Lawrence Traw v. Walden Town House Association, Inc.

In The

Court of Appeals

Ninth District of Texas at Beaumont

____________________

NO. 09-23-00247-CV
_____________________

LAWRENCE TRAW, Appellant

V.

WALDEN TOWN HOUSE ASSOCIATION, INC., Appellee

________________________________________________________________________

On Appeal from the 457th District Court
Montgomery County, Texas
Trial Cause No. 21-12-16490-CV
________________________________________________________________________

MEMORANDUM OPINION

Pro se Appellant Lawrence Traw (“Traw”) appeals a declaratory judgment in

a suit brought by Walden Town House Association, Inc. (the “Association”) that

sought a declaration that Traw had no authority to exert any control over property

within the Walden on Lake Conroe, Section 7 (the “Subdivision”) not owned by

Traw, and that the Walden Section 7 Owners Organization, Inc. (“Owners

Organization”) created by Traw had no authority to exert any control over or

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authority to represent any property within the Subdivision. We affirm the trial

court’s Final Judgment.

Background

In December 2021, the Association filed its Original Petition and Request for

Declaratory Judgment against Traw and the Owners Organization. Traw serves or

had served as a Director and President of the Owners Organization. In the suit, the

Association, which is the established property owner’s association for the

Subdivision, alleged that Traw and the Owners Organization erected bollards on the

right-of-way and street easement for which the Association is responsible.

Specifically, the bollards were erected across a driveway on property the Association

alleged to exclusively control and that connected to an adjacent community. They

were allegedly erected to prevent access to a dumpster used by the adjacent

community. In addition to the cost for removal of the bollards, the Association

requested that the trial court find: (1) that the Association has the vested authority to

manage, maintain, and exert exclusive authority over the rights-of-way and street

easements within the Subdivision, (2) that the Owners Organization does not have

the authority to exert any control over or represent any properties within the

Subdivision, and (3) that Traw has no authority as an owner to exert independent

control over or authority to represent any properties in the Subdivision not owned

by him. The Association attached as exhibits the Deed and Restrictions for the

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Subdivision, the plat and legal description of the Subdivision, a photo of the erected

bollards, a plat of where the bollards were located, the Owners Organization’s

Certificate of Formation filed with the Texas Secretary of State, the Owners

Organization’s Articles of Incorporation, and a complaint filed by the Owners

Organization against Waste Management for an emergency temporary restraining

order, preliminary injunction, and permanent injunction.

In February 2022, the Association filed a Motion for No Answer Default

Judgment against the Owners Organization with supporting affidavits. The trial

court later granted the Motion. After attempting unsuccessfully to serve Traw, the

trial court granted the Association’s request for substitute service of process.

In March 2022, Traw, as a pro se litigant, filed a Motion to Dismiss Plaintiff’s

Original Petition on behalf of himself and the Owners Organization. In the Motion,

Traw and the Owners Organization argued that under the Property Code, the

Association was required to notify the owner to cure the situation and requested that

the Association be required to hold an open meeting with him.

A month later, the Owners Organization filed a Motion for New Trial that

argued its failure to appear was not intentional, but that its registered agent failed to

forward the Original Petition. The Owners Organization further argued that the

Association has no standing to bring the action because the Association does not

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own any rights to the private roads in Walden on Lake Conroe, Section 7. After a

hearing, the trial court granted the Owners Organization’s Motion for New Trial.

In March 2023, the bench trial began. The Association called Michael

Herminghaus, former President of the Association, as its first witness. Herminghaus

testified that he owns a home in the Subdivision that he purchased in 2000. He

acknowledges that the Subdivision is subject to Restrictive Covenants and that the

restrictions run with the land within the Subdivision except certain Parking Reserves

and Green Belt Reserves, which are only subject to restrictions in Article II, Section

7 of the Restrictive Covenants. Specifically, the Restrictive Covenants, which were

admitted into evidence, state:

NOW, THEREFORE, Declarants hereby adopt, establish and impose
upon WALDEN ON LAKE CONROE, SECTION SEVEN, and
declare the following reservations, easements, restrictions, covenants
and conditions, applicable thereto, all of which are for the purpose of
enhancing and protecting the value, desirability and attractiveness of
the land, which reservations, easements, covenants, restrictions and
conditions shall run with the land and shall be binding upon all parties
having or acquiring any right, title or interest therein, or any part
thereof, and shall inure to the benefit of each owner thereof; save and
except Parking Reserves “1”, “2”, “3”, “4”, “5”, “6”, “7”, “8” and “9”
and Green Belt Reserves “A”, “B”, “C”, “D”, “E”, “F”, “G”, “H”, “J”,
“K”, “L”, “M”, “N”, “P”, “Q” and “R” which are not subject to these
Restrictions, Covenants and Conditions, except as set out herein in
Article II, Section 7.

Herminghaus testified that Article 11, Section 7 states that Green Belt

Reserves and Parking Reserves, and all streets, except for Melville Drive, are

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restricted for the use of the property owners of the Subdivision and their guests. The

Restrictive Covenants state:

WALDEN ON LAKE CONROE SECTION SEVEN’S Green Belt
Reserves “A” through “H” and “J”, “K”, “L”, “M”, “N”, “P”, “Q” and
“R” and Parking Reserves “1” through “9”, inclusive and any other
improvements therein and all streets except Melville Drive are
restricted for use of property owners of WALDEN ON LAKE
CONROE, SECTION SEVEN and their guests.

Herminghaus agreed that Article II, Section 7 did not create an easement right giving

owners a right to use the Greenbelts, but it restricts what the owner of the Greenbelts

is allowed to do with the property.

Herminghaus testified that Greenbelt Reserve R crosses over a driveway that

provides access to an adjoining development called Harbour Village Condominiums

(“Harbour Village”). Herminghaus agreed that a driveway provides access to the

Harbour Village parking lot where a dumpster is also located. According to

Herminghaus, a portion of the driveway is on Greenbelt Reserve R property, and the

dumpster used to be partially on greenbelt reserve property and mostly on the

Harbour Village property. Herminghaus acknowledged that the Association entered

into a shared access and use agreement with Harbour Village to allow use of a road

within the Subdivision to enter the Harbour Village parking lot.

Herminghaus further testified that a Special Warranty Deed recorded in 1982

indicates that the developers of the Subdivision conveyed ownership of Greenbelt

Reserves A, B, C, D, E, F, G, H, J, K, L, M, N, P, Q, and R and Parking Reserves 1,
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2, 3, 4, 5, 6, 7, 8, and 9 to the Association.1 The Special Warranty Deed was admitted

as an exhibit.

Herminghaus testified that he was invited to join the Board of Trustees for the

Association in February 2018. At the time, other trustees included Traw, Peter

Sheppard, Al Truskowski, and Paula Hendrick. Herminghaus testified that he first

became aware that Traw had an issue with the dumpster in the Harbour Village

parking lot next to Greenbelt Reserve R property in April 2020 when Traw replied

to an email with a photo of the dumpster overflowing, that told the Board that the

“dumpster needs to go.” Later that month, Traw and some neighbors put small traffic

cones on the road to block access to the Harbour Village parking lot. A photo of the

driveway blocked with traffic cones was admitted into evidence. Herminghaus

further acknowledged that Traw sent a letter to the Association on behalf of

Homeowners of Walden Townhouse Association that threatened legal action if the

dumpster, partially located on a greenbelt reserve, was not removed within ten days.

Herminghaus testified that although the dumpster was not removed in ten days, the

Association’s Board began discussing relocating the dumpster with Harbour Village.

1 A corrective Deed was later filed in 1987. On or about that same time, the

Association conveyed via a Quitclaim Deed all portions of Greenbelt Reserve L and
Parking Reserve 6 to Federal National Mortgage Association to clear a potential title
issue. Both the corrective Deed and Quitclaim Deed were admitted as exhibits at
trial.

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However, all discussions ceased once three steel rebars were installed in September

2020. Herminghaus described the rebars as steel poles drilled into the driveway. A

photo of the rebars was admitted into evidence and Herminghaus testified that his

belief is that the posts on the right and middle are possibly on the greenbelt reserve,

but the post on the left is on Harbour Village property.

According to Herminghaus, Traw did not have permission to install the rebar

on the greenbelt reserve. The Association’s Board instructed Traw and his neighbors

not to erect any structures on the greenbelt reserve and to leave all negotiations to

the Board; however, Traw did not follow these instructions. Herminghaus believed

that Harbour Village’s maintenance technician, Paul Bond, removed the rebar posts.

Once the rebar posts were removed, Peter Sheppard, a neighbor of Traw and

member of the Association, filed a suit against Bond for the removal of the rebar

posts. Traw and neighbor Christine Gallo were later added as Plaintiffs. According

to Herminghaus, at a meeting between the Board and homeowners of Block 13, Traw

admitted that he paid to have the rebar posts installed.

Herminghaus testified that a Certificate of Formation filed with the Secretary

of State in December 2020 indicates the formation of a nonprofit corporation called

Walden Section 7 Owners Organization, Inc., and the initial directors listed are

Traw, Sheppard, and Mary Salisbury. According to the Certificate of Formation, the

Owners Organization was formed to research HOA laws and does not indicate that

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its purpose is to represent property owners in the Subdivision or will have any

members.

Herminghaus then testified regarding a letter dated January 2021, from the

Owners Organization President, Traw, to Waste Management that informed Waste

Management that continued use of Lakewood Drive would result in a lawsuit against

them. The letter stated that this was the last notice that Waste Management would

receive.

In July 2021, the Owners Organization filed a Complaint for Emergency

Temporary Restraining Order, Preliminary Injunction and Permanent Injunction

against Waste Management. In the Complaint, the Owners Organization states that

a Cease-and-Desist letter was sent to Waste Management requesting that Waste

Management stop trespassing on the Owners Organization’s property and to move

the Waste Management dumpster that is on the Owners Organization’s property.

Because Waste Management failed to comply, the Complaint was filed.

Herminghaus testified that the Owners Organization does not own Greenbelt

Reserve R, Lakewood Drive, any real property within the Subdivision, the parking

lot where the dumpster was located, or any property in Texas. According to

Herminghaus, he is not sure what harm or property the Owners Organization is

referring to in the Complaint against Waste Management. Herminghaus attended the

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hearing to dismiss the case for want of prosecution and he recalled that Traw did not

appear at the hearing and the case was dismissed.

Herminghaus testified that the Association directed its general counsel to send

Traw, Sheppard, and the Owners Organization a cease-and-desist letter. In the letter,

the Association requested that certain past activities cease that included:

• Meeting with county staff at Montgomery County claiming to represent the
Subdivision;

• Sending emails to Association members claiming to be representing them
on behalf of the Subdivision;

• Filing a lawsuit against a maintenance man for actions on the Associations
property without legal standing to do so;

• Contacting and threatening to sue Harbour Village about its dumpster and
threatening to block access to the Association’s road without legal standing;

• Blocking the access entry to Harbour Village’s dumpster in violation of the
law;

• Threatening in a letter to sue the Association and or the Board on behalf of
people who had not authorized the letter; and

• Creating confusion among members of the Association concerning the legal
representation of the Association.

The letter further noted that the following future activities were unacceptable:

• Claiming to represent the Association;

• Interfering in the Association’s negotiations with Harbour Village;

• Claiming to represent the Subdivision; and

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• Claiming to represent persons in connection with the Section 7 neighborhood
who have not given their permission for you to act on their behalf.

Traw responded to the Association’s cease and desist letter with certain

demands of the Association. In the letter, Traw makes several statements regarding

his actions that included:

• We can send emails to anyone we want. It is not the board’s right to censor
any person’s emails. We do represent homeowners on issues that they want
us to represent them on. It is not the Board’s task to determine whom we can
represent and whom we cannot. Frankly, it is none of the Board’s business;

• This statement to stop filing a lawsuit against a person is about as ignorant
as this cease and desist letter. We have all the standing we need to file any
lawsuit against anybody we want. A judge in a court of law can only determine
standing and the Board is definitely not a judge;

• We will continue to contact and file, not just threaten, a lawsuit against
Harbour Village and block access anytime we want and there is nothing the
Board can do about it;

• We can and will block access from and to Harbour Village anytime we want
and as you have learned recently, it is not illegal;

• We do represent our Subdivision whether the Board likes it or not. The
Owners Organization is alive and well and represents the vast majority of
Section 7 homeowners;

• We are ready, willing and able to defend our position in a Court of Law, if
need be, and as a matter of fact, we are looking forward to it. If the Board feels
there is a violation of law on any of these points address, by all means file a
lawsuit; we will destroy you in court; and

• I hope that the Board takes this letter and demands very seriously.

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Enclosed with Traw’s response letter is a draft petition wherein Traw and

Sheppard sue the Association and Board for libel and slander. Included in the

petition are the following statements:

• The Board never responded in an appropriate timeframe on any questions
submitted related to the encroachment on the Plaintiff’s property. The
Plaintiffs were tired of waiting and had a survey done at their own expense
and discovered that Harbour Village placed their dumpster on [the
Subdivision’s] property and that the roads were private.

• After several months of the Board’s incompetence and negligence, the
Plaintiffs became impatient with the Board’s inaction and sent several emails
to Harbour Village requesting that they remove the structures constructed on
[the Subdivision’s] property. The Plaintiffs were told that they needed to
proceed through the [Association]. The Plaintiffs contacted the Defendant no
response. So the Plaintiffs, in accordance with Texas law, proceeded on their
own to correct the problem.

• The Plaintiffs then had rebar installed temporarily to stop the trash trucks
from trespassing on [the Subdivision’s] property.

Herminghaus testified that from his understanding Traw also removed the

wooden enclosure for the Harbour Village dumpster in October 2021.

In November 2021, Traw drilled holes and installed metal bollards on the

Greenbelt Reserve R portion of the driveway for the Harbour Village parking lot.

According to Herminghaus, neither Traw nor the Owners Organization had

permission or consent to install metal bollards on property owned by the

Association. Herminghaus testified that the Association’s Board actually instructed

Traw not to erect any structures. The Association’s Board had the bollards removed

as it not only blocked the dumpster, but also the driveway for the residents and
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emergency vehicles. Within two weeks of installation, the Board had the bollards

removed at a cost of $199.00.

According to Herminghaus, after the bollards were removed in November

2021, Traw emailed the Association’s Board and suggested they hire an attorney to

handle future issues. In the email, Traw then stated that the Association owns the

common areas, but not the roads. Herminghaus agreed that Traw’s statement was an

admission that the Association owned Greenbelt Reserve R. Traw then suggested

that the common areas had been foreclosed on and because of the foreclosure, the

Association had no authority to regulate the common areas. Herminghaus testified

that he is not aware of any foreclosure on common areas or of any warranty deed

conveying ownership of Greenbelt Reserve R.

Next, the email requested that the bollards be reinstalled, and he has a

prepared lawsuit against the Board that will be filed that week, and that in the

lawsuit, he would be asking for damages and repercussions against Herminghaus

and another Board member. Herminghaus testified that Traw filed a small claims

lawsuit later that same month against the Association for slander, defamation, and

filing false police reports. Traw sought damages in the amount of $20,000.00. Traw

voluntarily nonsuited the lawsuit in April 2022.

Herminghaus testified that as a result of Traw’s actions, threats, lawsuits, and

accusations, the Association filed the current lawsuit against Traw. Traw’s actions

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and lawsuits filed caused the Association to submit liability insurance claims on its

directors and officers, which cost the Association damages, including an increase in

insurance premiums and attorney’s fees.

Next, the Association called Traw. Traw testified that he and his wife have

owned property in the Subdivision at 3842 Lakewood Drive since 2015. Traw

testified that he is not a lawyer and has never claimed to be an officer of the court.

Traw admitted that he, along with ten others, installed rebar spikes in the Greenbelt

Reserve R portion of the driveway to Harbour Village, along with removing the

enclosure around the dumpster. Traw also admitted that he installed or caused to be

installed the metal bollards across the driveway in November 2021. Traw testified

that he, along with others, incorporated the Owners Organization, and it was

intended to be a religious organization to host events and discuss issues in the

Subdivision, but never to conflict with the Association. He admitted that the Owners

Organization’s purpose as stated on the Certification of Formation “to research HOA

laws” was “just to put something on there, actually.”

Traw testified that the Owners Organization did not own Lakewood Drive,

Greenbelt Reserve R, or any property within the Subdivision. Traw stated that in his

personal capacity, he owns the section of Lakewood Drive between the widths of his

property. He acknowledged that he does not own any portion of the Harbour Village

property, and that the Association owns Greenbelt Reserve R. But Traw believes that

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he, along with the members of the Association, owns Greenbelt Reserve R as

members of the Association. Traw further testified that he understands that none of

the restrictive covenants applicable to the Subdivision apply to Harbour Village;

however, he still expected the Association to do something about the Harbour

Village dumpster. He later acknowledged that the restrictive covenants do not create

a duty for the Association to enhance and protect the value, desirability, and

attractiveness of the land nor does it give the Association the right to enforce any

restrictions against any owners in the Subdivision. In fact, the Walden on Lake

Conroe Community Improvement Association (CIA) has the right to enforce the use

restrictions in the Subdivision.

Traw testified that the restrictive covenants do not allow him to start

demolishing improvements on someone else’s property. Although the covenants do

not state that he could remove the enclosure around the Harbour Village dumpster

or erect bollards, Traw testified that he is allowed to protect his property, although

he could not identify where the covenants authorize his actions. According to Traw,

the Association has a fiduciary duty, to protect the homeowners in the Subdivision

created in the bylaws, contract, and governing documents.

Traw testified that he and other homeowners decided to install the rebar spikes

on Greenbelt Reserve R in civil disobedience and he believes that the Owners

Organization had standing, as property owners in the Subdivision, to sue Waste

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Management for use of the road. He did not feel that the homeowners in the

Subdivision benefitted from the agreement between the Association and Harbour

Village for the use of the street to empty the dumpster. Traw testified that the

restrictions require that the Association use the proceeds of the maintenance fund,

which is funded by the homeowners’ annual dues, for the use and benefit of the

residences and that provision created a fiduciary duty and responsibility.

The final witness called by the Association was Gregory Cagle, attorney for

the Association. Cagle testified that his attorneys’ fees and bills representing the

Association in this matter total $49,033.00 through trial. He testified that 99 percent

of his practice involves condominiums and representing property owners’

associations.

As the last witness, Alfred Ruemke, attorney for Traw and the Owners

Organization, testified that his attorneys’ fees and bills in this matter total

$11,850.00 through trial. Ruemke testified that he has been an attorney for forty

years and has handled many HOA cases representing HOAs and homeowners.

At the conclusion of the bench trial, the trial judge issued findings of fact and

conclusions of law, found that the Association was the prevailing party for a

declaratory judgment, and awarded attorney’s fees. The Final Judgment provided:

IT IS ORDERED that Defendants Traw and [Owners Organization] are
permanently enjoined from modifying or destroying or causing the
modification or destruction of the Reserve Property, the Roads and any
improvements constructed thereon;
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IT IS FURTHER ORDERED that Defendants Traw and the [Owners
Organization] are permanently enjoined from obstructing or causing the
obstruction of the use of the Reserve Property and/or Roads by the
Association or any other persons;

IT IS FURTHER ORDERED that notwithstanding the permanent
injunctions contained herein, Traw shall continue to be allowed to
access and use the Reserve Property and/or the Roads as permitted by
the Declaration provided that Traw does not modify or destroy the
Reserve Property or obstruct its use by the Association or any other
persons;

IT IS FURTHER ORDERED that Defendants Traw and the [Owners
Organization], jointly and severally, shall pay the Association the
amount of $199.00 in compensatory damages;

IT IS FURTHER ORDERED that Defendants Traw and the [Owners
Organization], jointly and severally, shall pay the Association the
amount of $49,033.00 in reasonable and necessary attorneys’ fees;

IT IS FURTHER ORDERED that if Defendant Traw or [the Owners
Organization] unsuccessfully appeals this Final Judgment to an
intermediate court of appeals, the Association shall recover $15,750.00
in additional reasonable and necessary attorneys’ fees from the party
appealing the Final Judgment;

IT IS FURTHER ORDERED that if Defendant Traw or [the Owners
Organization] unsuccessfully appeals this Final Judgment to the Texas
Supreme Court; the Association shall recover $13,125.00 in additional
reasonable and necessary attorneys’ fees from the party appealing the
Final Judgment; and

IT IS FURTHER ORDERED that [The Association] is awarded post-
judgment interest in all the foregoing amounts at the rate established by
law.

All other relief not expressly granted herein is denied. This judgment
finally disposes of all parties and all claims and is appealable.

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This appeal followed.

On appeal, Traw brought five issues that challenge the Association’s standing,

the denial of a Motion to Dismiss, the granting of the Declaratory Judgment, whether

the lawsuit is frivolous, and the award of attorneys’ fees.

Standard of Review

We review declaratory judgments under the same standards as other

judgments and decrees. Tex. Civ. Prac. & Rem. Code Ann. § 37.010. “We look to

the procedure used to resolve the issue at trial to determine the standard of review

on appeal.” Eisen v. Capital One, Nat’l Ass’n, 232 S.W.3d 309, 310 (Tex. App.—

Beaumont 2007, pet. denied) (citation omitted). When a declaratory judgment is

entered after a bench trial, we apply a sufficiency standard to review the findings of

fact and review the trial court’s conclusions of law de novo. Sw. Elec. Power Co. v.

Lynch, 595 S.W.3d 678, 683 (Tex. 2020); In re Est. of Martinez, No. 04-22-00708-

CV, 2024 WL 697102, at *1 (Tex. App.—San Antonio Feb. 21, 2024, no pet.) (mem.

op.) (citation omitted). Only conclusions of law will be reversed if they are erroneous

as a matter of law. Est. of Martinez, 2024 WL 697102, at *1 (citation omitted); see

also BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002).

Analysis

In his first issue, Traw argues that the Association lacks standing to bring this

suit because it has no authority or control over the roads and no authority to enforce

17
the restrictions. According to Traw, the Association admitted at trial that it lacked

authority over the roads and restriction enforcements, and it therefore lacked

standing and cannot bring a suit for declaratory relief.

Under Texas law, standing “requires a concrete injury to the plaintiff and a

real controversy between the parties that will be resolved by the court.” Heckman v.

Williams Cnty., 369 S.W.3d 137, 154 (Tex. 2012) (citing DaimlerChrysler Corp. v.

Inman, 252 S.W.3d 299, 304, 307 (Tex. 2008)). The inquiry into standing begins by

determining whether the plaintiff has been personally injured, and the plaintiff must

plead facts sufficient to show that he, rather than a third party or the public at large,

suffered the injury. Id. at 155. “A plaintiff must affirmatively show, through

pleadings and other evidence pertinent to the jurisdictional inquiry, a distinct interest

in the asserted conflict, such that the defendant’s actions caused the plaintiff some

particular injury.” Alpert v. Riley, 274 S.W.3d 277, 291 (Tex. App.—Houston [1st

Dist.] 2008, pet. denied) (citation omitted).

At trial, the evidence established through a Special Warranty Deed that the

Association is the owner of Greenbelt Reserve R in the Subdivision. Additionally,

the Restrictions, also admitted as an exhibit at trial, vested in the Association the

duty to maintain and operate rights-of-way (including roadways), easements and

other public areas.

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Here, the Association sued Traw for damages to the Greenbelt Reserve R, a

right-of-way with an easement, caused by the unauthorized installation of bollards,

and for declaratory judgment that neither Traw nor the Owners Organization are

authorized to exert any control over any properties in the Subdivision not owned

personally by either. At trial, Traw admitted that he installed or caused to be

installed, bollards on Greenbelt Reserve R.

Based on Traw’s admission that he caused bollards to be installed on

Greenbelt Reserve R, property owned and maintained by the Association, the

Association has demonstrated an injury caused by Traw and has established standing

to sue for damages caused by Traw’s actions and for declaratory judgment as to

property owned and maintained by the Association. See Alpert, 274 S.W.3d at 291.

We overrule Traw’s first issue.

Next, Traw challenges the denial of a Motion to Dismiss. In the Motion, Traw

and the Owners Organization argued that under the Property Code, the Association

was required to notify the owner to cure the situation. However, the record before

this Court does not indicate that Traw secured a ruling on the Motion to Dismiss.

Preservation is a prerequisite to appellate review, and requires that a movant

present a timely request, objection or motion and obtain a ruling or object to the trial

court’s refusal to rule. See Tex. R. App. P. 33.1(a)(2). While the record indicates that

Traw and the Owners Organization filed a Motion to Dismiss, the record is absent a

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ruling from the trial court. See id. Since Traw failed to obtain a ruling on the Motion

to Dismiss, his complaint related to the Motion to Dismiss was waived and was not

preserved for appellate review. See id.

We overrule Traw’s second issue.

In his third issue, Traw challenges the order granting declaratory relief in

several arguments. In his first argument, Traw contends that a contractual

relationship is required to bring a declaratory action. In his second argument, Traw

asserts that declaratory relief is not appropriate because there is no controversy.

According to Traw, the Association has no control or authority over the roads in the

Subdivision and Traw, as a homeowner, owns the roads under the strip and gore

doctrine.

A declaratory judgment is a remedial measure that determines the rights of

the parties and affords relief from uncertainty with respect to rights, status, and legal

relationships. See Tex. Civ. Prac. & Rem. Code Ann. § 37.002; see also Ysasaga v.

Nationwide Mut. Ins. Co., 279 S.W.3d 858, 863 (Tex. App.—Dallas 2009, pet.

denied). The provisions of the Uniform Declaratory Judgments Act (UDJA) do not

require a contract to bring a declaratory action, and Traw fails to provide any legal

authority for his argument. See Tex. Civ. Prac. & Rem. Code Ann. § 37.002;

Ysasaga, 279 S.W.3d at 863.

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Regarding Traw’s argument that the suit lacks a controversy, as discussed

above regarding the Association’s standing to bring the suit, a controversy exists

based on obstructions that Traw and the Owners Organization installed or caused to

be installed on Greenbelt Reserve R, property that is owned and controlled by the

Association. See Alpert, 274 S.W.3d at 291. Because a contract is not required for

declaratory relief, and a controversy exists, we overrule Traw’s third issue.

Next, Traw argues that this lawsuit is frivolous, without merit and

unsubstantiated. According to Traw, the claims in the lawsuit are not supported by

the evidence.

Generally, the term frivolous “contemplates that a claim or motion will be

considered frivolous if it has ‘no basis in law or fact’ and ‘lacks a legal basis or legal

merit.’” Smith v. 2005 Tower LLC, No. 09-22-00350-CV, 2024 WL 3616470, at *10

(Tex. App.—Beaumont Aug. 1, 2024, pet. denied) (mem. op.) (quoting Sullivan v.

Tex. Ethics Comm’n, 551 S.W.3d 848, 857 (Tex. App.—Austin 2018, pet. denied))

(discussing meaning of frivolous in context of TCPA lawsuit). As is clear from our

discussion of Traw’s other issues, this lawsuit does not meet the commonly

understood definition of frivolous. The Association brought this lawsuit, which is

based both on facts and the law. See id.

We overrule issue four.

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In his final issue, Traw challenges the trial court’s award of attorneys’ fees to

the Association. Traw argues that the Association did not comply with Section

209.006 of the Texas Property Code and is therefore not entitled to attorneys’ fees.

See Tex. Prop. Code Ann. § 209.006 (requiring a Board to conduct a hearing to

resolve a property matter or violation when requested by a property owner).

Here, the Association did not bring the underlying lawsuit under Chapter 209

of the Texas Property Code. The Association brought this suit under the UDJA, and

the UDJA authorizes a trial court to award “reasonable and necessary attorney’s fees

as are equitable and just.” Tex. Civ. Prac. & Rem. Code Ann. § 37.009. Having

determined that the UDJA authorizes an award of reasonable and necessary

attorney’s fees, and that the trial court heard evidence that it would be equitable and

just to the Association for reasonable and necessary attorneys’ fees, we overrule

Traw’s final issue. See id.

Conclusion

Having considered and overruled all Traw’s issues, we affirm the trial court’s

final order.

AFFIRMED.

W. SCOTT GOLEMON
Chief Justice
Submitted on March 5, 2025
Opinion Delivered July 31, 2025
Before Golemon, C.J., Wright and Chambers, JJ.

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