                      COURT OF APPEALS
                       SECOND DISTRICT OF TEXAS
                            FORT WORTH

                           NO. 02-10-00351-CV


WHITTIER HEIGHTS                                  APPELLANTS
MAINTENANCE ASSOCIATION,
INC.; BROUGHTON
MAINTENANCE ASSOCIATION,
INC.; LEYTON GROVE
MAINTENANCE ASSOCIATION,
INC.; AND OLD GROVE
MAINTENANCE ASSOCIATION,
INC.

                                    V.

COLLEYVILLE HOME OWNERS’                            APPELLEE
RIGHTS ASSOCIATION, INC.


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        FROM THE 352ND DISTRICT COURT OF TARRANT COUNTY

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                      MEMORANDUM OPINION1
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    1
     See Tex. R. App. P. 47.4.
                                   I. INTRODUCTION

      This is an interlocutory appeal from a temporary injunction.        Appellee

Colleyville Home Owners’ Rights Association, Inc. (CHORA) sought and obtained

a temporary injunction enjoining Appellants Whittier Heights Maintenance

Association, Inc.; Broughton Maintenance Association, Inc.; Leyton Grove

Maintenance Association, Inc.; and Old Grove Maintenance Association, Inc.

from various actions connected to Appellants’ assessment, collection, and

expenditure of homeowners’ fees on Appellants’ legal fees in defending a lawsuit

against it brought by CHORA.         Appellants perfected this appeal, raising four

issues challenging the temporary injunction. For the reasons set forth below, we

will affirm the trial court’s temporary injunction.

                    II. FACTUAL AND PROCEDURAL BACKGROUND

      CHORA is a Texas nonprofit corporation comprised of homeowners, some

of whom live in each of Appellants’ subdivisions.            Each of Appellants’

subdivisions is subject to a ―Declaration of Covenants, Conditions and

Restrictions,‖ (CCRs) and each of the CCRs includes a section 4.2 that provides

substantially as follows,

      Purpose of Periodic Assessment. The assessments levied by the
      Declarant and/or the Maintenance Association shall be used
      exclusively for the purpose of promoting the recreation, health,
      safety, enjoyment and welfare of the Owners in the use of the
      Addition, as may be provided in the Maintenance Association
      Documents.




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During early 2010, CHORA members in the Whittier Heights and Broughton

subdivisions received notices that they would be assessed homeowners’ fees to

pay for legal fees in the underlying litigation instituted by CHORA. Quarterly

homeowners’ assessments were increased substantially, and the increases were

identified as necessary to fund the CHORA defense budget. CHORA’s counsel

was informed by Appellants’ counsel that Appellants were ready to commence

collection actions on behalf of Appellants concerning any unpaid homeowners’

assessments. CHORA filed an application for injunctive relief to enjoin collection

of assessments to fund Appellants’ legal expenses in the underlying action and

to enjoin collection actions by Appellants to recover assessments from property

owners within each of Appellants’ subdivisions.        The trial court granted a

temporary injunction; Appellants perfected this appeal.

                            III. STANDARD OF REVIEW

      The sole issue presented to a trial court at a temporary injunction hearing

is whether the applicant may preserve the status quo pending trial on the merits.

Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002); Davis v. Huey, 571

S.W.2d 859, 862 (Tex. 1978). Whether to grant or deny a temporary injunction is

within the trial court’s sound discretion. Butnaru, 84 S.W.3d at 204.

      A temporary injunction is an extraordinary remedy and will not issue as a

matter of right. Id. To obtain a temporary injunction, an applicant must plead

and prove (1) a cause of action against the defendant; (2) a probable right to the




                                         3
relief sought; and (3) a probable, imminent, and irreparable injury in the interim.

Id.

      On appeal, we do not review the merits of the underlying case. Davis, 571

S.W.2d at 861. Instead, we determine only whether there has been an abuse of

discretion by the trial court in granting or denying the relief. Id. at 862. In making

this determination, we may not substitute our judgment for that of the trial court

unless its decision was so arbitrary that it exceeded the bounds of

reasonableness. See Butnaru, 84 S.W.3d at 204.

      Abuse of discretion does not exist if the trial court heard conflicting

evidence, and evidence appears in the record that reasonably supports the trial

court’s decision. Davis, 571 S.W.2d at 862; CRC–Evans Pipeline Int’l, Inc. v.

Myers, 927 S.W.2d 259, 262 (Tex. App.—Houston [1st Dist.] 1996, no writ). A

trial court abuses its discretion in granting or denying a temporary injunction

when it misapplies the law to the established facts. See State v. Sw. Bell Tel.

Co., 526 S.W.2d 526, 528 (Tex. 1975). Given the abuse of discretion standard,

we review the evidence submitted to the trial court in the light most favorable to

the court’s ruling, draw all legitimate inferences from the evidence, and defer to

the trial court’s resolution of conflicting evidence. See IAC, Ltd. v. Bell Helicopter

Textron, Inc., 160 S.W.3d 191, 196 (Tex. App.—Fort Worth 2005, no pet.).

                   IV. RECORD SUPPORTS CHORA’S STANDING

      In their first issue, Appellants claim that CHORA lacks standing to bring the

underlying action because it fails to meet the first and third prongs of


                                          4
associational standing set forth in Texas Business Organizations Code section

252.007(b)(1) and (b)(3).2 CHORA responds that it possesses standing pursuant

to section 202.004(b) of the property code, which provides that ―[a] property

owners’ association or other representative designated by an owner of real

property may initiate, defend, or intervene in litigation or an administrative

proceeding affecting the enforcement of a restrictive covenant or the protection,

preservation, or operation of the property covered by the dedicatory instrument.‖

Tex. Prop. Code Ann. § 202.004(b) (Vernon 2007).3

      In the trial court, Appellants filed a ―Motion to Dismiss or in the Alternative

Motion to Abate.‖ This motion alleges that Appellants seek ―a dismissal based

upon Plaintiff’s [CHORA’s] lack of associational standing pursuant to the test

adopted in Tex. Ass’n of Bus. v. Tex. Air Control Bd. & Water Comm’n, 852


      2
       Section 252.007(b) provides,

            (b) A nonprofit association may assert a claim in its name on
      behalf of members of the nonprofit association if:

            (1) one or more of the nonprofit association’s members have
      standing to assert a claim in their own right; [and]

            ....

            (3) neither the claim asserted nor the relief requested requires
      the participation of a member.

Tex. Bus. Org. Code Ann. § 252.007(b)(1), (3) (Vernon 2010).
      3
       CHORA alternatively argues that it meets the requisites of associational
standing.


                                         5
S.W.2d 440, 447 (Tex. 1993), and later codified in chapter 252 of the Texas

Business Organizations Code.‖ The order signed by the trial court denying the

motion indicates that the trial court conducted a hearing on the motion on August

26, 2010 and ruled on the motion ―after considering the evidence submitted by

the parties and the arguments of counsel.‖ No reporter’s record from the August

26, 2010 hearing is before us; only the reporter’s record from the August 19,

2010 temporary injunction hearing is before us.

      At the temporary injunction hearing, numerous exhibits were admitted into

evidence, including the ―Declaration of Covenants, Conditions, and Restrictions‖

for each of Appellants’ subdivisions and correspondence and budgets from

Appellants to their members indicating an increase in assessments to fund

Appellants’ defense of the underlying CHORA litigation.         Additionally, Don

Albrecht testified at the temporary injunction hearing for CHORA.        Albrecht

testified that he is a vice president and board member of CHORA, as well as a

homeowner in one of Appellants’ subdivisions—Whittier Heights.             As a

homeowner in one of Appellants’ subdivisions, Mr. Albrecht had been billed for a

homeowners’ special assessment that was identified as for Iegal fees, and he did

not pay it. Appellants did not put on any evidence at the hearing.

      Standing to sue may be predicated upon either statutory or common law

authority. See, e.g., Williams v. Lara, 52 S.W.3d 171, 178–79 (Tex. 2001). The

common law standing rules apply except when standing is statutorily conferred.

Hunt v. Bass, 664 S.W.2d 323, 324 (Tex. 1984); see also Williams, 52 S.W.3d at


                                        6
178; In re Sullivan, 157 S.W.3d 911, 915–16 (Tex. App.—Houston [14th Dist.]

2005, orig. proceeding) (discussing separate ―statutory standing criteria‖). When

standing is statutorily conferred, the statute itself serves as the proper framework

for a standing analysis. Everett v. TK-Taito, L.L.C., 178 S.W.3d 844, 850–51

(Tex. App.—Fort Worth 2005, no pet.).

      It is clear from the record before us that CHORA possesses standing to

seek a temporary injunction enjoining Appellants’ assessment pursuant to

section 4.2 for Appellants’ legal fees and expenses in the underlying litigation.

The property code specifically authorizes a property owners’ association or other

representative—such as CHORA—designated by an owner of real property to

initiate litigation affecting the enforcement of a restrictive covenant of the

property—like section 4.2—covered by the dedicatory instrument.             See Tex.

Prop. Code Ann. § 202.004(b); accord Hawkins v. Walker, 233 S.W.3d 380, 389

(Tex. App.—Fort Worth 2007, no pet.) (recognizing that property owners’

association and representative designated by owner of real property possess

standing to sue under property code section 202.004(b) but that individual

property owners do not).

      Appellants   nonetheless    contend    that   CHORA     failed   to   establish

associational standing as set forth in the business organizations code.            A

fundamental principle of statutory construction is that a specific statute controls

over a more general one. Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d

887, 901 (Tex. 2000). Indeed, the government code provides that general and


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specific provisions should be construed, if possible, to give effect to both, but

when they cannot be reconciled, the specific provision should prevail. See Tex.

Gov’t Code Ann. § 311.026 (Vernon Supp. 2010); State v. Alley, 137 S.W.3d

866, 868 (Tex. App.—Houston [1st Dist.] 2004), aff’d, 158 S.W.3d 485 (Tex.

2005). Because the record before us establishes CHORA’s standing pursuant to

the more specific requisites of property code section 202.004(b), we need not

address whether in the record before us CHORA also possesses standing under

the more general requirements of the business organizations code. See, e.g.,

Office of Attorney Gen. of Tex. v. Crawford, 322 S.W.3d 858, 861 (Tex. App.—

Houston [1st Dist.] 2010, pet. filed) (explaining specific statutory standing prevails

over more general standing).

      We overrule Appellants’ first issue.

                        V. NO DERIVATIVE ACTION PLEADED

          In their second issue, Appellants argue that CHORA’s lawsuit is a veiled

attempt to pursue a derivative action against Appellants. We have reviewed

CHORA’s pleadings, and we do not see, nor have Appellants pointed to, any

language, paragraphs, or relief sought by CHORA that constitutes a derivative

action.4 We overrule Appellants’ second issue.




      4
       Appellants’ statement that CHORA’s pleadings allege wrongs that
negatively impact the association assets is not specific enough for us to identify
any portion of CHORA’s pleading as asserting a derivative action.


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               VI. JOINDER OF ALL HOMEOWNERS IN ALL OF APPELLANTS’
                            SUBDIVISIONS NOT REQUIRED

      In their third issue, Appellants argue that the trial court erred by failing to

require the joinder of all homeowners in all of Appellants’ subdivisions as

necessary parties prior to issuance of the temporary injunction. To the extent, if

any, that all homeowners in all of Appellants’ subdivisions are necessary parties,

the trial court nonetheless did not err by failing to require their joinder prior to

issuance of the temporary injunction. See Winslow v. Duval Cnty. Ranch Co.,

519 S.W.2d 217, 226 (Tex. Civ. App.—Beaumont 1975, writ ref’d n.r.e.) (holding

that joinder of necessary parties not required prior to issuance of a temporary

injunction because rights which need preservation pending final trial could be lost

before all necessary parties could be found and joined). We overrule Appellants’

third issue.

           VII. CHORA ESTABLISHED RIGHT TO TEMPORARY INJUNCTION

      In their fourth issue, Appellants argue that CHORA did not establish a

probable right to recover on its causes of action and a probable, imminent, and

irreparable injury as required to obtain a temporary injunction. CHORA pleaded

causes of action for a declaratory judgment concerning ―the validity of any given

CCR, any amendment to the CCRs, and any exercise of power pursuant to the

CCRs or other Maintenance Association Documents‖ and that certain exercises

of discretionary authority by Appellants ―are invalid, because they constitute

unreasonable exercises of discretionary authority‖ pursuant to property code



                                         9
section 202.004(a).      CHORA requested a temporary injunction and a

receivership.

      Based on the record before us, viewing all evidence submitted to the trial

court in the light most favorable to the court’s ruling, drawing all legitimate

inferences from the evidence, and deferring to the trial court’s resolution of any

conflicting evidence, we cannot say that the trial court abused its discretion by

granting a temporary injunction.        CHORA presented evidence––through

documents and Albrecht’s testimony––that Appellants, as property owners’

associations, exercised discretionary authority concerning a restrictive covenant,

namely section 4.2, to assess additional homeowners’ fees against some

CHORA members for purposes not authorized by Appellants’ ―Declaration of

Covenants, Conditions and Restrictions.‖ CHORA possesses a statutory cause

of action for an arbitrary, capricious, or discriminatory exercise of discretionary

authority by Appellants, and the evidence shows at least a probable right by

CHORA to the relief it seeks. See Tex. Prop. Code Ann. § 202.004(a); accord

Brooks v. Expo Chem. Co., 576 S.W.2d 369, 370 (Tex. 1979) (explaining that the

merits of the underlying case are not presented for appellate review in an appeal

from an order granting or denying a temporary injunction). In short, the record

before us does not establish that the trial court abused its discretion by

determining that CHORA showed a probable right to recovery on its section

202.004(a) claim. Viewing the record before us under the required deferential

standard of review, it demonstrates that CHORA members had already been


                                        10
subjected to an assessment by Appellants to fund Appellants’ defense of the

litigation instituted by CHORA.    Appellants’ counsel indicated that collection

efforts would commence against all homeowners who did not pay the

assessment. Based on this evidence, we cannot say that the trial court abused

its discretion by determining that CHORA members would suffer probable,

imminent, and irreparable injury if a temporary injunction was not issued. The

trial court acted within its discretion by deciding CHORA was entitled to preserve

the status quo pending trial on the merits.     See Davis, 571 S.W.2d at 862.

Having found that the record before us supports the two temporary injunction

elements challenged by Appellants, we overrule Appellants’ fourth issue.

                                VIII. CONCLUSION

       Having overruled each of Appellants’ issues, we affirm the judgment of the

trial court.



                                                   PER CURIAM

PANEL: WALKER, MCCOY, and GABRIEL, J.J.

DELIVERED: June 2, 2011




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