BEAUMONT – A Polk County couple that was sued by a property association because they allegedly violated a fence restriction received no help from the Ninth Court of Appeals on Thursday.
When Steven and Cynthia Bahr constructed a fence on their property in April 2014, Emerald Bay Property Owners Association sent an email advising that the fence was in violation of deed restrictions and that the couple would have to remove the fence.
Through an attorney, the Bahrs responded by stating that they denied any violation alleged in the association’s letter and that they would continue to defend and “enjoy their property as they saw fit,” along with providing a trespass warning, court records state.
An association lawsuit seeking an injunction soon followed and the Bahrs responded with a counterclaim, which the trial court dismissed in response to the association’s Rule 91a motion, court records show.
Rule 91a allows a party to move to dismiss a cause of action that has no basis in law or fact.
The parties then filed competing motions for summary judgment. After a hearing, the trial court denied the Bahrs’ motion for summary judgment and found in favor of the association.
On appeal, the Bahrs argued the trial court erred by granting the association’s temporary injunction, dismissing their counterclaim and granting summary judgment in favor of the association.
On May 24, the Ninth Court affirmed the trial court’s rulings, opining that the Bahrs failed to present any evidence negating that the association conclusively established the existence of the deed restrictions.
“The Association conclusively established the enforceability of … Deed Restrictions impressed upon the property and that the Bahrs’ construction of a fence was in violation of those restrictions,” the opinion states.
“Therefore, the trial court did not err in granting summary judgment for the Association and in denying the Bahrs’ motion for summary judgment.”
Attorney Cecil Berg represents the Bahrs.
Travis Kitchens Jr. represents Emerald Bay Property Owners.
Appeal case No. 09-16-00325-CV