Tarr v. Lantana Sw. Homeowners' Ass'n, Inc.

Decision Date16 December 2016
Docket NumberNO. 03-14-00714-CV,03-14-00714-CV
PartiesKevin Tarr, Appellant v. Lantana Southwest Homeowners' Association, Inc., Appellee
CourtTexas Court of Appeals



This case involves a dispute between homeowner Kevin Tarr and Lantana Southwest Homeowners' Association, Inc. Tarr challenges the trial court's summary judgment finding that he violated a single-family restrictive covenant in the Declaration of Covenants, Conditions and Restrictions for Lantana Southwest Single Family Properties. For the reasons that follow, we will affirm in part and reverse and remand in part.


Lantana sued Tarr for breach of a single-family restrictive covenant in the Declaration of Covenants by leasing portions of his home to unrelated individuals whom Tarr claims are recovering alcohol and drug addicts. Lantana sought (1) an injunction prohibiting Tarr from leasing a portion of his home for any purpose other than a single-family residence and (2) attorney's fees under Texas Property Code section 5.006. See Tex. Prop. Code § 5.006 ("In an action based on breach of a restrictive covenant pertaining to real property, the court shall allow to a prevailing party who asserted the action reasonable attorney's fees . . . ."). In response, Tarr raised affirmative defenses based on various state and federal disability-protection statutes, including the federal Fair Housing Act ("FFHA"), Texas Fair Housing Act ("TFHA"), federal Americans with Disabilities Act ("ADA"), and federal Rehabilitation Act. See 42 U.S.C. § 3604(f)(1) (FFHA); Tex. Prop. Code § 301.025(a) (TFHA); 42 U.S.C. § 12132 (ADA); 29 U.S.C. § 794 (Rehabilitation Act). He also filed counterclaims based on those statutes. In support of his claims and defenses, Tarr alleged that his tenants were recovering alcohol and drug addicts and argued that his use of his property as a "group home" for such individuals is statutorily protected.

Lantana filed a combined traditional and no-evidence motion for partial summary judgment with respect to his affirmative defenses. The no-evidence motion alleged, in relevant part, that Tarr could produce no evidence that (1) his tenants met the requirements of the disability-protection statutes or (2) that Lantana was subject to the ADA and Rehabilitation Act. The trial court denied the traditional motion for summary judgment but granted the no-evidence motion thereby disposing of Tarr's affirmative defenses.

Lantana filed a second motion for summary judgment against Tarr's counterclaims and on Lantana's claim for breach of contract. In support of the former, Lantana cited the no-evidence summary judgment disposing of Tarr's affirmative defenses and argued that the court had already ruled as a matter of law that Tarr was not entitled to the statutory protections raised in his counterclaims. In support of the latter, it produced evidence that Tarr was leasing his propertyto unrelated tenants in violation of the restrictive covenant. The trial court granted summary judgment in favor of Lantana on Tarr's counterclaims and on Lantana's breach-of-contract claim.

Lantana filed a motion for final summary judgment, in which it sought an injunction and attorney's fees. The trial court granted a third partial summary judgment ordering the injunction. In its final summary judgment, the court incorporated the three partial summary judgments and awarded attorney's fees to Lantana.

Tarr appeals from the final summary judgment and challenges all three partial summary judgments and the award of attorney's fees.


We review a trial court's summary-judgment rulings de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). We take as true all evidence favorable to the nonmovant and indulge every reasonable inference in the nonmovant's favor. Id. When the trial court does not specify the grounds for granting the summary judgment, we must uphold the judgment if any of the grounds asserted in the motion and preserved for appellate review are meritorious. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003).

To prevail on a traditional motion for summary judgment, the moving party must demonstrate that no material fact issue exists and that it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000). Specifically, the moving party must establish each element of her claim as a matter of law or negate an element of the respondent's claim or defense as a matter of law. See M.D. Anderson, 28 S.W.3d at 23.

A movant seeking a no-evidence summary judgment must assert that there is no evidence to support an essential element of the nonmovant's claim on which the nonmovant would have the burden of proof at trial. Tex. R. Civ. P. 166a(i); Hahn v. Love, 321 S.W.3d 517, 523-24 (Tex. App.—Houston [1st Dist.] 2009, pet. denied). Once the motion is filed, the burden shifts to the nonmovant to present evidence raising a genuine issue of material fact as to each of the elements challenged in the motion. Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009). A no-evidence motion should be granted when there is a complete absence of evidence of a vital fact or the evidence offered to prove a vital fact is no more than a mere scintilla. Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). Less than a scintilla of evidence exists when the evidence is "so weak as to do no more than create a mere surmise or suspicion" of a fact. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003) (internal quotations omitted). More than a scintilla of evidence exists when the evidence "rises to a level that would enable reasonable and fair-minded people to differ in their conclusions." Id. (internal quotations omitted).

Finally, we review a trial court's issuance of injunctive relief for an abuse of discretion. Operation Rescue-Nat'l v. Planned Parenthood of Hous. & S.E. Tex., Inc., 975 S.W.2d 546, 560 (Tex. 1998). The test for an abuse of discretion is not whether, in the opinion of the reviewing court, the facts present an appropriate case for the district court's action but "whether the court acted without reference to any guiding rules and principles." Cire v. Cummings, 134 S.W.3d 835, 839 (Tex. 2004) (internal quotations omitted). A court may issue injunctive relief on summary judgment only if the pleadings, depositions, admissions, and affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as amatter of law. Jim Rutherford Invs., Inc. v. Terramar Beach Cmty. Ass'n, 25 S.W.3d 845, 848 (Tex. App.—Houston [14th Dist.] 2000, pet. denied).


I. Applicable statutory framework

The FFHA, TFHA, ADA, and Rehabilitation Act protect persons who are discriminated against because of a handicap or disability. Under the FFHA and TFHA, it is unlawful to discriminate on the basis of a handicap in the sale or rental of a dwelling or to otherwise make a dwelling unavailable to any buyer or renter. See 42 U.S.C. § 3604(f)(1); Tex. Prop. Code § 301.025(a). The ADA and Rehabilitation Act prohibit discrimination based on disability by public entities: The ADA requires that "[n]o qualified individual with a disability, by reason of such disability, be excluded from participation in or denied the benefits of the services, programs, or activities of a public entity or be subjected to discrimination by any such entity." 42 U.S.C. § 12132. The Rehabilitation Act provides that "[n]o otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . . . ." 29 U.S.C. § 794.

Lantana's no-evidence motion for summary judgment against Tarr's affirmative defenses alleged that there was no evidence that (1) Lantana is a public entity and thus subject to the ADA; (2) Lantana receives federal financial assistance and is thus subject to the Rehabilitation Act; and (3) Tarr's tenants (and prospective tenants) are disabled or handicapped as defined under those statutes.

In response, Tarr argued only that his tenants, as recovering drug and alcohol addicts, were disabled or handicapped as defined under those statutes and offered supporting evidence. He did not, however, respond to or produce evidence refuting Lantana's allegations regarding the absence of evidence of the other elements of the ADA and Rehabilitation Act. Because Tarr does not clearly challenge the judgment as to the ADA- or Rehabilitation Act-based affirmative defenses or counterclaims on appeal, we address only his FFHA- and TFHA-based issues. See Tex. R. App. P. 38.1.

Furthermore, we note that the definition of "disability" under the TFHA is nearly identical to that of "handicap" under the FFHA:

"Disability" means a mental or physical impairment that substantially limits at least one major life activity, a record of the impairment, or being regarded as having the impairment. The term does not include current illegal use or addiction to any drug or illegal or federally controlled substance and does not apply to an individual because of an individual's sexual orientation or because that individual is a transvestite.

Tex. Prop. Code § 301.003(6). Because the TFHA "provide[s] rights and remedies substantially equivalent to those granted under federal law," id. § 301.002(3), Texas courts have construed TFHA consistently with FFHA. See, e.g., Chavez v. Aber, 122 F. Supp. 3d 581, 601 (W.D. Tex. 2015); Meadowbriar Home for Children, Inc. v. Gunn, 81 F.3d 521, 531 n.8 (5 th Cir. 1996); Richardson v. SV Almeda I Ltd., No. 01-11-01004-CV, 2013 WL 4680392, at *6 (Tex....

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