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Monday, January 20, 2020

Appeals panel sides with property owners' association in drainage dispute


By Scott Holland | Jun 17, 2019

General court 09

BEAUMONT — A Texas appeals panel has upheld a lower court’s ruling in favor of a property owners’ association.

Three homeowner couples independently sued the Grand Lake Estates Property Owners Association (POA), seeking an injunction and alleging trespass and illegal conversion of their properties following a ditch-digging effort on easements on their lots in an attempt to deepen and widen drainage capacity.

A Montgomery County District Court judge granted summary judgment in favor of the association, prompting the homeowners to appeal to the Texas Ninth District Appeals Court. Hollis Horton wrote the opinion issued June 13; Justices Steve McKeithen and Charles Kreger concurred.

On appeal, the homeowners said covenants in their deeds didn’t allow the POA to do the work and that the POA acted arbitrarily or capriciously when choosing to build the ditches. They also said the trial court shouldn’t have construed a liability disclaimer provision in the covenants to allow the association to avoid their lawsuit.

The homeowners argued the permissions granted the POA in the deed covenants “applies to utility easements in the subdivision but not to drainage easements,” Horton wrote. But he quoted the agreement language showing the developer “could enter the lots in the subdivision for the purpose of ‘improving, constructing or maintaining any natural or man-made drainage pattern, area or easement.’ This reservation is not restricted to utility easements.”

Further, the court ruled, the covenants give the developer rights to build extra improvements in the common area, and it construed the definition of common area to including the drainage and utility easements.

Still, the homeowners insisted the covenant language allows preservation of the original drainage infrastructure, not to build anything “altogether new unless that something is a swale or pond in a utility easement.” Horton wrote that this interpretation doesn’t account for an authorization for the “the developer to enter the lots in the subdivision to perform construction in the easements for the purpose of improving drainage. It is undisputed that the POA acquired the developer’s rights, and the homeowners have never claimed the ditches were not built for the purpose of improving drainage patterns in the subdivision.”

Given its finding, the association acted within its rights to build the ditches, the panel said, and it didn’t need to consider a hold harmless provision in the covenant.

Turning to whether the association fulfilled its legal obligations in deciding to build the ditches — regardless of whether it had the right to build them at all — the POA argued the homeowners couldn’t raise that issue on appeal because they failed to do so in their original lawsuit or in their response to the POA’s motion for summary judgment. The panel agreed.

“The Rules of Civil Procedure do not allow the homeowners to raise issues in an appeal from a summary-judgment ruling that they failed to make when they were in the trial court,” Horton wrote. “The Texas Supreme Court has explained that the party opposing a motion for summary judgment must file a response in the trial court that fairly apprises the trial court and the party moving for summary judgment of the issues the party opposing the motion ‘contends should defeat the motion.’”

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