Tyra Swanson v. Lake Forest Falls, Inc. — Memorandum Opinion by Justice Fonseca

NUMBER 13-26-00061-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
TYRA SWANSON, 	Appellant,
v.
LAKE FOREST FALLS, INC., 	Appellee.
ON APPEAL FROM THE 457TH DISTRICT COURT
OF MONTGOMERY COUNTY, TEXAS
MEMORANDUM OPINION
Before Chief Justice Tijerina and Justices Cron and Fonseca
Memorandum Opinion by Justice Fonseca
In this appeal, appellant Tyra Swanson challenges the trial court’s order dismissing
her suit against appellee Lake Forest Falls, Inc. (LFFI) under Texas Rule of Civil
Procedure 91a. By two issues, Swanson argues the trial court erred by (1) determining
her claims for declaratory judgment had no basis in law or fact, and (2) awarding

2
attorney’s fees to LFFI. We affirm.1
I. 	BACKGROUND
Swanson owns residential property at the Lake Forest Falls subdivision in Conroe,
and LFFI is the homeowner’s association for the subdivision. Swanson alleged in her
original petition that, in 2021, she “began keeping bees on her property to assist in
pollination of her vegetable garden.” She claimed that “[o]n information and belief, at least
five or six other residents” in the subdivision keep bees. Nevertheless, on April 9, 2025,
LFFI’s Deed Restriction Compliance Committee (DRCC) sent a letter to Swanson
“complaining about the location of the bee hives on her property and requesting that she
move them to some other location on her property because the property next to hers is a
pavilion.” The letter stated:
The DRCC has received an inquiry about a possible non-compliance at the
property listed above. The intent of this letter is to gather more information
regarding this matter and make you, the property owner, aware of a possible
deed restriction non-compliance.
Deed Restriction(s): #11 — regarding animals, pets
Description: 1. You have your bee boxes next to the pavilion where
families meet/gather and have food. 2. Your chickens are crossing/on the
street and may be at the pavilion.
Suggested remedy: 1. Move your bee boxes away from the pavilion,
to the other side of your house or even across the street to your other
property. 2. Residents’ animals need to be fenced and kept on their property
so as not to become a nuisance to anyone else.
Inquiries to the DRCC, once confirmed, are reported to the Lake
Forest Falls Board of Directors (Board) at their next meeting. We request
you respond. Discussion is always welcome and a quick explanation usually
leads to a quick resolution. To respond you may do one of the following:
1 This appeal was transferred from the Ninth Court of Appeals in Beaumont pursuant to an order
issued by the Texas Supreme Court. See T EX. G OV ’T C ODE § 73.001. We are required to follow the
precedent of the transferor court to the extent it differs from our own. T EX. R. APP . P. 41.3.

3
• Correct the non-compliance noted above
• Write a letter to the committee/board at the address above
• Email the committee/board . . . .
Your cooperation in taking the necessary action to respond to this
letter within ten (10) days from the date above is appreciated. If you do not
respond to this letter, you may be assessed a fine.
Swanson asserted she received this letter “shortly after [she] and [LFFI] settled a prior
lawsuit concerning certain actions or policies of [LFFI] that [she] believed were illegal.”
However, she acknowledged “[t]he letter did not accuse [her] of violating the deed
restrictions or any other rule or regulation of the subdivision. It merely requested that she
move the bees.”
Without any further action from the DRCC or LFFI, Swanson filed suit. She
attached a copy of the April 9 letter to her petition as well as a copy of the deed restrictions
applicable to the subdivision, which state in part:
11. 	No livestock animals except horses will be allowed to be kept on lots
in LAKE FOREST FALLS SUBDIVISION. One (1) horse per acre may be
kept on lots of one acre or larger. No exotic pets of any kind will be kept on
any lot in LAKE FOREST FALLS SUBDIVISION. Only domestic animals,
normally those animals thought of as household pets shall be permitted on
any lot or tract. Any animal kept on any lot in LAKE FOREST FALLS
SUBDIVISION may not become a nuisance and no animals may be kept,
bred, or maintained for any commercial purpose. Domestic animals must
be fenced or on a leash. Droppings must be retrieved and properly disposed
of by the owner. All animals are subject to the regulations of Montgomery
County relating to restraint of animals, vaccination of animals, and animal
control.
She sought: (1) a declaration that “her keeping of honeybee colonies on her property
does not violate the deed restrictions”; (2) a declaration that Paragraph 11 of the deed

4
restrictions is unenforceable as to her bees because it was equitably abandoned2;
(3) temporary and permanent injunctions prohibiting LFFI from enforcing Paragraph 11
“in such manner as to punish her for keeping honeybees”; and (4) attorney’s fees.
LFFI filed a Rule 91a motion to dismiss arguing “[t]he facts presented are not
accurate and a reasonable person could not infer that [Swanson] has a legal or factual
claim.” Specifically, LFFI argued that there is “no justiciable controversy” and that
Swanson’s declaratory judgment claims “are about the wrong restriction” because its April
9, 2025 letter “was not about restricting bees as pets, but about a dangerous nuisance.”
It conceded that “there are other beekeepers in the community” but explained that it “ha[s]
not asked the other members to move their bees” because Swanson “is the only member
who has placed their bees dangerously close to [LFFI] common property.”3
Swanson filed a response to the Rule 91a motion arguing in part that her “lawsuit
is the quintessential use of the declaratory judgment remedy” because LFFI’s letter
“threatened actions” which “would be illegal.” She cited authority which, she claimed,
shows “Texas law considers honeybees to be an agricultural product, not livestock or
pets.” LFFI filed a reply arguing that “the mere threat of imposing a fine” presents only a
2 In particular, the petition argued “there exists sufficient violations of Paragraph 11 by beekeepers
located in the subdivision for which enforcement has not been sought over such an extended period of time
to show the subdivision has given up its right to enforce this particular restriction as to honeybees.” See,
e.g., McDaniel Homes, LLC v. Meyerland Cmty. Improvement Ass’n, No. 14-22-00854-CV, 2024 WL
2362384, at *3 (Tex. App.—Houston [14th Dist.] May 23, 2024, no pet.) (mem. op.) (“To defeat enforcement
of a restrictive covenant, a party may assert that the restrictive covenant has been abandoned and its
enforcement has been waived.”).
3 As an exhibit to its motion to dismiss, LFFI attached a copy of a June 13, 2025 email sent by
Swanson to the DRCC in which she explained she already moved her bees two feet farther away from the
common area at issue. We do not consider this document in our analysis, however, because it was not
attached as an exhibit to any pleading. See T EX. R. C IV . P. 91a.6; Tex. Gen. Land Off. v. La Concha Condo.
Ass’n, No. 13-19-00357-CV, 2020 WL 2610934, at *3 (Tex. App.—Corpus Christi–Edinburg May 21, 2020,
no pet.) (mem. op.) (declining to consider evidence attached to appellees’ response to appellant’s Rule 91a
motion).

5
“speculative” and “theoretical” claim and therefore is not ripe and cannot be addressed
by declaratory judgment.
Without holding a hearing, the trial court granted LFFI’s Rule 91a motion,
dismissed all of Swanson’s claims with prejudice, and awarded $2,500 in attorney’s fees
to LFFI. This appeal followed.
II. 	RULE 91 A DISMISSAL
A. 	Applicable Law and Standard of Review
Rule 91a allows a party to move to dismiss a cause of action “on the grounds that
it has no basis in law or fact.” TEX. R. CIV . P. 91a.1. Dismissal is appropriate under the
rule “if the allegations, taken as true, together with inferences reasonably drawn from
them, do not entitle the claimant to the relief sought” or “no reasonable person could
believe the facts pleaded.” Id. Aside from evidence regarding attorney’s fees and costs,
“the court may not consider evidence in ruling on the motion and must decide the motion
based solely on the pleading of the cause of action, together with any pleading exhibits
permitted by Rule 59.” Id. R. 91a.6.
“We review the merits of a Rule 91a motion de novo.” Bethel v. Quilling, Selander,
Lownds, Winslett & Moser, P.C., 595 S.W.3d 651, 654 (Tex. 2020); City of Dallas v.
Sanchez, 494 S.W.3d 722, 724 (Tex. 2016) (per curiam). “[W]hile [R]ule 91a ‘requires
courts to take all factual allegations in the pleadings as true, legal conclusions need not
be taken as true.’” Reaves v. City of Corpus Christi, 518 S.W.3d 594, 611 (Tex. App.—
Corpus Christi–Edinburg 2017, no pet.) (quoting Auzenne v. Great Lakes Reins., PLC,
497 S.W.3d 35, 39 n.2 (Tex. App.—Houston [14th Dist.] 2016, no pet.)).
Under the Uniform Declaratory Judgments Act (UDJA), a “person interested under

6
a deed . . . or whose rights, status, or other legal relations are affected . . . may have
determined any question of construction or validity arising under the instrument . . . and
obtain a declaration of rights, status, or other legal relations thereunder.” TEX . CIV . P RAC .
& REM . CODE § 37.004(a).4 The purpose of the UDJA “is to settle and to afford relief from
uncertainty and insecurity with respect to rights, status, and other legal relations; and it is
to be liberally construed and administered.” Id. § 37.002(b).
B. 	Analysis
In its Rule 91a motion to dismiss, LFFI argued that Swanson’s declaratory
judgment claims lack a basis in law or fact because they are neither justiciable nor ripe.
We agree.
A declaratory judgment is appropriate “only if a justiciable controversy exists as to
the rights and status of the parties and the controversy will be resolved by the declaration
sought.” Sw. Elec. Power Co. v. Lynch, 595 S.W.3d 678, 685 (Tex. 2020) (quoting
Bonham St. Bank v. Beadle, 907 S.W.2d 465, 467 (Tex. 1995)). This requires a “real and
substantial controversy involving genuine conflict of tangible interests and not merely a
theoretical dispute.” Id. A justiciable controversy need not be “a fully ripened cause of
action,” but the facts must show the “ripening seeds of a controversy”—that is, there must
“either be a pending cause of action between the parties or such a clear indication of the
extent of the parties’ differences that a court may presume one is imminent.” Reynolds v.
Reynolds, 86 S.W.3d 272, 276 (Tex. App.—Austin 2002, no pet.); see Harris Cnty. Mun.
Util. Dist. No. 156 v. United Somerset Corp., 274 S.W.3d 133, 139 (Tex. App.—Houston
4 Swanson does not challenge the trial court’s dismissal of her claims for injunctive relief;
accordingly, we consider only whether dismissal of her claims for declaratory judgment was proper.

7
[1st Dist.] 2008, no pet.) (noting a declaratory judgment action need not concern a present
lawsuit but may include “threatened litigation in the immediate future that seems
unavoidable”).
Ripeness is a related concept that “emphasizes the need for a concrete injury for
a justiciable claim to be presented.’” Patterson v. Planned Parenthood of Hou. & Se. Tex.,
Inc., 971 S.W.2d 439, 442 (Tex. 1998) (noting “[t]he constitutional roots of justiciability
doctrines such as ripeness . . . lie in the prohibition on advisory opinions, which in turn
stems from the separation of powers doctrine”). “A case is not ripe when determining
whether the plaintiff has a concrete injury depends on contingent or hypothetical facts, or
upon events that have not yet come to pass.” Waco Indep. Sch. Dist. v. Gibson, 22
S.W.3d 849, 852 (Tex. 2000); High Mountain Ranch Grp., LLC v. Niece, 532 S.W.3d 513,
518 (Tex. App.—Texarkana 2017, no pet.).
Here, Swanson’s petition alleged that LFFI sent her a letter “complaining about the
location of the bee hives on her property and requesting that she move them.” The letter
itself—which was attached as an exhibit to the petition and is therefore properly
considered in the Rule 91a analysis, see TEX . R. CIV . P. 91a.6—states that there is a
“possible non-compliance” with Paragraph 11 of the deed restrictions on Swanson’s
property, recommends that she take certain remedial measures to keep bees from
becoming a nuisance to people in the pavilion, and threatens her with a fine in the event
she does not respond.
Crucially, however, Swanson explicitly conceded in her petition that LFFI’s letter
“did not accuse [her] of violating the deed restrictions or any other rule or regulation of the
subdivision” but instead “merely requested that she move the bees.” Regardless of

8
whether the April 9, 2025 letter could be construed as a specific threat of enforcement
demonstrating the “ripening seeds of a controversy,” this acknowledgement in Swanson’s
petition constitutes a judicial admission that LFFI did not in fact accuse her of violating
the deed restrictions. See Weekley Homes, LLC v. Paniagua, 646 S.W.3d 821, 828 (Tex.
2022) (“Assertions of fact, not pled in the alternative, in the live pleadings of a party are
regarded as formal judicial admissions.” (quoting Hou. First Am. Sav. v. Musick, 650
S.W.2d 764, 767 (Tex. 1983))). Swanson’s admission effectively negates her claim that
there is an unavoidable or imminent conflict ripe for adjudication—after all, if LFFI has not
accused Swanson of violating the deed restrictions, then a declaration stating she did not
violate those restrictions would not resolve any live dispute. See Harris Cnty. Mun. Util.
Dist. No. 156, 274 S.W.3d at 139; Waco Indep. Sch. Dist., 22 S.W.3d at 852.
Swanson’s argument in her brief focuses principally on the notion that “bees are
legally an agricultural commodity, not an animal,”5 and she claims “the trial court was
“required to assume at this stage that [her] assertion the bees are not covered by
[Paragraph 11 of the deed restrictions] is true.” But her petition conceded LFFI’s letter did
not accuse her of violating the deed restrictions, and the trial court was also required to
take this allegation as true. See Reaves, 518 S.W.3d at 611. In any event, it is evident
the dispute concerns a potential nuisance, not whether bees are “domestic animals” for
purposes of the deed restrictions.
For the foregoing reasons, we conclude the trial court did not err by granting LFFI’s
5 Swanson cites Texas Agriculture Code Section 41.002 for this proposition, but that statute does
not say bees are “not an animal.” See T EX. AGRIC. C ODE § 41.002(1) (defining “agricultural commodity" as
“an agricultural, horticultural, viticultural, or vegetable product, bees and honey, planting seed, rice,
livestock or livestock product, or poultry or poultry product, produced in this state, either in its natural state
or as processed by the producer”).

9
Rule 91a motion to dismiss.6 Swanson’s first issue is overruled. Her second issue
regarding attorney’s fees is dependent entirely on the merit of her first issue, see TEX . R.
CIV . P. 91a.7 (permitting trial court to “award the prevailing party on the motion all costs
and reasonable and necessary attorney fees incurred with respect to the challenged
cause of action in the trial court”); accordingly, it is likewise overruled.
III. 	CONCLUSION
We affirm the trial court’s judgment.
YSMAEL D. FONSECA
Justice
Delivered and filed on the
22nd day of October, 2026.
6 LFFI argues in its brief that, after this appeal was filed, Swanson “filed yet another lawsuit against
[LFFI] which confirms both the correctness of the trial court’s ruling and the absence of any prejudice to
Swanson.” LFFI attached a purported copy of the petition to its brief and asks us to take judicial notice of
it. We deny the request to take judicial notice, and we do not consider the exhibit because it is not in the
appellate record. See, e.g., Greystar, LLC v. Adams, 426 S.W.3d 861, 865 (Tex. App.—Dallas 2014, no
pet.) (“It is well-established an appellate court may not consider matters outside the record, which includes
documents attached to a brief as an exhibit or an appendix that were not before the trial court.”); see also
T EX. R. C IV . P. 91a.6.