Greg Hilligiest v. Paradise Cove Property Owners Association

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-23-00356-CV
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GREG HILLIGIEST, Appellant

V.

PARADISE COVE PROPERTY OWNERS ASSOCIATION, Appellee
__________________________________________________________________

On Appeal from the 411th District Court
San Jacinto County, Texas
Trial Cause No. CV16,812
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MEMORANDUM OPINION
Appellant, Greg Hilligiest, appeals the summary judgment granted in favor of

the Paradise Cove Property Owners Association (PCPOA) on Hilligiest’s claims that

PCPOA wrongfully denied his application for a permit to build a metal garage

building on one of the lots he owned in the subdivision. For the reasons set forth

below, we affirm.

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BACKGROUND

Hilligiest bought four lots in Paradise Cove in 2017. In 2019, Hilligiest bought

an additional lot adjacent to his original four lots. Hilligiest planned to build his

garage on this additional lot. When he bought these lots, Hilligiest knew that the lots

were subject to deed restrictions and a Property Owners Association. Hilligiest also

admitted that he was aware of the deed restrictions and By-Laws that were meant to

be enforced by the Board of PCPOA with a review process that included submission

of his plans to the Architectural Control Committee (“ACC”). The deed restrictions

require that plans, specifications, and plat plans be submitted in writing and

approved by the ACC. Specifically, the restrictive covenants filed in the County

Clerk’s Office state in relevant part, “[n]o building shall be erected, placed or altered

on any lot in this subdivision until the plans, specifications and plat plans showing

the location of such building has been approved in writing by the Architectural

Control Committee….”

When Hilligiest had his house built in Paradise Cove, he personally submitted

the request for approval of the building plans, which the ACC approved. Years later,

when Hilligiest sought to build the garage that is the subject of this suit, he used the

form required by the ACC. That form is titled “REQUEST FOR APPROVAL (RFA)

TO MAKE A CHANGE TO PROPERTY,” and includes the following instructions:

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1. Complete this form, then sign and date.
2. A written description of the planned change must be attached and
submitted with this RFA.
3. If the requested change pertains to the construction of a home or any
other structure, . . . you are required to attach distinguishable
architectural plans, a plat plan and architectural specifications.
Restricted dimensions must be shown on related drawings (e.g.
foundation height, set back distances, building dimensions, etc.).
Architectural specifications must include type of structure, e.g.
wood frame, light gage metal frame, masonry, etc., foundation type,
roof type, siding type, and window type.
4. Plat plan must include placement of all structures, septic system,
driveways, walkways, etc. with all required dimensions.
5. Minimum requirements of the Deed Restrictions must be met for all
residential construction.
6. Mail this form and information to [address]. Using the required RFA
form, Hilligiest submitted his request to the ACC on February 1,
2021. In describing the nature of the change he was requesting,
Hilligiest’s RFA stated that he planned to “build a 40x40 garage. . .
. 40x40 enclosed w/20x40 carport under same roof ridge.” Although
Hilligiest testified in his deposition that he attached the plat to his
RFA, he conceded that his RFA did not include architectural
specifications or plans, or the foundation height.

The ACC rejected Hilligiest’s request on February 26, 2021, stating:

1. The RFA (Request for Approval) is incomplete.
a. See instruction section of RFA form attached.

2. Per Article III in the By-laws, the community is described as
Residential, and shall be maintained as residential in Character.

3. The exterior of the proposed structure is not considered to be keeping
with the residential character required by the By-Laws.

Hilligiest sued the PCPOA, seeking a declaratory judgment and an injunction

in his favor. Hilligiest also sought attorney’s fees. In his suit, Hilligiest alleged the

PCPOA abused its discretion by denying his application for the construction of a
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metal garage building. He sought a declaration that the By-Laws violated the original

deed restrictions and that the deed restrictions—not the By-Laws—should be

followed when considering his application. He alleged that his application must be

approved by the PCPOA because it complies with the deed restrictions. To remedy

this denial, Hilligiest requested the court to declare his rights under the deed

restrictions and grant a mandatory injunction to approve his application submitted

to PCPOA on February 1, 2021. The PCPOA counterclaimed, seeking its attorney’s

fees. Hilligiest and the PCPOA both moved for summary judgment.

After litigation ensued but prior to summary judgment, Hilligiest submitted

another application to the ACC on May 23, 2023. Once again, the ACC denied the

application on the basis that it was incomplete. As with the first denial, the ACC

notified Hilligiest that the second request did not contain a plat drawing with detailed

dimensions from the property setback lines and did not list the foundation type and

height.

Hilligiest argued in the summary judgment hearing that David L. Sheffield,

Trustee, was the proper party to approve the plans because Sheffield, the original

developer, never transferred control of the ACC to the PCPOA. In response, the

PCPOA pointed out that Hilligiest acknowledged the authority of the current ACC

when he submitted both ACC form applications for approval of his plans for the

garage and again when he filed his suit seeking a declaratory judgment and

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injunction. Hilligiest also alleged PCPOA and the ACC waived the restrictions by

allowing structures similar to the one he planned to build. He argued the PCPOA

abandoned the restrictions against metal garages by allowing the presence of other

metal structures.

Hilligiest points to the Property Code and the requirement that restrictive

covenants shall be liberally construed to give effect to its purposes and intent. See

Tex. Prop. Code Ann. § 202.003(a). He argues that restrictive covenants restricting

the free use of land are not favored by the courts. Finally, he argues that the ACC

and the PCPOA abused their discretion by denying his application to build the metal

garage building.

The trial court granted summary judgment in favor of the PCPOA and granted

the PCPOA’s request for attorney’s fees. Neither party requested the trial court to

make findings of fact and conclusions of law, and the trial court therefore made none.

STANDARD OF REVIEW

We review an order granting summary judgment de novo. Nassar v. Liberty

Mut. Fire Ins. Co., 508 S.W.3d 254, 257 (Tex. 2017). Like a trial court’s summary-

judgment ruling, courts review a trial court’s interpretation of a restrictive covenant

de novo. Tarr v. Timberwood Park Owners Ass’n, 556 S.W.3d 274, 279 (Tex. 2018)

(internal citation omitted). In our de novo review, we review the evidence presented

in the motion and the response in the light most favorable to the nonmovant,

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crediting favorable evidence to the nonmovant if reasonable jurors could, and

disregarding contrary evidence unless reasonable jurors could not. Mann Frankfort

Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009); City of

Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). The party moving for a

traditional motion for summary judgment bears the burden of showing no genuine

issue of material fact exists and that he is entitled to judgment as a matter of law on

the issues set out in the motion. Tex. R. Civ. P. 166a(c); Nassar, 508 S.W.3d at 257.

A matter is conclusively established if ordinary minds could not differ as to the

conclusion derived from the evidence. Triton Oil & Gas Corp. v. Marine

Contractors & Supply, Inc., 644 S.W.2d 443, 446 (Tex. 1982). When, as is the case

here, both sides move for summary judgment and the trial court grants one and

denies the other, we review the summary-judgment evidence presented by both sides

and determine all of the questions presented. Fielding, 289 S.W.3d at 848. Also

when, as here, the trial court did not specify the exact basis for its ruling we

must affirm the summary judgment if any of the grounds asserted are meritorious.

Lightning Oil Co. v. Anadarko E&P Onshore, LLC, 520 S.W.3d 39, 45 (Tex. 2017).

ANALYSIS

The Texas Property Code provisions controlling restrictive covenants provide,

in relevant parts:

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§ 202.003. Construction of Restrictive Covenants.

(a) A restrictive covenant shall be liberally construed to give effect to
its purposes and intent.

(b) In this subsection, “family home” is a residential home that meets
the definition of and requirements applicable to a family home under
Chapter 123, Human Resources Code. A dedicatory instrument or
restrictive covenant may not be construed to prevent the use of property
as a family home. However, any restrictive covenant that applies to
property used as a family home shall be liberally construed to give
effect to its purposes and intent except to the extent that the construction
would restrict the use as a family home.

Tex. Prop. Code Ann. § 202.003(a), (b).

§ 202.004. Enforcement of Restrictive Covenants.

(a) An exercise of discretionary authority by a property owners’
association or other representative designated by an owner of real
property concerning a restrictive covenant is presumed reasonable
unless the court determines by a preponderance of the evidence that
the exercise of discretionary authority was arbitrary, capricious, or
discriminatory.

Tex. Prop. Code Ann. § 202.004(a).

§ 209.015. Regulation of Land Use: Residential Purpose.

...

(c) An owner must obtain the approval of the property owners’
association or, if applicable, an architectural review authority […]
established by the association or the association’s dedicatory
instruments, based on criteria prescribed by the dedicatory instruments
specific to the use of a lot for residential purposes, including reasonable
restrictions regarding size, location, shielding, and aesthetics of the
residential purpose, before the owner begins the construction,
placement, or erection of a building, structure, or other improvement
for the residential purpose on an adjacent lot.
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Tex. Prop Code Ann. § 209.015(c).

Restrictive covenants are subject to general rules of contract construction. See

Pilarcik v. Emmons, 966 S.W.2d 474, 478 (Tex. 1998). “Whether restrictive

covenants are ambiguous is a question of law.” Id. “Courts must examine the

covenants as a whole in light of the circumstances present when the parties entered

the agreement.” Id. We believe the restrictive covenants for the PCPOA are clear and

unambiguous in this case where they provide that “[n]o building shall be erected,

placed or altered on any lot in this subdivision until the plans, specifications and plat

plans showing the location of such building has been approved in writing by the

Architectural Control Committee….”

The evidence before the trial court as submitted by both parties through cross-

motions for summary judgment shows two incomplete applications for approval of

the metal garage building. Each application fails to present supporting

documentation for two things: 1) they did not contain a plat drawing with detailed

dimensions from the property setback lines to the proposed building location; and 2)

they did not list the foundation type and height. Hilligiest acknowledged this

requirement when he was deposed about the first application he submitted before he

submitted his second application. The PCPOA in both its answer to Hilligiest’s

petitions and in its motions for summary judgment raised the condition precedent as

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an affirmative defense that a complete written application must be submitted to the

ACC with specifications, plans, and plat plans for approval.

Failure to comply with a condition precedent is an affirmative defense to a

breach of contract claim. See James Constr. Grp., LLC v. Westlake Chem. Corp., 650

S.W.3d 392, 404 (Tex. 2022). A condition precedent is an event that must happen or

be performed before a right can accrue to enforce an obligation. Id. (citing Solar

Applications Eng’g, Inc. v. T.A. Operating Corp., 327 S.W.3d 104, 108 (Tex. 2010)).

Since Hilligiest has not met the condition precedent to have his application for

approval of the metal garage building considered and approved, he cannot enforce

any alleged breach of the obligation of the PCPOA to exercise its discretion to

approve or deny the application. See James Constr. Grp., 650 S.W.3d at 404, 413.

Hilligiest has not complied with the restrictive covenant found in the deed

restrictions requiring “No building shall be erected, placed or altered on any lot in

this subdivision until the plans, specifications and plat plans showing the location of

such building has been approved in writing by the Architectural Control

Committee.” Therefore, the trial court did not err in granting PCPOA’s motion for

summary judgment, because Hilligiest did not meet the conditions precedent to have

his applications considered. We overrule Hilligiest’s initial issue.

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We need not consider Hilligiest’s remaining three issues because our

disposition of these issues would not alter the outcome of this appeal. See Lightning

Oil Co., 520 S.W.3d at 45; Tex. R. App. P. 47.1.

CONCLUSION

Having determined that the trial court did not err by granting summary

judgment in PCPOA’s favor, we affirm the trial court’s judgment.

AFFIRMED.

JAY WRIGHT
Justice

Submitted on August 28, 2025
Opinion Delivered October 16, 2025

Before Johnson, Wright and Chambers, J.J.

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