “after a common element water pipe located in a common area burst, supposedly, on

November 15 of 2011.” Atkinson further alleged that after the water leak, the Association

allowed maintenance workers to “repeatedly” enter his unit and make inadequate repairs

to his unit which they attempted to “hide.” Atkinson stated that the Association “removed

personal property including family photographs and business documents from [his] unit”

and that most of that property was not returned to him. Finally, Atkinson complained that

the Association violated the terms of a prior settlement agreement by providing

“preferential parking” to certain individuals who have a motorcycle, trailer, or boat.

        Atkinson sued the Association for fraud, civil conspiracy, breach of fiduciary duty,

breach of contract, negligence, gross negligence, conversion, and trespass. A jury trial

was held on Atkinson’s claims. 2 At the end of Atkinson’s case-in-chief, the trial court




        2   The Association filed a motion for partial summary judgment seeking a declaratory judgment
regarding its rights and obligations under the governing documents and under a settlement agreement. The
trial court ruled on the Association’s declaratory judgment cause in its partial summary judgment, and the
jury was not asked to make any determinations regarding the Association’s declaratory judgment cause.


                                                    3
granted a directed verdict in favor of the Association on Atkinson’s claims of negligence,

gross negligence, conversion, and civil conspiracy and allowed the remaining claims of

trespass, breach of contract, breach of fiduciary duty, and fraud to be submitted to the

jury. 3 The jury answered “No” to the following questions: (1) Did the Association “fail to

comply with its fiduciary duty to David Atkinson?”; (2) Did the Association “commit a

trespass against David Atkinson?”; and (3) Did the Association “breach . . . contractual

duties to David Atkinson?” 4 The jury also awarded attorney’s fees to the Association. The

trial court entered a final take-nothing judgment against Atkinson awarding attorney’s fees

to the Association. This appeal followed.

                                      II.      UTILITIES AT SUNCHASE

        By his first issue, Atkinson contends that the trial court erred by failing to conclude

that the utilities at Sunchase must “be paid as a common expense.” Specifically, Atkinson

argues that “[a]ppellees must assess and pay, as common element expenses, the

Sunchase IV central telephone, cable, and WiFi utilities” because those utilities are non-

individually metered; therefore, under the governing documents, those utilities “are

common expenses and Sunchase cannot charge each unit, regardless of unit size, the

same monthly amount for such non individually metered utilities.”5

        Atkinson generally cites the standards of review for legal sufficiency, construction

of contracts, and for the denial of a judgment notwithstanding the verdict. However,


        3   Atkinson did not seek a ruling on his breach of settlement agreement assertion.
        4   The trial court did not submit a question regarding Atkinson’s fraud claim to the jury.
        5 Atkinson further argues that “[t]he trial court abused its discretion in not enjoining such practices.”
Atkinson fails to state when he requested the trial court to enjoin the Association from this practice, and he
does not provide any citation to pertinent authority supporting his claim that he was entitled to such relief
or any legal analysis explaining his assertion. See TEX. R. APP. P. 38.1(i).


                                                        4
although Atkinson cites evidence, he does not state which standard applies to this issue,

and he does not cite to any pertinent authority that supports his first issue. See TEX. R.

APP. P. 38.1(i). In addition, Atkinson does not make any legal argument regarding how

the trial court’s alleged failure to conclude that the utilities at Sunchase must “be paid as

a common expense” was erroneous in any way or how this alleged error, if any, caused

him harm. See id. The requirement that the appellant’s brief contain a clear and concise

argument is not satisfied by merely uttering brief conclusory statements unsupported by

legal citations. Valadez v. Avitia, 238 S.W.3d 843, 845 (Tex. App.—El Paso 2007, no

pet.). “Failure to cite legal authority or provide substantive analysis of the legal issue

presented results in waiver of the complaint.” Id. We are not allowed to perform an

independent review of the record and applicable law to determine whether there was

error. Id. “It is not this [C]ourt’s duty to review the record, research the law, and then

fashion a legal argument for appellant when [it] has failed to do so.” Katy Springs & Mfg.,

Inc. v. Favalora, 476 S.W.3d 579, 607 (Tex. App.—Houston [14th Dist.] 2015, pet.

denied). Accordingly, we conclude that Atkinson has waived this issue. 6 We overrule

Atkinson’s first issue.

               III.     VIOLATIONS OF THE SUNCHASE IV GOVERNING DOCUMENTS

        By his second issue, Atkinson contends that the jury’s verdict denying his breach




         6 In its brief, the Association alleges that Atkinson attempts to challenge the trial court’s partial

summary judgment in favor of the Association, and it points out that Atkinson has failed to provide a record
of that proceeding in this appeal. However, Atkinson does not state in his brief where he requested the trial
court to make the above-stated conclusion, when the trial court refused to do so, or the legal significance
of the trial court’s failure to make a conclusion that the utilities at Sunchase must “be paid as a common
expense.” See TEX. R. APP. P. 38.1(i). In addition, Atkinson denies that there was a summary judgment
granted in this cause. And, he acknowledges that he is not challenging the trial court’s grant of the partial
summary judgment. Therefore, we need not review it as it is not dispositive. See TEX. R. APP. P. 47.1.


                                                      5
of fiduciary duty claim was against the great weight of the evidence. 7 We construe this

issue as challenging the factual sufficiency of the evidence supporting the jury’s finding

that the Association did not breach its fiduciary duty. See Kratz v. Exxon Corp., 890

S.W.2d 899, 901–02 (Tex. App.—El Paso, 1994, no writ) (explaining that a complaint that

the jury’s finding is against the overwhelming weight of the evidence is a factual

sufficiency challenge); see also Spinks v. Brown, 04-08-00877-CV, 2010 WL 381041, at

*1 (Tex. App.—San Antonio Feb. 3, 2010, pet. denied) (mem. op.) (construing the

appellant’s argument that the jury finding was against the great weight and

preponderance of the evidence as a challenge to the factual sufficiency of the evidence

(citing Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406–07 (Tex.1998))).

A.      Standard of Review

        “When a party attacks the factual sufficiency of an adverse finding on an issue on

which [it] has the burden of proof, [it] must demonstrate on appeal that the adverse finding

is against the great weight and preponderance of the evidence.” Dow Chem. Co. v.

Francis, 46 S.W.3d 237, 242 (Tex. 2001) (per curiam). We must consider and weigh all

of the evidence and will only set the verdict aside if the evidence is so weak or if the

finding is so against the great weight and preponderance of the evidence that it is clearly

wrong or unjust. Id. In the context of a jury trial, the sufficiency of the evidence is reviewed




          7 Specifically, Atkinson argues that the jury should have found that the Association breached its

fiduciary duty by (1) “not paying for [his] personal property damages and loss of use damages caused by a
Sunchase IV common element water leak in the Fall of 2011”; (2) “failing to provide mold clearance
certificates to Atkinson”; (3) “paying non-insurance lawsuit settlement monies to individual unit owners on
the basis of purported Hurricane Dolly losses rather than into the condominium’s general fund”; (4) “making
alterations to common elements without owner or mortgage holder consents”; (5) “entering [his] unit without
prior notice and at a time convenient to Atkinson in non-emergency situations”; (6) “not properly paying
Atkinson’s Hurricane Dolly damages”; (7) “billing Atkinson the same telephone, cable, and WiFi amount as
larger units”; (8) and “generally treating Atkinson in a discriminatory fashion.”


                                                    6
in the light of the charge submitted if no objection is made to the charge. Romero v. KPH

Consolidation, Inc., 166 S.W.3d 212, 221 (Tex. 2005); Wal–Mart Stores, Inc. v. Sturges,

52 S.W.3d 711, 715 (Tex. 2001).

       If the evidence at trial “would enable reasonable and fair-minded people to differ

in their conclusions,” we will not substitute our judgment for that of the fact finder. City of

Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). Whether reviewing the legal or factual

sufficiency of the evidence, the jurors are the sole judges of the credibility of the witnesses

and the weight to be given their testimony and may choose to believe some witnesses

and not others. Id. at 819. The amount of evidence necessary to affirm is far less than the

amount necessary to reverse a judgment. GTE Mobilnet of S. Tex. Ltd. P’ship v.

Pascouet, 61 S.W.3d 599, 616 (Tex. App.—Houston [14th Dist.] 2001, pet. denied).

Moreover, this Court is not a factfinder. Maritime Overseas Corp. v. Ellis, 971 S.W.2d

402, 407 (Tex. 1998).

B.     The Charge

       In the jury charge, question number one states: “Did [the Association] fail to comply

with its fiduciary duty to [Atkinson]?” The trial court instructed the jury as follows:

             Because a relationship of trust and confidence existed between
       them, as a homeowner association and member, [the Association owed
       Atkinson] a fiduciary duty. To prove that Sunchase IV Condominiums
       Homeowner’s Association failed to comply with its fiduciary duty David
       Atkinson must show:

       a.     [The Association] did not discharge its duties in good faith; with
              ordinary care; and in a manner [the Association] reasonably believed
              to be in the best interest of the condominium project; and

       b.     [The Association] did not act within the scope of its authority; and

       c.     [The Association] failed to acquire, construct, manage, maintain and
              keep in good order, condition, and repair all of the General Common

                                               7
                 Elements and all items of common personal property used by the
                 owners in the enjoyment of the entire premises, except as such duty
                 may be specifically designated herein to each owner.

       d.        [The Association] failed in general, to carry on the administration of
                 this Association and to do all of those things necessary and
                 reasonable in order to carry out the governing and the operation of
                 the Condominium Project.

The jury answered, “No.”

C.     Discussion

       Although not explicitly stated by Atkinson in his brief, it appears that he specifically

attacks the jury’s failure to find that the Association acted in bad faith and

       failed to acquire, construct, manage, maintain and keep in good order,
       condition, and repair all of the General Common Elements and all items of
       common personal property used by the owners in the enjoyment of the
       entire premises, except as such duty may be specifically designated herein
       to each owner.

       Regarding bad faith, Atkinson argues that “[t]he record is replete with bad faith”

and he provides a laundry list of nineteen examples he asserts show that the Association

acted in bad faith. However, Atkinson has not cited evidence in the record showing that

the Association committed these acts. 8 Moreover, Atkinson does not explain, with citation


       8   Atkinson states:

       The record is replete with bad faith: non-insurance distributions of money to unit owners
       based upon past Hurricane Dolly damages negotiated by the Sunchase board; not billing
       non-individually metered utilities as common expenses; allowing board member Wally
       Jones to have a storage unit on his balcony; sending an attorney letter to Atkinson
       complaining that his blinds were visible from the exterior; removing personal property from
       Atkinson’s unit and never returning it; making repairs to the non-common element interior
       of Atkinson’s unit; failing to maintain the project properly; making unilateral alterations to
       common elements without owner of mortgage holder approval; repeatedly entering
       Atkinson’s unit without notice or at a time convenient to him; not giving studies like
       Hurricane Dolly mold books to any owner including Atkinson; asking Atkinson to backdate
       a document one year; failing to reimburse Atkinson for the electricity and use of his air
       conditioner to dry out Atkinson’s unit from the water damage caused by Sunchase itself in
       November of 2011; replacing insiders’ air conditioners in the Fall of 2008 out of insurance
       money so such insiders were able to move back first while not paying for Atkinson’s air
       conditioner replacement until 2011.


                                                     8
to pertinent authority or legal analysis, how these alleged acts by the Association

constitute bad faith. Therefore, Atkinson has not shown that the jury’s failure to find that

the Association acted in bad faith is against the great weight and preponderance of the

evidence. See Dow Chem. Co., 46 S.W.3d at 242.

       In addition, without an objection to the jury charge, the sufficiency of the evidence

must be viewed in light of the jury charge provided. Romero, 166 S.W.3d at 221; Wal-

Mart Stores, Inc., 52 S.W.3d at 715. Here, the jury charge required that, for Atkinson to

prevail on his breach of fiduciary claim, he prove that the Association failed to act within

the scope of its authority. See Romero, 166 S.W.3d at 221; Wal-Mart Stores, Inc., 52

S.W.3d at 715 (explaining that even though the charge was erroneous, the reviewing

court was required to review the evidence in light of the jury charge given by the trial

court). However, Atkinson does not argue on appeal that he provided evidence to support

such a finding. Again, as previously stated, we do not have a duty to “review the record,

research the law, and then fashion a legal argument for appellant when [it] has failed to

do so.” Katy Springs & Mfg., Inc., 476 S.W.3d at 607. Accordingly, because Atkinson has

not demonstrated on appeal that the adverse finding is against the great weight and

preponderance of the evidence, see Dow Chem. Co., 46 S.W.3d at 242, we overrule his

second issue.

                       IV.    ALTERATIONS TO COMMON ELEMENTS

       By his third issue, Atkinson contends that the trial court erred by “refusing to rule

as a matter of law that [the Association] cannot make alterations to common elements

and their intended uses and purposes without mortgage holder consents as such

consents are required by Sunchase governing documents.” It appears that Atkinson also



                                             9
argues that certain types of alterations could not be made to the common elements

without approval from all the unit owners. 9 The Association replies that its governing

documents grant authority to the Association to make alterations to the common elements

of the building without consent from anyone.

        According to the Association’s Declaration, common elements include, among

other things, gardens, pools, mail rooms, recreational facilities, laundry rooms, parking

spaces, foundations, “common dividing walls between two or more Units or between Units

and Common Elements,” supports, roofs, the grounds, yard, driveways, boiler rooms,

mechanical rooms, and storage areas. The Declaration and bylaws make it clear that the

Association shall “[m]aintain, repair, replace, restore, operate and manage all of the

Common Elements and facilities, improvements, furnishings, equipment and landscaping

thereon, and all property that may be acquired by [the Association] in good condition . . . .”

The Bylaws further clearly state that the powers and duties of the Association shall

include, among other things, “[t]o make repairs, additions, alterations, and improvements

to the Common Elements consistent with managing the Condominium Project in a

manner in keeping with the character and quality of the neighborhood in which it is

located, the best interest of the owners, and the Declarations and these By-Laws”

(emphasis added). There is nothing in the Declaration or Bylaws stating that the

Association is required to obtain permission from the unit owners or their mortgagees



        9 Atkinson states that “[r]eplacing standard glass with hurricane resistant glass would be a good
example of a permissible improvement” while “[c]hanging the theme of a beachfront condominium from an
ocean theme to a tropical theme, as done in Sunchase IV, is not a safety measure.” Atkinson complains
that the Association made alterations to the common elements by changing the color of the paint and states
that the Association’s “most immediate plan is to destroy what was called a snack area and turn it into a
patio area.” According to Atkinson, these types of “alterations” must be approved by all the unit owners and
their mortgagees.


                                                    10
prior to making repairs, additions, or alterations to the common elements.

        Although not stated in his brief, to support his argument, Atkinson appears to rely

on language in the Declaration stating: (1) “Each Unit Owner shall have as an

appurtenance to his Unit, an undivided percentage interest in the Common Elements,

based upon the approximate size of his Unit in relation to the others . . . .”; and (2) the

“Common Interest appurtenant to each Unit is declared to be permanent in character and

cannot be altered once sold by Declarant without the consent of all the Owners of said

Units and the mortgagees of such Owners.” 10 This provision does not state the

Association cannot alter the common elements without the consent of the unit owners

and their mortgagees. Instead, this provision requires consent from all unit owners and

their mortgagees for alteration of any common interest the unit owners have in the

common elements. This provision of the Declaration does not support Atkinson’s

contention that the trial court should have concluded that the Association needed

approval from all the unit owners and their mortgagees to make alterations to the common

elements. Thus, the bylaws explicitly authorize the Association to alter common elements,

and the language quoted above does not conflict with the bylaws. We overrule Atkinson’s

third issue.

                      V.      DISTRIBUTION OF PROCEEDS FROM LITIGATION

        By his fourth issue, Atkinson contends that the trial court “erred” by failing to find

“as a matter of law . . . under both state statutes and Sunchase IV governing documents

that a homeowner’s association board cannot distribute the proceeds from litigation (as



     10 A common interest is defined in the Declaration as “[t]he proportionate undivided interest in the

Common Elements which is appurtenant to each Unit . . . .”


                                                   11
opposed to proceeds from insurance settlements or insurance settlement litigation for

insured disaster damages) to individual unit owners.” Specifically, without citation to the

record, Atkinson asserts that proceeds from a lawsuit that resulted from Hurricane Dolly

were given by the Association directly to the unit owners and not held in trust. 11 According

to Atkinson, this act constituted a breach of contract and “invited unit owners to take the

lawsuit money and then sell their units, leaving the expense of paying for unrepaired

common elements to be borne by future purchasers of units.” Relying on Texas Property

Code § 81.104(c), Atkinson claims that “[a] bank account or any funds are clearly owned,

pro-rata by unit owners.” See TEX. PROP. CODE ANN. § 81.104(c) (“The entire interest in

the condominium regime shall be divided among the apartments.”). He also claims that

the Association violated Texas Penal Code § 32.45(7) by misapplying funds. See TEX.

PENAL CODE ANN. § 32.45 (establishing the offense of misapplication of fiduciary

property).

        Other than the above-stated bare assertions, Atkinson provides no legal analysis

or substantive argument to support this issue. See TEX. R. APP. P. 38.1(i). In addition,

Atkinson provides no background information regarding the Hurricane Dolly lawsuit or

when the funds were allegedly misappropriated. Finally, Atkinson does not state when he

asked the trial court to conclude that the Association misappropriated the Hurricane Dolly

funds or how the trial court’s failure to make such a conclusion caused an improper

judgment. We overrule Atkinson’s fourth issue.




        11 The trial court did not submit a question to the jury regarding the Hurricane Dolly funds, and

Atkinson does not explain how the other questions in the charge relate to those funds.


                                                   12
                                   VI.    ATTORNEY’S FEES

       By his fifth issue, Atkinson contends that the award of attorney’s fees was improper

because the fees were not segregated, and the Association is not entitled to them.

A.     Segregation of Attorney’s Fees

       Error is waived if no one objects to the trial court’s failure to segregate attorney’s

fees as to specific claims. Green Int’l., Inc. v. Solis, 951 S.W.2d 384, 389 (Tex. 1997). In

the trial court, Atkinson did not object to the trial court’s failure to segregate the attorney’s

fees. Therefore, even assuming the trial court erred in failing to require the segregation

of attorney’s fees, error was waived. See id.

B.     Entitlement to Attorney’s Fees

       Atkinson argues that the Association is not entitled to attorney’s fees pursuant to

any of the theories it argued to the trial court. The Association responds that it was entitled

to attorney’s fees pursuant to the Uniform Declaratory Judgment Act (UDJA) and the

property code.

       1.     UDJA

       First, Atkinson contends that the Association is not entitled to the award of

attorney’s fees under the UDJA. Specifically, Atkinson argues that the Association’s

request for declaratory relief was merely a request for a declaration that Atkinson’s claims

lack merit. See Etan Indus., Inc. v. Lehmann, 359 S.W.3d 620, 624 (Tex. 2011) (per

curiam) (concluding that the award of attorney’s fees was improper because “[t]he

declaratory judgment simply duplicated the issues litigated under” the plaintiff’s trespass

claim). The Association responds that it was entitled to attorney’s fees pursuant to the

UDJA because its request for declaratory relief was not merely an improper mirror image



                                               13
of Atkinson’s affirmative claims. BHP Petroleum Co. v. Millard, 800 S.W.2d 838, 841 (Tex.

1990) (orig. proceeding). We agree with Atkinson.

       The UDJA provides that in a proceeding brought pursuant to the act, the trial court

may award reasonable and necessary attorney’s fees that are equitable and just. TEX.

CIV. PRAC. & REM. CODE ANN. § 37.009. The trial court has discretion under the UDJA to

grant or deny an award of attorney’s fees. Transcont’l Ins. Co. v. Crump, 330 S.W.3d 211,

231 (Tex. 2010) (citing Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998)); Schack v.

Prop. Owners Ass’n of Sunset Bay, 555 S.W.3d 339, 360 (Tex. App.—Corpus Christi–

Edinburg 2018, pet. denied).

       Generally, the UDJA is not available to settle disputes that are already pending in

the trial court. BHP Petroleum Co., 800 S.W.2d at 841. “In certain instances, however, a

defensive declaratory judgment may present issues beyond those raised by the plaintiff”

when a counterclaim seeks a true declaration of an ongoing and continuing relationship

and asserts relief having “greater ramifications” than the original suit. Id.

       Atkinson filed suit for breach of contract, breach of fiduciary duty, fraud,

conspiracy, and negligence arising from his ownership of a Sunchase IV condominium

unit, which is governed by the Association’s Declaration and Bylaws. In his original

petition, Atkinson alleged that the Association breached its fiduciary duty and the contract

by failing to comply with the “covenants and bylaws owed to condominium unit owners.”

In response, the Association sought various declarations clarifying its duties and

obligations under the Declaration and Bylaws. The declarations sought by the Association

relate to Atkinson’s claims that it breached its fiduciary duty and breached the contract by

failing to comply with those duties. For example, the Association requested a declaration



                                             14
that it had the authority to make alterations to the common elements without seeking the

consent of the unit owners in defense to Atkinson’s breach of fiduciary duty claim, which

merely mirrors Atkinson’s claims that the Association was required to seek the consent

of the unit owners. In addition, the other declarations requested by the Association were

meant merely to negate Atkinson’s claims, and the Association would not have had a

cause of action independent of Atkinson’s claims on which the Association could have

recovered benefits, compensation or relief, even if Atkinson had abandoned his claims or

failed to establish his claims. 12 See id.; Garden Oaks Maint. Org. v. Chang, 542 S.W.3d

117, 124 (Tex. App.—Houston [14th Dist.] 2017, no pet.) (“To qualify as a claim for

affirmative relief, a defensive pleading must allege that the defendant has a cause of

action, independent of the plaintiff’s claim, on which he could recover benefits,

compensation or relief, even if the plaintiff abandons his cause of action or fails to

establish it.”). Thus, the Association sought a declaratory judgment that depended on

Atkinson’s claims. Accordingly, we conclude that the Association’s counterclaim for

declaratory relief therefore did not state a claim for affirmative relief and was not the




         12 The Association also sought and received declarations that: (1) Texas Property Code § 82.103

does not apply to it; (2) it was entitled to attorney’s fees and costs if it prevailed against Atkinson; (3) it was
authorized to issue special assessments to its unit owners for constructing capital improvements to the
common elements including fixtures and personal property; (4) “[a]ll Unit Owners, including Atkinson,
agreed to pay the special assessments issued by [the Association] for the purpose of constructing capital
improvements or unexpected expenses”; (5) it was authorized to issue special assessments against all unit
owners including Atkinson “to reimburse the Association for costs [the Association] incurs in bringing that
Unit Owner into compliance with the provisions of the Declaration and the By-laws, including actual
attorney’s fees”; (6) the Association’s agents and employees are authorized to enter any unit “without notice
in the event of an emergency for any purpose reasonably related to [the Association’s] performance of its
responsibilities under the Declaration”; (7) the Association’s agents and employees are authorized to enter
any unit “at any reasonable hour after reasonable notice is given for any purpose reasonably related to [the
Association’s] performance of its responsibilities under the Declaration”; (8) a settlement agreement
entered by the Association and Atkinson did not prohibit the Association from allowing employees to park
in the garage and allowing garbage containers or to take measures to prevent the general public from
parking within the parking lot.


                                                       15
proper subject of a declaratory judgment. BHP Petroleum Co., 800 S.W.2d at 841. Thus,

the trial court abused its discretion in awarding attorney’s fees pursuant to the UDJA.

       2.     Property Code

       Next, Atkinson argues that, contrary to the Association’s argument, the Association

was not entitled to attorney’s fees pursuant to the property code. In the trial court, the

Association argued that if Atkinson did not prevail on his claims, it was automatically

entitled to attorney’s fees pursuant to § 82.161 of the property code. See TEX. PROP. CODE

ANN. § 82.161. The trial court agreed with the Association.

       Section 82.161of the Texas Property Code, provides:

       (a)    If a declarant or any other person subject to this chapter violates this
              chapter, the declaration, or the bylaws, any person or class of
              persons adversely affected by the violation has a claim for
              appropriate relief.

       (b)    The prevailing party in an action to enforce the declaration, bylaws,
              or rules is entitled to reasonable attorney's fees and costs of litigation
              from the nonprevailing party.

Id.

       “It is well-settled under Texas law that ‘to prevail, a claimant must obtain actual

and meaningful relief, something that materially alters the parties’ legal relationship.’”

Wheelbarger v. Landing Council of Co–Owners, 471 S.W.3d 875, 896 (Tex. App.—

Houston [1st Dist.] 2015, pet. denied) (citing Intercont’l Group P’ship v. KB Home Lone

Star L.P., 295 S.W.3d 650, 652 (Tex. 2009); Farrar v. Hobby, 506 U.S. 103, 109–10

(1992)). In the context of § 82.161, to qualify as the prevailing party, the Association must

have shown that it was adversely affected by a violation of “this chapter, the declaration,

or the bylaws” and that it suffered damages or otherwise obtained affirmative relief from

the trial court. See Wheelbarger, 471 S.W.3d at 896–97 (citing Buttross V., Inc. v. Victoria

                                             16
Square Condo. Homeowners’ Ass’n Inc., No. 03–09–00526–CV, 2010 WL 3271957, at

*3–4 (Tex. App.—Austin Aug. 18, 2010, pet. denied) (mem. op.)).

       Instead, the Association only claims it is entitled to attorney’s fees because the trial

court granted its request for declaratory relief and Atkinson did not prevail on his claims.

However,

       [i]n order for a defendant to qualify as seeking affirmative relief in his
       counterclaim, his pleadings must allege facts which show that he has a
       cause of action, independently of plaintiff’s claim, on which he might
       proceed to recover benefits, compensation, or relief even though [the]
       plaintiff abandons his cause of action or fails to establish it.

Newman Oil Co. v. Alkek, 614 S.W.2d 653, 655 (Tex. App.—Corpus Christi−Edinburg

1981, writ ref’d n.r.e.); see Wheelbarger, 471 S.W.3d at 896–97 (concluding that although

the jury found that Wheelbarger was adversely affected by the council’s failure to comply

with the property code, the bylaws, and declarations, Wheelbarger had not obtained

affirmative relief, and therefore, she was not a prevailing party); Sanchez v. AmeriCredit

Fin. Servs., Inc., 308 S.W.3d 521, 525 (Tex. App.—Dallas 2010, no pet.) (determining

that the declaratory judgment claimant was not the prevailing party and not entitled to

attorney’s fees because he sought declarations only to avoid liability).

       As set out above, the Association only requested declarations to avoid liability from

Atkinson’s causes of action. It did not seek affirmative relief from Atkinson. As such, the

Association was not automatically the prevailing party because it acquired declaratory

relief or because Atkinson failed to prevail on his claims. Instead, the Association did not

seek affirmative relief, and it was not the prevailing party. Therefore, we conclude that the

Association is not entitled to the award of attorney’s fees pursuant to property code

§ 82.161. See Newman Oil Co., 614 S.W.2d at 655; see also Wheelbarger, 471 S.W.3d



                                             17
at 896–97; Sanchez, 308 S.W.3d at 525. Thus, the trial court abused its discretion in

awarding attorney’s fees pursuant to § 82.161 of the property code. See TEX. PROP. CODE

ANN. § 82.161.

        We sustain Atkinson’s fifth issue.

                                      VII.    PREFERENTIAL PARKING

        By his sixth issue, Atkinson contends “[t]he trial court erred in failing to rule as a

matter of law that the admitted creation of preferential parking spaces for permanent

residents and commercial renters violated the parties’ prior litigation agreement.” Atkinson

appears to challenge the trial court’s refusal to grant an injunction enjoining the

Association from allowing preferential parking. 13 This issue is inadequately briefed. See

TEX. R. APP. P. 38.1(i). We overrule it.

                                             VIII.   CONCLUSION

        We reverse the trial court’s judgment as to the award of attorney’s fees, render

judgment denying the Association’s request for such fees, and affirm the trial court’s

judgment in all other respects.


                                                                               JAIME TIJERINA,
                                                                               Justice

Delivered and filed the
30th day of April, 2020.




        13 Atkinson does not state where in the record the trial court failed to rule that the alleged preferential
parking violated the settlement agreement. In his live pleading, Atkinson alleged in one sentence that the
Association breached the settlement agreement by allowing “preferential parking,” but the jury charge does
not have a question regarding Atkinson’s claim for breach of the settlement agreement. In addition, there
is nothing in the record showing that Atkinson requested injunctive relief or that the trial court made a ruling
regarding the preferential parking. Thus, we are unable to determine which ruling, if any, Atkinson
challenges.


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