Opinion issued August 30, 2018




                                  In The

                           Court of Appeals
                                  For The

                       First District of Texas
                          ————————————
                         NOs. 01-17-00015-CV &
                             01-17-00448-CV
                         ———————————
       CLAY AMMERMAN AND ERIN AMMERMAN, Appellants
                                    V.
THE RANCHES OF CLEAR CREEK COMMUNITY ASSOCIATION, INC.
AND THE RANCHES OD CLEAR CREEK ARCHITECTURAL REVIEW
                  COMMITTEE, Appellees


                  On Appeal from the 506th District Court
                          Waller County, Texas
            Trial Court Case Nos. 16-01-23529-A & 16-01-23529


                                 OPINION

     Appellants, Clay and Erin Ammerman, sued appellees, the Ranches of Clear

Creek Community Association, Inc., the Ranches of Clear Creek Architectural
Review Committee (collectively, “the Association”), and Johnny and Angela

Wilson, for breach of contract and other causes of action alleging that the

Association and the Wilsons violated applicable restrictive covenants.         The

Wilsons then filed counter-claims against the Ammermans, asserting that the

Ammermans also violated applicable deed restrictions. The trial court rendered

summary judgment in favor of the Association and the Wilsons on all claims.1 On

appeal, the Ammermans argue: (1) the trial court erred in granting summary

judgment dismissing the Ammermans’ claims on statute of limitations grounds

because the Ammermans presented some evidence raising a fact issue regarding

when their cause of action for breach of the Covenants and a declaratory judgment

against the Wilsons and the Association accrued and when they could have

discovered their cause of action; and (2) the trial court erred in granting summary

judgment dismissing their claims on the ground that the Association and the

Wilsons had conclusively proved that they did not violate the relevant restrictive

covenants because they presented some evidence that the Association acted

arbitrarily and capriciously in approving the Wilsons’ building plans; and (3) the

trial court erred in granting summary judgment in favor of the Wilsons on their

claim that the Ammermans breached the restrictive covenants in making changes

1
      The Ammermans’ claims against the Wilsons were addressed in cause number 16-
      01-23529 and resulted in appellate cause number 01-17-00448-CV. The
      Ammermans’ claims against the Association were severed into trial court cause
      number 16-01-23529-A and resulted in appellate cause number 01-17-00015-CV.
                                         2
to the buildings on their own property because the alleged violations were barred

by the statute of limitations.

      We affirm the trial court’s summary judgment dismissing the Ammermans’

claims against both the Wilsons and the Association. We reverse the trial court’s

grant of summary judgment in favor of the Wilsons on their counterclaims against

the Ammermans and remand for further proceedings consistent with this opinion.

                                  Background

      The Ranches of Clear Creek (the Community) is a gated community in

Waller County, Texas. The Declaration of Covenants and Restrictions for the

Ranches of Clear Creek (the Covenants) that were filed with Waller County

require, among other things, in Article VI, section 3, that all improvements or

alterations to improvements must be approved in writing by the Architectural

Review Committee (ARC) after the submission of certain required documentation.

The Covenants further provide that all improvements to property must be made

within the designated predetermined “Building Envelope,” which is defined as

“that certain contiguous and regularly shaped three (3) acre portion of each Lot to

be designated by each Owner and approved by the Residential Review Committee

prior to the commencement of any construction upon any Lot.” Article VI, Section

9 of the Covenants states:

      The Building Envelope of each lot shall be located so that same is as
      far as reasonably possible from the Building Envelope on all other

                                        3
      contiguous Lots. In the event that a Building Envelop has not been
      established on all contiguous tracts then the Building Envelope shall
      be located as follows: (i) in a manner that will maintain the integrity
      of a rural ranch setting; (ii) be set back from any abutting Street a
      minimum of 100 feet; (iii) have a side yard set back a minimum of
      100 feet; and (iv) have a rear yard set back a minimum of 100 fee.
      Once established, the Building Envelope shall not be modified nor
      changed without Residential ARC approval.

The Covenants give the Association’s Architectural Review Committee (the ARC)

“exclusive jurisdiction over all original construction on the Lots.”

      The Covenants also govern the types of structures that may be built. Article

VII, section 3 provides, in part, that “[n]o detached garage or accessory building

shall exceed one story in height without the written consent of the Residential

ARC.” Article VII, section 4 governs garages, driveways, and sidewalks. It

provides:

      Each Single Family Residence must have an attached or detached
      garage for a minimum of two (2) full size automobiles. Each Owner
      shall construct and maintain at his own expense a driveway from the
      garage of his or her residence to the abutting Street, including the
      portion of the driveway in the street easement, and the Owner shall
      repair at his expense any damage to the Street or drainage ditches
      occasioned by connecting the driveway thereto.

Article VII, section 19 addressed requirements of outbuildings:

      No outbuilding or structure shall be permitted outside of the Building
      Envelope without prior written approval of the Residential ARC and
      must be located in such a manner as to be no nearer any street, or
      common area, than the rear of the primary residence. No more than
      three (3) outbuildings or other structures, temporary or permanent,
      will be allowed without approval of the Residential ARC.


                                          4
      The Covenants further state that the purpose of the Association is to, among

other things, “providing for the maintenance and preservation of the Area of

Common Responsibility and the facilities of the Association and architectural

control of the Lots.” The Covenants vested the Association’s Board with rule-

making authority to “exercise business judgment and reasonableness on behalf of

the Association” in adopting, amending, repealing, and enforcing the rules and

regulations necessary to implement the Covenants.

      The Ammermans purchased Lot 28, a 30.6-acre parcel, in May 2006. The

Wilsons purchased lot 29, a 16.8-acre parcel of land, several months later. Lots 28

and 29 are contiguous. Each lot had a predetermined Building Envelope within

which the owner was permitted to construct a residence and other buildings. The

Ammermans began to develop their property, Lot 28, immediately after they

purchased it. In 2007, their barndominium was approved by the ARC with a

changed Building Envelope, and the residence was completed in November of

2008. In June and July 2012, the Ammermans constructed a shed outside of Lot

28’s building envelope and, in January 2014, they added onto their shed outside

Lot 28 in front of their barndominium.

      Subsequently, in 2015, the Wilsons began the process of building their

retirement home on Lot 29, with ARC approval. The Ammermans investigated the

proposed building location and came to believe that the Wilsons residence violated


                                         5
the restrictive covenants governing the Community. Specifically, they alleged, but

have not shown, that the Wilson’s building plan is not within the 2006

predetermined Building Envelope.

A.    The Ammermans’ Suit Against the Association and the Wilsons and
      Request for a Declaratory Judgment and Temporary Injunction

      On January 11, 2016, the Ammermans filed suit against the Association and

the Wilsons. They alleged causes of action for breach of contract and declaratory

judgment, asserting that the Association and the Wilsons had violated Article VI,

Section 9 of the Covenants regarding the location of the building envelope for the

Wilson’s lot. The Ammermans sought a declaratory judgment “regarding the

construction and validity of the Covenants in order to determine the rights, status,

and legal relations of the Ammermans and Defendants.” The Ammermans also

sought a temporary injunction to prevent the Wilsons from building their proposed

residence while litigation proceeded. The Ammermans’ subsequently amended

their petition to add a cause of action against the Association for failing “to comply

with their duties” and “by exercising their discretionary authority in an arbitrary

and capricious manner.”

      The Association and the Wilsons answered, denying all of the Ammermans’

claims and asserting various affirmative defenses, including that the Ammermans’

claims were barred by the statute of limitations.



                                          6
      The trial court held a hearing on the Ammermans’ request for a temporary

injunction. Clay Ammerman testified that he and his wife were among the first

residents to purchase lots in the community, that they had purchased Lot 28

because of its unique location and secluded nature, and that they immediately

began construction of their primary residence. Ammerman acknowledged that he

was aware at the time he purchased his lot of potential locations where his

neighbors, the Wilsons, could build a residence on Lot 29. However, he testified

that their proposed building location, or building envelope, violated the Covenants

because their approved building site was not as far as reasonably possible from his

residence and would affect the resale value of his home. Clay Ammerman also

acknowledged that he had sought and obtained approval to move his own building

envelope when building his home in 2007.

      On February 9, 2016, the trial court denied the request for injunctive relief.

B.    The Wilsons’ April 28, 2016 Counterclaim and the Ammermans’ April
      29, 2016 Amended Petition and Application for Permanent Injunction

      On April 28, 2016, the Wilsons filed a counterclaim against the Ammermans

for breach of contract and for a declaratory judgment, asserting that the

Ammermans had breached the Covenants “by constructing their shed [and by]

constructing a car-port and failing to construct a garage.”2 The Wilsons asked that


2
      The Wilsons referred to the requirements of the Covenants generally in the
      original counterclaim but did not identify the particular provisions by number.
                                          7
the trial court declare their rights with respect the Covenants and find that the

Ammermans had breached them.

         The Ammermans did not file an answer to the Wilsons’ counter-petition.

However, the next day, April 29, 2016, they filed an amended petition and an

application for permanent injunction containing additional information regarding

the parties. The Ammermans continued to assert that the Wilsons and the

Association had violated Article VI, Section 9 of the Covenants, specifically the

part stating that “[t]he Building Envelope of each lot shall be located so that same

is as far as reasonably possible from the Building Envelope on all other contiguous

lots.”

C.       The Association’s and the Wilsons’ May 9, 2016 Joint Motion for
         Summary Judgment

         On May 9, 2016, the Association and the Wilsons filed a joint traditional

motion for summary judgment on the Ammermans’ claim that they had both

breached Article VI, Section 9 of the Covenants. They argued that when the

Ammermans and the Wilsons purchased their lots in 2006, the Wilsons’ lot, Lot

29, “already had a pre-determined Building Envelope that was set by the

[Association] and the developer of the subdivision.” They argued: “Despite the


         Their complaints relate to Article VII, section 4’s requirement that each residence
         have a garage; Article VII, section 19’s requirement that outbuildings be placed
         behind the primary residence; Article VI, section 3’s requirement that an owner
         obtain written approval from the ARC for all improvements; and Article VI,
         section 9’s provisions regarding the building envelope.
                                              8
undisputed fact that the Ammermans were aware of the location of Lot 29’s

Building Envelope in 2006, they have waited nearly a decade and until the eve of

the construction of the Wilsons’ home to file a frivolous suit complaining about

information they have been in possession of since at least May 2006.” They

asserted that the Ammerman’s claims were barred by the statute of limitations.

      In the alternative, the Association and the Wilsons argued in their traditional

motion for summary judgment that the “governing documents give the

[Association] and [ARC] discretion to determine the placement of all Building

Envelopes as well as the placement of structures within the Building Envelopes,”

and thus the Ammermans could not raise a genuine issue of material fact on their

claims that either the Association or the Wilsons had breached Article VI, section 9

of the Covenants.

      The Association and the Wilsons supported this motion for summary

judgment with the affidavit of Jack Owen, the president of the Association and the

custodian of the Association’s records. He averred, in relevant part, that the

Ammermans purchased Lot 28 in May 2006, that the Wilsons purchased Lot 29 in

September 2006, and that “[a]s of January 3, 2016, the Wilsons were given

approval to begin construction of their home.” Owen stated, “When determining

approval for the Wilsons, the [Association] and ARC determined that the Wilsons’




                                         9
Building Envelope is as far as reasonably possible from all other contiguous

owners in the [Community].”

      The Association and the Wilsons also included the transcript from the

temporary injunction hearing as support for the motion for summary judgment.

They cited Clay Ammerman’s testimony that he was aware of the potential

building sites for the Wilsons’ home when he purchased his lot in 2006, his

acknowledgment that the previously proposed building cite for the Wilsons’ home

was “closer to [his] primary residence . . . than the envelope where the Wilsons”

had been approved to build their home in 2016, and that Clay Ammerman was

aware that people had to build within their designated building envelope when he

purchased his lot in 2006.

      The motion for summary judgment was also accompanied by the declaration

of Johnny Wilson, in which he stated that “each individual lot was listed for sale

with a Building Envelope that was predetermined by the HOA [the Association]

and the ARC,” and, thus, when he and his wife purchased their lot in September

2006, “the Building Envelopes for all of the lots, including Lot 29, were already

set. As such, we were not only aware of Lot 29’s Building Envelope, but also our

neighbor’s, Clay and Erin Ammerman’s . . . Building Envelope.” He went on to

state that “one of the reasons we ultimately decided to purchase Lot 29 was

because of the Building Envelope.” He stated that he and his wife had owned Lot


                                       10
29 for nearly ten years before deciding to build a retirement home, and the plans

and specifications for the home that were approved by the Association and ARC

“showed that the home would be located inside of our Building Envelope.” He

stated, “Notably, we have not ever requested that our Building Envelope be

modified or changed and so, it has remained in its original location for ten years.”

      The Association and the Wilsons also presented the trial court with a copy of

the Covenants and other documents governing the Community, a copy of the letter

from the ARC approving the Wilsons’ building plans, and a copy of a letter from

the ARC to the Ammermans explaining its decision to approve the location of the

Wilsons’ home. The letter to the Ammermans stated, in part, “Regarding the ARC

decision to approve the location of the Wilson’s home site on Lot 29 the ARC has

placed considerable effort to address your concerns as well as the effect on the

Wilsons of moving their building envelope as you have suggested.” The ARC

specifically noted that “the Wilsons’ requested home site on Lot 29 is within the

‘as reasonably possible’ distance required by our [Covenants]” and that the original

building site “was closer to the cul-de-sac than the Wilsons have requested, [and]

therefore the building envelope has already been set back.”

      In their response to the motion for summary judgment, the Ammermans

asserted generally that after they became aware of the Wilsons’ building location

in January 2016, they investigated and discovered “that the Wilsons were building


                                         11
their residence in a location different than what was originally platted by the

developer,” referring apparently to the fact that the Wilsons had chosen a site for

their home within their building envelope that was different from the building site

originally noted by the developer. The Ammermans contended, however, that the

Wilsons’ “building envelope was changed and/or modified based on the December

16, 2015 building plans submitted by the Wilsons,” citing the letters from the ARC

approving the Wilsons’ building and explaining its decision to the Ammermans as

evidence to support their contention. The Ammermans did not dispute that a four-

year statute of limitations applied to their claims for breach of contract and

declaratory judgment, but they argued that their limitations period did not begin to

run until January 2016 when they first received notice from the ARC that it had

approved “a new build location in breach of the Covenants[.]” The Ammermans

also asserted that the discovery rule applied to their claims because their injury was

inherently undiscoverable until the Wilsons began to develop their property.

      The Ammermans supported their response with, among other documents, the

affidavit of Clay Ammerman, in which he provided details of the building of his

own residence. He stated, “During the development of our Lot, we were required

by the then existing ARC to incur substantial expenses planting foliage to screen

off our property from the then platted build location on Lot 29.” He further averred

that, based on the details of the Wilsons’ construction, the “recently approved build


                                         12
location renders the foliage we were required to plant useless, as it does not

provide any screening where the Wilsons are now approved to build.” He stated

that the Wilsons’ home would be visible from the entrance to his home and that the

build site “is a mere 100 yards from our property line, resulting in the Wilsons’

newly approved building location being not as far as reasonably possible from our

building envelope.”

D.    The Ammermans’ June 1, 2016 Amended Petition and June 14, 2016
      Motion for Summary Judgment on the Wilsons’ Counterclaim

      On June 1, 2016, while the Association’s and the Wilson’s joint traditional

motion for summary judgment was still pending, and before the trial court ruled on

their original claims regarding Article VI, Section 9 of the Covenants, the

Ammermans filed a second amended petition, asserting new claims for breach of

contract and declaratory judgment against the Association.        In their amended

petition, the Ammermans contended again that the Association and the Wilsons

had breached Article VI, Section 9 of the Covenants, and they added claims that

the Association breached Article II, Sections 1 and 4, Article VI sections 3, and

Article VII, section 3 in connection the approval of the Wilsons’ building site. The

Ammermans asked the trial court to declare their rights with respect to the

additional covenants as well as with respect to Article VI, Section 9 pursuant to the

Declaratory Judgments Act, Texas Civil Practice and Remedies Code section

37.004(a).

                                         13
      The Ammermans also asserted that the Association had violated Property

Code sections 202.004 and 215.009 by approving the Wilson’s building plans.

Section 202.004 provides, in relevant part:

      (a) 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 decides by a preponderance of the evidence that the
      exercise of discretionary authority was arbitrary, capricious, or
      discriminatory.

TEX. PROP. CODE ANN. § 202.004 (West 2014). Likewise, section 215.009 provides

that “[a] property owners’ association may enforce its restrictive covenants . . . by

exercising discretionary authority relating to a restrictive covenant unless a court

has determined by a preponderance of the evidence that the exercise of

discretionary authority was arbitrary, capricious, or discriminatory. . . .”      Id.

§ 215.009 (West 2014).

      On June 14, 2016, the Ammermans filed their own motion for summary

judgment asserting that the Wilsons’ counterclaims were barred by the statute of

limitations and laches. The Wilsons responded, asserting that they had no way to

know that the Ammermans had not complied with the Covenants until Ammerman

testified at the temporary injunction hearing regarding their lack of written

approval by ARC for their improvements and other deviations from the Covenants.




                                         14
E.    The Trial Court’s July 6, 2016 Order on the Association’s and the
      Wilsons’ Traditional Motion for Summary Judgment

      On July 6, 2016, the trial court granted in its entirety the Association’s and

the Wilsons’ joint traditional motion for summary judgment on the Ammermans’

claims that the Wilsons and the Association had breached Article VI, section 9 of

the Covenants. It specifically ruled that the Association and the Wilsons had

established both that the statute of limitations barred the Ammermans’ breach of

contract and declaratory judgment claims and that the Association and the Wilsons

had established as a matter of law that neither had violated Article VI, Section 9 of

the Covenants. The trial court also awarded reasonable and necessary attorneys’

fees to the Wilsons and the Association in an amount to be determined.

F.    The Trial Court’s July 18, 2016 Order on the Ammermans’ Motion for
      Summary Judgment

      On July 18, 2016, the trial court granted the Ammermans’ motion for

summary judgment on the Wilsons’ counterclaims on limitations grounds in part

and denied it in part. The trial court ruled that the Ammermans’ “claim in the

Motion that the statute of limitations has passed on [the Wilsons’] [counter-claims]

for breach of contract on the construction of the Barndominium is hereby

GRANTED.” The trial court denied summary judgment on the Wilsons’ remaining

breach of contract counterclaims, specifically denying the portion of the

Ammermans’ motion arguing that claims involving construction and modification


                                         15
of the equipment building and the declaratory judgment claims were barred by the

statute of limitations. These claims, therefore, continued to go forward.

G.    The Association’s August 10, 2016 Second Traditional Motion for
      Summary Judgment

      On August 10, 2016, the Association filed a second traditional motion for

summary judgment to address the additional claims raised by the Ammermans in

their June 1, 2016 amended petition, before the July 6, 2016 summary judgment

was entered, regarding discovery of the Association’s and the Wilsons’ alleged

breaches of the Covenants, and also regarding the Association’s alleged breach of

Property Code sections 202.004 and 202.009. The Association sought dismissal of

all of the Ammermans’ claims against it, including both the Ammermans’ claims

related to discovery of the Wilsons’ alleged breaches of the Covenants within the

statute of limitations, on which the trial court had already ruled, and the

Ammermans’ new claims under the Property Code.             The Association set out

detailed arguments asserting that it had not breached any provisions of the

Covenants. And it asserted that the Ammermans’ related declaratory judgment

claims failed for the same reasons as their breach of contract claims.

      The Association argued, again, that, as decided by the trial court’s July 6,

2016 summary judgment order, the Ammermans were aware of the location of the

pre-determined Building Envelope on the Wilsons’ property in 2006. Thus, any

complaints that the Association violated Article VI, Section 9 or any other

                                         16
provisions of the Covenants in determining or approving the location of the

Wilson’s Building Envelope were barred by the statute of limitations for breach of

contract. The Association further argued that the discovery rule did not apply

because the summary judgment evidence established that Clay Ammerman was

aware of the Wilsons’ potential building locations in 2006 and that he was aware

that owners could build their home anywhere within the predetermined building

envelope that was designated prior the Ammermans’ and Wilsons’ purchase of

their respective lots in 2006. In the alternative, the Association argued in its

second motion for traditional summary judgment that it did not breach any of the

provisions asserted by the Ammermans in their June 1 amended petition.

      Finally, the Association moved for summary judgment on the Ammermans’

claim that the Association had violated Property Code sections 202.004 and

202.009. It argued that section 215.009 was not applicable in this case. The

Association further argued in its motion for summary judgment that it did not

violate the Property Code by acting arbitrarily or capriciously, in violation of

section 202.004, when it approved the Wilsons’ building plans under Article VI,

Section 9. The Association cited Property Code section 202.004(a), creating a

presumption that a property owners’ association’s exercise of discretion “is

presumed reasonable unless the court decides by a preponderance of the evidence

that the exercise of discretionary authority was arbitrary, capricious, or


                                       17
discriminatory.” See TEX. PROP. CODE ANN. § 202.004(a). The Association argued

that the Ammermans had failed to rebut this presumption.

H.    The Trial Court’s November 21, 2016 Order on the Association’s
      Second Traditional Motion for Summary Judgment

      On November 21, 2016, the trial court granted summary judgment against

the Ammermans and dismissed all their claims against the Association in response

the Association’s second traditional motion for summary judgment.3

I.    The Trial Court’s December 13, 2016 Order Severing the Cases and the
      Association’s December 29 Notice of Appeal in Cause No. 16-01-23529-
      A, Resulting in Appellate Cause No. 01-17-00015-CV

      On December 13, 2016, the trial court severed all of the Ammermans’

claims against the Association into a separate cause of action, stating “that all

claims and causes of action asserted by [the Ammermans] against [the Association]

are hereby severed into a separate cause under a new cause number[,]” namely

cause number 16-01-23529-A.       This severance order, combined with the trial

court’s July 6, 2016 order, granting the Association’s and the Wilsons’ joint

motion for summary judgment, and the November 21, 2016 order, granting the

Association’s second traditional motion for summary judgment, constituted a final

ruling of the trial court with respect to the Association. It left pending only the

Wilsons’ counterclaim for declaratory judgment and breach of the Covenants


3
      The Ammermans do not challenge the trial court’s ruling dismissing their claims
      under Property Code Section 215.009 on appeal.
                                         18
against the Ammermans insofar as the counterclaim regarded later improvements

made to the Ammermans’ property.

      Accordingly, the trial court’s summary judgments in favor of the

Association on the Ammermans’ claims against it became the trial court’s final

judgment with respect to the Association.

      On December 29, 2016, the Ammermans filed a notice of appeal in the

severed case, trial court cause number 16-01-23529-A, resulting in appellate cause

number 01-17-00015-CV. The notice of appeal challenged both the July 6, 2016

order granting the Joint Motion for Summary Judgment and the November 21,

2016 order granting the Association’s second Motion for Summary Judgment, and

it noted that those judgment were made final as to the Association when the claims

against the Association were severed from those of the Wilsons.

J.    The Wilsons’ December 27, 2016 Amended Counterclaim Against the
      Ammermans; the Wilsons’ March 10, 2017 Traditional Motion for
      Summary Judgment on Their Counterclaim; and the Ammermans’
      April 4, 2017 Response

      On December 27, 2016, the Wilsons filed an amended counterclaim

asserting claims for breach of contract and declaratory judgment against the

Ammermans, again based on allegations that the Ammermans breached the

Covenants by failing to get written approval for their improvements, constructing

their shed in a location that violated the restrictions, constructing a car-port, and

failing to construct a garage.

                                         19
      On March 10, 2017, the Wilsons filed a traditional motion for summary

judgment on their counterclaim seeking a declaratory judgment that the

Ammermans had violated Article VI, sections 3 and 9, and Article VII, sections 4

and 19 of the Covenants by failing to include a garage as part of their primary

residence and by building the equipment shed without written ARC approval

outside their building envelope and placing it somewhere besides the rear of the

property. The Wilsons sought reasonable and necessary attorneys’ fees pursuant to

the Declaratory Judgments Act.

      As summary judgment evidence, the Wilsons included a transcript of Clay

Ammerman’s testimony at the temporary injunction hearing. The Wilsons

contended that Clay Ammerman admitted at the hearing that his residence lacked a

two-car garage; that he had built a shed on his property without obtaining written

approval from the Association and that the shed was built in front, rather than

behind, the primary residence; and that the shed is located outside the

Ammermans’ building envelope and was located less the one-hundred feet from

the property line. Specifically, the Wilsons cited Clay Ammerman’s testimony that

his home had a “porte cochere” and his statement, “I don’t need a garage. It is not

visible from any street or common area or adjoining property.” They also point to

Clay Ammerman’s testimony that he got verbal approval to build his shed and his

testimony that he built the shed in the only location that he could have built it,


                                        20
which he acknowledged was not in his rear yard. The Wilsons also provided a

survey showing that the shed is less than 100 feet from the Wilson-Ammerman

property line and thus was placed inside the 100-foot setback required by the

Covenants.

      The Wilsons asserted that all of these conditions constituted violations of the

Covenants, and because Ammerman admitted to the violations, no genuine issues

of material fact existed and the Wilsons were entitled to summary judgment.

      In their Response to the Wilson’s Motion for Summary Judgment on their

counterclaim, filed April 4, 2017, the Ammermans asserted that the evidence,

including Clay Ammermans’ testimony, established that their residence contained

“garage space far larger than the 600 square feet required by the [Covenants]” and

pointed to garage space included on their property as containing “both an [eight

foot] roll-up metal door and a [fourteen foot] set of double cedar plank doors for

larger vehicles.” They also pointed to the fact that their residence included a porte-

cochere that satisfied the Covenant’s requirement that each residence include a

garage. The Ammermans also cited to the fact that they obtained written approval

for the residential building.

      Regarding the Wilsons’ claims that the Ammermans built the shed without

written approval, the Ammermans pointed to e-mail correspondence from

members of the ARC approving the construction of the shed. They argued that, at a


                                         21
minimum, the e-mails raised a fact question regarding whether the Ammermans

obtained proper written approval to build the shed. They also argued that, although

the Covenants generally require that sheds and other storage buildings should be

placed behind the primary residence, the Covenants have a specific condition that

lake-front properties—like the Ammermans’—may not have storage buildings

placed in the rear yard. They also argued that, to the extent their property varied

from the requirements of the Covenants, the e-mails approving the construction of

the shed raised at least a fact question that they were granted a variance by the

Association and, thus, were not in violation of the Covenants.

      In addition to floor plans showing the presence of a garage and a porte-

cochere in the Ammermans’ residence, the Ammermans provided written

documentation and emails showing approval of their building plans and affidavits

of other Community residents who stated that building approvals were done

verbally or by email, as had occurred in the Ammermans’ case.

K.    The Trial Court’s May 16, 2017 Final Judgment and the Wilsons’ June
      14, 2017 Notice of Appeal in Cause Number 16-01-23539, Resulting in
      Appellate Cause Number 01-17-00448-CV

      In an order signed May 16, 2017, the trial court granted the Wilsons’ motion

for summary jdgment, declaring that the Ammermans were in violation of Article

VI, sections 3 and 9, and Article VII, sections 4 and 19 of the Covenants due to

their lack of a garage and the construction of the equipment shed. The trial court


                                        22
awarded the Wilsons reasonable and necessary attorney’s fees, thereby disposing

of all of the Wilsons’ remaining claims against the Ammermans. The trial court’s

May 16, 2017 order in cause number 16-01-23529 thereby became the court’s final

judgment on all of the Wilsons’ claims against the Ammermans and all of the

Ammermans’ claims against the Wilsons.

      On June 14, 2017, the Ammermans filed a Notice of Appeal against the

Wilsons, resulting in appellate cause number 01-17-00448-CV. In this notice of

appeal, the Ammermans again listed the trial court’s November 21, 2016 order

granting the Association’s second motion for summary judgment, which was also

included in the then-pending appeal in appellate cause number 01-17-00015-CV,

and they listed the trial court’s May 16, 2017 final order granting the Wilsons’

motion for summary judgment on their declaratory judgment counter-claim against

the Ammermans.

               Summary Judgment on the Ammermans’ Claims

      In their first and second issues, the Ammermans argue that (1) the trial court

erred in granting summary judgment dismissing their claims on statute of

limitations grounds because they presented some evidence raising a fact issue

regarding when their cause of action for breach of the Covenants and for a

declaratory judgment against the Wilsons and the Association accrued and when

they could have discovered their cause of action; and (2) the trial court erred in


                                        23
granting summary judgment dismissing their claims on the ground that the

Association and the Wilsons had conclusively proved that they did not violate the

relevant restrictive covenants because they presented some evidence that the

Association acted arbitrarily and capriciously in approving the Wilsons’ building

plans. We address these issues together.

A.    Standard of Review

      We review summary judgments de novo. City of Richardson v. Oncor Elec.

Delivery Co., 539 S.W.3d 252, 258 (Tex. 2018). The movant must show that no

genuine issue of material fact exists and that the trial court should grant judgment

as a matter of law. TEX. R. CIV. P. 166a(c); Oncor Elec., 539 S.W.3d at 258–59. A

defendant is entitled to a traditional summary judgment if the defendant

conclusively negates at least one essential element of each cause of action or

conclusively proves all elements of an affirmative defense. KCM Fin. LLC v.

Bradshaw, 457 S.W.3d 70, 79 (Tex. 2015). If the movant meets its burden, the

burden then shifts to the nonmovant to raise a genuine issue of material fact to

preclude summary judgment. Katy Venture, Ltd. v. Cremona Bistro Corp., 469

S.W.3d 160, 163 (Tex. 2015) (per curiam); see also First United Pentecostal

Church of Beaumont v. Parker, 514 S.W.3d 214, 220 (Tex. 2017) (stating that fact

question exists if evidence rises to level that would enable reasonable and fair-

minded people differ in their conclusions).


                                           24
      In reviewing the grounds for 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. Sommers for Ala. & Dunlavy, Ltd. v.

Sandcastle Homes, Inc., 521 S.W.3d 749, 754 (Tex. 2017). Here, because the trial

court granted the challenged motions for summary judgment in their entirety, we

must affirm a summary judgment if it is correct on any of the grounds asserted in

the motions. See Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216

(Tex. 2003).

      Here, the Wilsons and the Association sought summary judgment on claims

alleging breach of the Covenants. “[A]ny person entitled to benefit under the terms

of a restrictive covenant may enforce it.” Moseley v. Arnold, 486 S.W.3d 656, 662

(Tex. App.—Texarkana 2016, no pet.) (quoting Girsh v. St. John, 218 S.W.3d 921,

923 (Tex. App.—Beaumont 2007, no pet.); see also Oyoque v. Henning, No. 09-

17-00018-CV, 2018 WL 1527892, at *3 (Tex. App.—Beaumont Mar. 29, 2018, no

pet.) (mem. op.) (discussing standing to sue for violation of restrictive covenants).

Restrictive covenants are construed using the general rules of contract

construction. Moseley, 486 S.W.3d at 662 (citing Pilarcik v. Emmons, 966 S.W.2d

474, 478 (Tex. 1998)). “Courts must examine the covenants as a whole in light of

the circumstances present when the parties entered the agreement.” Pilarcik, 966

S.W.2d at 478 (citing Grain Dealers Mut. Ins Co. v. McKee, 943 S.W.2d 455, 458


                                         25
(Tex. 1997)); see Columbia Gas Transmission Corp. v. New Ulm Gas, Ltd., 940

S.W.2d 587, 589 (Tex. 1996). Restrictive covenants are “unambiguous as a matter

of law if [they] can be given a definite or certain legal meaning.” Pilarcik, 966

S.W.2d at 478 (quoting Grain Dealers, 943 S.W.2d at 458).

B.    Statute of Limitations

      The Association and the Wilsons sought summary judgment in part on the

ground that the Ammermans’ suit was barred by the statute of limitations. The

statute of limitations is an affirmative defense. TEX. R. CIV. P. 94. A defendant

seeking summary judgment on the basis of an affirmative defense, such as

limitations, bears the burden to conclusively establish that defense, including the

accrual date of the cause of action. Diversicare Gen. Partner, Inc. v. Rubio, 185

S.W.3d 842, 846 (Tex. 2005); KPMG Peat Marwick v. Harrison Cty. Hous. Fin.

Corp., 988 S.W.2d 746, 748 (Tex. 1999). When a cause of action accrues is a

question of law. Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 567

(Tex. 2011). If the summary judgment movant establishes that the statute of

limitations bars the action, the nonmovant must adduce proof raising a fact issue in

avoidance of the statute of limitations. KPMG Peat Marwick, 988 S.W.2d at 748.

      Breach of contract claims are subject to a four-year statute of limitations.

See Exxon Corp. v. Emerald Oil & Gas Co., 348 S.W.3d 194, 203 (Tex. 2011).

Because a declaratory judgment action is a procedural device used to determine


                                        26
substantive rights, we must look to the legal remedy underlying the cause of action

to determine the applicable limitations period. Nw. Austin Mun. Util. Dist. No. 1 v.

City of Austin, 274 S.W.3d 820, 836 (Tex. App.—Austin 2008, pet. denied). Here,

the Ammermans sought a declaratory judgment that the Association and the

Wilsons violated the Covenants—the same basis as their breach of contract

claim—and thus the statute of limitations is likewise four years. See id.

      Generally, a cause of action accrues when facts come into existence that

authorize a claimant to seek a judicial remedy, when a wrongful act causes some

legal injury, or whenever one person may sue another. Am. Star Energy &

Minerals Corp. v. Stowers, 457 S.W.3d 427, 430 (Tex. 2015); B. Mahler Interests,

L.P. v. DMAC Constr., Inc., 503 S.W.3d 43, 49 (Tex. App.—Houston [14th Dist.]

2016, no pet.). A breach of contract claim accrues when the contract is breached.

Cosgrove v. Cade, 468 S.W.3d 32, 39 (Tex. 2015); B. Mahler Interests, 503

S.W.3d at 49. A cause of action under the Declaratory Judgment Act accrues when

there is an actual controversy between the parties. In re Estate of Denman, 362

S.W.3d 134, 144 (Tex. App.—San Antonio 2011, no pet.).

      The Ammermans asserted that the discovery rule applies in this case. The

discovery rule defers accrual of a claim until the injured party learned of, or in the

exercise or reasonable diligence should have learned of, the wrongful act causing

the injury. Cosgrove, 468 S.W.3d at 36. The discovery rule is limited to


                                         27
“circumstances where ‘the nature of the injury incurred is inherently

undiscoverable and the evidence of injury is objectively verifiable.’” Id. (quoting

Comput. Assocs. Int’l, Inc. v. Altai, Inc., 918 S.W.2d 453, 456 (Tex. 1996)). An

injury is not inherently undiscoverable when it is the type of injury that could be

discovered through the exercise of reasonable diligence. BP Am. Prod. Co. v.

Marshall, 342 S.W.3d 59, 66 (Tex. 2011).

      It is the discovery of the injury and its general cause, not discovery of the

exact cause in fact, that starts the running of the limitations period. Bayou Bend

Towers Council of Co–Owners v. Manhattan Constr. Co., 866 S.W.2d 740, 743

(Tex. App.—Houston [14th Dist.] 1993, writ denied). “Knowledge of injury

initiates the accrual of the cause of action and triggers the putative claimant’s duty

to exercise reasonable diligence to investigate the problem, even if the claimant

does not know the specific cause of the injury or the full extent of it.” Exxon Corp.,

348 S.W.3d at 209.

C.    Statute of Limitations on the Ammermans’ Claims that the Association
      and the Wilsons Breached the Covenants

      The Association and the Wilsons asserted, in their joint motion for summary

judgment, that the Ammermans’ breach of contract claim arising from the

Wilsons’ and the Association’s alleged breach of Article VI, Section 9 of the

Covenants with regard to the location of the Wilsons’ building envelope was

barred by the statute of limitations. The Association asserted an identical argument

                                         28
in its second motion for summary judgment regarding the amended claims filed

against it by the Ammermans. Thus, they bore the burden of establishing when the

cause of action accrued. See Rubio, 185 S.W.3d at 846.

      The Association and the Wilsons argued that the building envelopes were

established by the Association and the developer prior to the sale of the lots, and

thus the Ammermans knew of the location of the Wilsons’ building envelope at the

time both parties bought their lots in 2006; therefore, the Ammermans’ claims for

breach of Article 6, Section 9 of the Covenants are time-barred.

      The Association and the Wilsons presented Johnny Wilsons’ declaration

indicating that the location of the Wilsons’ building envelope—the three-acre

parcel in which they are permitted to build any improvements to the lot—was set

by the developer in 2006 and that this information was available to the

Ammermans in May 2006 when they selected and purchased their own lot. Wilson

also declared that he and his wife had never sought or obtained a modification of

their building envelope. He declared that the building site approved by the

Association was located within the building envelope set in 2006. The Association

and the Wilsons also presented evidence, in the form of Clay Ammerman’s

testimony at the temporary injunction hearing, that Ammerman was aware of the

Wilsons’ potential building locations and that he also knew that each lot had a

building envelope in which all improvements were to be constructed.


                                        29
      The Ammermans claims against both the Wilsons and the Association all

arise from alleged facts surrounding the Associations’ approval of the Wilsons’

building site. The Ammermans claim that both the Wilsons and the Association

violated Article VI, Section 9 of the Covenants in determining the Wilsons’

building site. Artice VI, Section 9, which has three relevant provisions, states:

      [1] The Building Envelope of each lot shall be located so that same is
      as far as reasonably possible from the Building Envelope on all other
      contiguous Lots. [2] In the event that a Building Envelop has not been
      established on all contiguous tracts then the Building Envelope shall
      be located as follows: (i) in a manner that will maintain the integrity
      of a rural ranch setting; (ii) be set back from any abutting Street a
      minimum of 100 feet; (iii) have a side yard set back a minimum of
      100 feet; and (iv) have a rear yard set back a minimum of 100 fee.
      [3] Once established, the Building Envelope shall not be modified nor
      changed without Residential ARC approval.

Article VI, section 9.     The Ammermans also asserted that the Associations’

approval of the building site violated various other provisions in the Covenants

requiring that the Association enforce the Covenants and maintain “architectural

control of the Lots” (Article II, section 1), that the Associations’ Board make and

enforce such rules and regulations as are necessary to enforce the Covenants

(Article II, section 4), that the ARC properly approve all building plans to meet

certain construction standards (Article VI, section 3 and Article VII, section 3).

      The Wilsons and the Association presented evidence that a building

envelope was established on both Lot 28 and Lot 29 before the Ammermans

purchased Lot 28 and the Wilsons purchased the contiguous Lot 29 in 2006. See

                                          30
Pilarcik, 966 S.W.2d at 478 (“Courts must examine the covenants as a whole in

light of the circumstances present when the parties entered the agreement.”). Thus,

the Association and the Wilsons established that any alleged breach of the

Covenants committed in determining the location of the Wilsons’ building

envelope accrued when the building envelope was designated in 2006 before they

purchased their contiguous lots. See Stowers, 457 S.W.3d at 430 (cause of action

accrues when facts come into existence that authorize claimant to seek judicial

remedy); Cosgrove, 468 S.W.3d at 39 (breach of contract claim accrues when

contract is breached).

      Furthermore, the Association and the Wilsons established that any injury

caused by the allegedly improper location of the Building Envelope as determined

in 2006 was discoverable by the Ammermans in May 2006, when the Ammermans

purchased their lot knowing the location of both their own building envelope and

those of the other contiguous lots. See Marshall, 342 S.W.3d at 66 (holding that

injury is not inherently undiscoverable when it could be discovered through

exercise of reasonable diligence). Likewise, the claim for declaratory judgment

seeking a declaration that the Association and the Wilsons violated the Covenants

in approving the Wilsons’ building envelope accrued in May 2006, when the

Ammermans purchased the lot that gave them an interest in the designation of

other building envelopes designated on nearby lots. See In re Estate of Denman,


                                        31
362 S.W.3d at 144. However, the Ammermans did not file their suit until 2016.

Because the statute of limitations for both the breach of contract claim and

declaratory judgment claim is four years, the Ammermans’ suit was time-barred.

See Exxon Corp., 348 S.W.3d at 203; Nw. Austin Mun. Util. Dist. No. 1, 274

S.W.3d at 836.

      The Ammermans argue that the ARC approved a new building envelope

sometime between 2006 and January 2016 and, thus, the cause of action did not

accrue until January 2016, when the Wilsons marked the construction location for

their home. Alternatively, the Ammermans argue that the discovery rule deferred

accrual of their claim until they could have discovered that the building envelope

had been relocated. See Cosgrove, 468 S.W.3d at 36. The Ammermans further

argue that they raised a fact question regarding whether their cause of action was

discoverable.4

      The Ammermans support their arguments with evidence concerning the

particular location of the Wilsons’ proposed home site, such as portions of the

testimony adduced at the temporary injunction hearing and admitted as part of the

summary judgment record. They also cite the letter from the ARC explaining the


4
      The Ammermans also argue that they were prevented from obtaining discovery
      proving that the building envelope had been moved; however, they did not raise
      this as a ground for error or otherwise provide citations to the record or authorities
      to support their complaint. Thus any complaint of this nature is waived for failure
      to adequately brief it. See TEX. R. APP. P. 38.1(i).
                                            32
reasons for approving the Wilsons’ building site, noting that the current building

location was “already set back” as compared to the previous site. The Ammermans

argue that this was some evidence that the proposed location of the home site was

changed sometime between 2006 and 2016. However, none of this evidence

contradicts the evidence that the parties were aware of possible building locations

in 2006, at the time they purchased their lots. And none of this evidence

contradicts Johnny Wilsons’ declaration that the approved building site was within

the original building envelope. It does not indicate that the three-acre building

envelope moved, nor does it indicate that the Wilsons’ approved building site falls

outside the building envelope established in 2006.

      Critically, the Ammermans’ argument misconstrues Article VI, section 9’s

second provision, which states, “In the event that a Building Envelop has not been

established on all contiguous tracts then the Building Envelope shall be located as

follows: (i) in a manner that will maintain the integrity of a rural ranch setting;

(ii) be set back from any abutting Street a minimum of 100 feet; (iii) have a side

yard set back a minimum of 100 feet; and (iv) have a rear yard set back a minimum

of 100 fee.” Here, the Building Envelope was established when the Ammermans

and the Wilsons purchased their lots; therefore, by its plain language, this

provision is inapplicable to the Ammermans’ claims.




                                        33
      Instead, the third provision in Article VI, Section 9 applies to any changes

made in the original envelope, namely, “Once established, the Building Envelope

shall not be modified nor changed without Residential ARC approval.”             The

Ammermans argue that the Wilsons and the Association improperly modified or

changed the Wilsons’ building envelope that was set in 2006, but they have failed

to present any evidence to support their contention.

      We conclude that the Wilsons and the Association established that they were

entitled to summary judgment on limitations grounds with respect to the

Ammermans’ claims that they violated the Covenants. The Ammermans failed to

raise a genuine issue of material fact regarding when their cause of action for

breach of the Covenants accrued or on the application of the discovery rule.

Accordingly, the grant of summary judgment on this ground was proper.5

      We overrule the Ammermans’ first issue.




5
      Because we affirm the trial court’s grant of summary judgment on limitations
      grounds, we need not address the alternative grounds asserted by the Wilsons and
      the Association in their motions for summary judgment on these claims. See
      Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003).

                                         34
D.    Summary Judgment on the Ammermans’ Claim that the Association
      Violated Property Code section 202.004

      In their second issue, the Ammermans’ claim that the Association’s

construction and application of the Covenants was arbitrary and capricious in

violation of Property Code section 202.004.6

      Section 202.004 provides:

      (a) 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.

      (b) 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.

      (c) A court may assess civil damages for the violation of a restrictive
      covenant in an amount not to exceed $200 for each day of the
      violation.

TEX. PROP. CODE ANN. § 202.004. This statute establishes a cause of action by “a

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

property,” allowing such an entity to “initiate, defend, or intervene” in a suit

affecting the enforcement of a restrictive covenant. See id. § 202.004(b); Sierra
6
      To the extent that the Ammermans’ second issue on appeal also addresses the
      Association’s purported breach of the Covenants, those claims were resolved on
      statute of limitations grounds, as discussed above. The Ammermans do not
      challenge the trial court’s ruling dismissing their claims under Property Code
      section 215.009 on appeal.
                                        35
Crest Homeowners Ass’n, Inc. v. Villalobos, 527 S.W.3d 235, 239 (Tex. App.—El

Paso 2016, no pet.); KBG Invs., LLC v. Greenspoint Property Owners’ Ass’n, Inc.,

478 S.W.3d 111, 119 (Tex. App.—Houston [14th Dist.] 2015, no pet.).

“Subsection (a) ‘creates a rebuttable presumption that a property owners’

association or other representative acts reasonably in exercising its discretionary

authority.’” Villalobos, 527 S.W.3d at 239 (quoting La Ventana Ranch Owners’

Ass’n, Inc. v. Davis, 363 S.W.3d 632, 647 (Tex. App.––Austin 2011, pet. denied)).

      We first observe that nothing in the statutory language of section 202.004

indicates an intent by the legislature to create a cause of action by a homeowner

against a homeowners’ association, such as the one filed by the Ammermans here.

See TEX. PROP. CODE ANN. § 202.004(b); Villalobos, 527 S.W.3d at 239.

Furthermore, in its second motion for summary judgment, the Association argued

that the Ammermans failed to present any evidence rebutting the statutory

presumption created by section 202.004(a) that its exercise of discretion in

approving the building envelope was reasonable.

      The Ammermans argue that they raised a fact question as to whether the

ARC’s decisions allowing changes to the Wilsons’ Building Envelope in violation

of the Covenants were arbitrary and capricious. However, as discussed above, the

Ammermans have presented no evidence that the building envelope was changed.

Johnny Wilson declared that the approved building site is located within the


                                        36
building envelope set by the developer in 2006, and the Ammermans have

provided no controverting evidence.

      We conclude that the Ammermans have failed to present any evidence that

the Association ever approved a change to the Wilsons’ envelope. They likewise

failed to present any evidence rebutting the presumption that any exercise of

discretion by the Association was reasonable. See TEX. PROP. CODE ANN.

§ 202.004(a).

      We overrule the Ammermans’ second issue.

Summary Judgment on the Wilsons’ Counterclaim Against the Ammermans
                  for Violations of the Covenants

      In their third issue, the Ammermans argue that the trial court erred in

granting summary judgment in favor of the Wilsons on their counterclaims for

declaratory judgment, in which the Wilsons asserted that the Ammermans violated

the Covenants.

A.    Review of the November 21, 2016 Order in the Context of the Appeal
      Between the Ammermans and the Wilsons

      As a preliminary matter, the Wilsons argue that the Ammermans’ “notice of

appeal attempts to appeal the November 21, 2016 order,” noting that “the

Ammermans [have] already appealed this order in [the appeal between the

Ammermans and the Association].” The Wilsons also argue that the Ammermans’

notice of appeal filed in appellate cause number 01-17-00448-CV was untimely as


                                      37
to the November 21, 2016 order. The Wilsons misconstrue the procedural posture

of the case.

      The trial court’s November 21, 2016 order granted the Association’s second

traditional motion for summary judgment and dismissed the Ammermans’

remaining claims against the Association. Neither the Association’s second

traditional motion for summary judgment nor the trial court’s November 21, 2016

order granting that motion addressed any claims between the Ammermans and the

Wilsons.

      Subsequently, on December 13, 2016, the trial court severed all of the

Ammermans’ claims against the Association into a separate cause of action,

making the trial court’s orders regarding the claims against the Association final

and appealable. See Harris Cty. Flood Control Dist. v. Adam, 66 S.W.3d 265, 266

(Tex. 2001) (per curiam) (judgment in severed cause that disposed of all claims

between parties to appeal was final and appealable). The Ammermans filed a

timely notice of appeal in the severed case against the Association on December

29, 2016, asserting that they were appealing the trial court’s summary judgment

rulings against them, including in the November 21, 2016 order. See TEX. R. APP.

P. 26.1 (setting out time to file notice of appeal).

      The claims between the Ammermans and the Wilsons remained pending in

the trial court. On May 16, 2017, the trial court granted the Wilsons’ motion for


                                           38
summary judgment, rendering a declaratory judgment in their favor on their

counterclaims against the Ammermans. This finally resolved all claims between

the Ammermans and the Wilsons, and the Ammermans filed their notice of appeal

twenty-nine days later on June 14, 2017. See id. In this notice of appeal, the

Ammermans again listed the trial court’s November 21, 2016 order as an order that

they would be challenging on appeal. The Ammermans then filed an identical brief

in both of their appeals.

      The Wilsons assert that the Ammermans “now attempt to get a second bite at

the apple by briefing the issues of the November 21, 2016 order that have nothing

to do with the Wilsons.” They argue, “Because the claims between the

Ammermans and the Wilsons are not adjudicated in the November 21, 2016 order,

review of that order is improper as the Wilsons are not subject to the November 21,

2016 order.” The Wilsons further argue that “[e]ven if the Ammermans could file a

notice of appeal as to an order related to different parties in a different appeal, the

Ammermans’ notice of appeal as to the November 21, 2016 order was untimely.”

The Wilsons assert that the November 21, 2016 order became final when the trial

court severed the claims against the Association from the claims between the

Ammermans and the Wilsons on December 13, 2016, and they further assert that

the Ammermans’ notice of appeal in the case against the Wilsons was not filed

until June 14, 2017.


                                          39
      We agree that the November 21, 2016 order did not adjudicate any claims

between the Ammermans and the Wilsons. We reviewed the propriety of the trial

court’s November 21, 2016 order in the context of the appeal in cause number 01-

17-00015-CV between the Ammermans and the Association. Furthermore, the

notice of appeal in the 01-17-00015-CV case was timely. The November 21, 2016

order became final on December 13, 2016, and the Ammermans’ notice of appeal

in that case, specifically including the November 21, 2016 order, was timely filed

on December 29, 2016.

      In the context of cause number 01-17-00448-CV, between the Wilsons and

the Ammermans, the November 21, 2016 order is irrelevant because it did not

adjudicate any claims between those parties, and we need not review that order to

resolve any issues between the Ammermans and the Wilsons. Moreover, even if

the Ammermans erred in listing the November 21, 2016 order in their notice of

appeal for cause number 01-17-00448-CV, such an error would not deprive this

Court of jurisdiction to consider the case because the Ammermans nevertheless

filed a timely notice of appeal with the contents necessary to invoke the

jurisdiction of this Court over the claims between the Wilsons and the

Ammermans. See TEX. R. APP. P. 25.1(a) (providing that appeal is perfected when

written notice of appeal is filed with trial court clerk), (b) (providing that filing of

notice of appeal by any party invokes appellate court’s jurisdiction over all parties


                                          40
to trial court’s judgment), (d) (providing that notice of appeal must contain, among

other things, “the date of the judgment or order appealed from”).

       The trial court’s various orders granting summary judgment in favor of the

Wilsons became final on May 16, 2017, when the trial court rendered its order

granting summary judgment in favor of the Wilsons on their counterclaims against

the Ammermans, finally resolving all of the claims between the parties. See

Lehmann v. Har-Con Corp., 39 S.W.3d 191, 200 (Tex. 2001) (“[I]f a court has

dismissed all of the claims in a case but one, an order determining the last claim is

final.”);   Webb      v.    Jorns,     488     S.W.2d      407,     408–09     (Tex.

1972)https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1972133193

&pubNum=0000713&originatingDoc=Id50e0d70199c11e7afe7804507f6db3f&refType=RP&fi=

co_pp_sp_713_409&originationContext=document&transitionType=DocumentItem&contextDa

ta=(sc.Search) - co_pp_sp_713_409 (recognizing that interlocutory order becomes final

for purposes of appeal when it merges into final judgment disposing of whole

case). The Ammermans filed their notice of appeal twenty-nine days later on June

14, 2017. See TEX. R. APP. P. 26.1. The Ammermans’ June 14, 2017 notice of

appeal listed the orders about which they complain on appeal, and, thus, this is not

a case in which a party is seeking review of an order or judgment not listed in the

notice of appeal. See TEX. R. APP. P. 25.1(d) (requiring that notice of appeal

identify order or judgment complained of). Rather, the Ammermans listed an


                                         41
interlocutory order rendered by the trial court earlier in the litigation, but with

respect to a later-severed party. The Wilsons point to no authority, nor could we

find any, indicating that the inclusion in an appellant’s notice of appeal of an order

that would ultimately provide no relief to the appellant deprives an appellate court

of jurisdiction over a timely-filed appeal. Moreover, we note that the matters that

are irrelevant to the claims between the Ammermans and the Wilsons were also

raised and addressed in the timely-filed appeal of the Ammermans’ claims against

the Association.

      Accordingly, we hold that we have appellate jurisdiction to consider the

Ammermans’ third issue complaining that the trial court erred in granting summary

judgment in favor of the Wilsons on their counterclaims for declaratory judgment.

And we overrule the Wilsons’ preliminary argument to the extent they argue that

the Ammermans’ notice of appeal against them was untimely.

B.    Statute of Limitations

      The Ammermans argue, in their third issue, that the statute of limitations

bars the Wilsons’ claims that the Ammermans violated the Covenants. However,

the Ammermans never pleaded the affirmative defense of limitations.

      Statute of limitations is an affirmative defense, and Texas Rule of Civil

Procedure 94 requires a party to plead all affirmative defenses. TEX. R. CIV. P. 94;

Hassell Constr. Co. v. Stature Commercial Co., 162 S.W.3d 664, 667 (Tex.


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App.—Houston [14th Dist.] 2005, no pet.).          Because the Ammermans never

pleaded this affirmative defense, the trial court did not err in failing to dismiss the

counterclaims on this ground. See Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d

492, 494 (Tex. 1991) (generally, summary judgment cannot be granted on

unpleaded affirmative defense unless raised in motion for summary judgment and

opposing party does not object to lack of pleading).

C.    Genuine Issue of Material Fact

      The Ammermans also argue in their third issue that “substantial questions of

material fact persisted” with regard to the Wilsons’ counterclaims, and, thus, “the

granting of summary judgment in this matter was improper.” See Katy Venture,

Ltd., 469 S.W.3d at 163 (holding that if movant meets its summary judgment

burden, nonmovant then bears burden to raise genuine issue of material fact

precluding summary judgment).

      In their motion for traditional summary judgment, the Wilsons argued that

they were entitled as a matter of law to a declaration that the Ammermans violated

the Covenants by building a residence without a garage and by building a shed

outside their building envelope and without proper written approval. They argued

that Clay Ammerman admitted to the violations of the Covenants in his testimony

at the temporary injunction hearing. The trial court ultimately found that the

Ammermans’ breached the Covenants as a matter of law because (1) their primary


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residence lacked a two-car garage; (2) they constructed an equipment shed on Lot

28 without written approval of the ARC; (3) the equipment shed on Lot 28 was not

located behind the primary residence; and (4) the equipment shed on Lot 28 was

located outside the Building Envelope and within the 100-foot setback at the

property line.However, the Ammermans cited other portions of that same record

indicating that the Ammermans believed they had acted within the scope of the

Covenants at all times. For example, Clay Ammerman testified that he had a “porte

cochere” and that he did not need a garage, but he did not affirmatively testify that

his property lacked a garage in violation of the Covenants. The Ammermans also

presented summary judgment evidence that their home had garage space and that

their primary residence was approved by the ARC in writing.

      Regarding the alleged violations for the building of the shed, Clay

Ammerman testified at the temporary injunction hearing that he got verbal

approval to build his shed and that he built the shed in the only location that he

could have built it, which he acknowledged was not in his rear yard.            This

testimony does not constitute an admission that the Ammermans failed to get

written approval, as the Wilsons claim. Furthermore, the Ammermans submitted

summary judgment evidence in the form of emails from ARC members approving

the building of the shed—including its location as being outside the original

Building Envelope, within the 100-foot setback, and not being located behind the


                                         44
primary residence. The Ammermans presented affidavits from other homeowners

averring that the Association’s practice was to provide the required approvals

either verbally or through emails such as those provided to the Ammermans here.

      The Ammermans also pointed to the copies of the Covenants themselves,

which provided exceptions to the general rule that utility buildings must be located

behind the primary residence by stating that lake-front properties—like the

Ammermans’—may not have storage buildings placed in the rear yard. The

Ammermans also argued that, to the extent their property varied from the

requirements of the Covenants, the ARC was authorized to approve construction

that otherwise violated the covenants and that the e-mails approving the

construction of the shed raised at least a fact question that they were granted a

variance by the Association and, thus, were not in violation of the Covenants.

      Thus, although the trial court concluded that the Ammermans were in

violation of the Covenants because their primary residence lacked a two-car

garage, the Ammermans provided more than a scintilla of evidence indicating that

their primary residence contained an appropriate garage or the equivalent of a

garage, in the form of a porte cochere, that was approved by the ARC in writing.

The Ammermans also provided emails raising, at the least, a fact question

regarding whether they had obtained written approval from the ARC to construct

their shed. The e-mails indicated that ARC committee members approved the


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shed—including its location—prior to the Ammermans’ beginning construction.

Furthermore, the Covenants themselves indicated that lake-front properties may

not have storage buildings in the rear yard and that the ARC had authority to

approve building plans even if they varied from the requirements of the Covenants.

      We conclude that the Ammermans presented more than a scintilla of

evidence raising a fact-issue regarding whether their primary residence and shed

violated the Covenants. Accordingly, the trial court erroneously granted summary

judgment on the Wilsons’ counterclaims against the Ammermans. See TEX. R. CIV.

P. 166a(c); Oncor Elec., 539 S.W.3d at 258–59.

      We sustain the Ammermans’ third issue.

                                   Conclusion

      We affirm the judgment of the trial court in appellate cause number 01-17-

00015-CV, dismissing the Ammermans’ claims against the Association. We

further affirm the portion of the trial court’s judgment dismissing the Ammermans’

claims against the Wilsons in appellate cause number 01-17-00448-CV. We

reverse the portion of the trial court’s judgment granting summary judgment on the

Wilsons’ counterclaims against the Ammermans and remand for further

proceedings consistent with this opinion.




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                                            Evelyn V. Keyes
                                            Justice

Panel consists of Justices Keyes, Bland, and Massengale.




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