FILED

C2018-0887C
7/11/2019 3:51 PM
Heather N. Kellar
Comal County
District Clerk
NO. C2018-0887C Accepted By:
Nubia Salas
ALISON N. MAILLET AND § IN THE DISTRICT COURT
SCOTT K. WHATLEY §
§
VS. § 274TH DISTRICT
§
MYSTIC SHORES PROPERTY §
OWNERS ASSOCIATION § COMAL COUNTY, TEXAS

PLAINTIFFS’ FIRST AMENDED ORIGINAL PETITION AND

REQUEST FOR DISCLOSURES

TO THE HONORABLE JUDGE OF SAID COURT:

COME NOW, ALISON N. MAILLET and SCOTT K. WHATLEY (collectively “Plaintiffs”)

Plaintiffs in the above-styled and numbered cause, and file this their First Amended Original Petition

complaining of MYSTIC SHORES PROPERTY OWNERS ASSOCIATION (“Association” or

“Defendant”), Defendant in the above-styled and numbered cause, and in support thereof, would

respectfully show the Court as follows:

DISCOVERY CONTROL PLAN

1. Plaintiffs intend to conduct discovery, if any, under Level 2 of TEX. R. CIV. P. 190.

RULE 47 DISCLOSURES

2. Pursuant to TEX. R. CIV. P. 47, Plaintiffs seek relief of $100,000 or less and non-

monetary relief. The damages sought by Plaintiffs are within the jurisdictional limits of the Court.

PARTIES / SERVICE OF PROCESS

3. Plaintiff, ALISON N. MAILLET, is an owner of real property in Comal County,

Texas. ALISON N. MAILLET’s last three social security numbers are 280 and the last three numbers

of her Texas driver’s license are 441.

4. Plaintiff, SCOTT K. WHATLEY, is an owner of real property in Comal County,

Texas. SCOTT K. WHATLEY’s last three social security numbers are 891 and the last three

numbers of his Texas driver’s license are 931.

5. Defendant, MYSTIC SHORES PROPERTY OWNERS ASSOCIATION (the

“Association”) is a Texas non-profit corporation. The Association has filed an appearance in this

case and may be served through its attorney of record.

JURISDICTION AND VENUE

6. Pursuant to the Texas Civil Practice and Remedies Code, jurisdiction and venue of

this case properly lies in Comal County, Texas, in that Comal County is the county where all or part

of the property made the basis of this cause is located.

INTRODUCTION/SUMMARY OF CASE

7. Mystic Shores is a residential subdivision with a property owners’ association and

deed restrictions. The Plaintiffs applied to the Association for approval to add or construct certain

improvements on their lot which are permitted by the applicable, enforceable deed restrictions

relating to their property. The Association denied Plaintiffs’ application in an arbitrary, capricious

and/or discriminatory manner in furtherance of no legitimate Association interest.

8. Plaintiffs seek relief herein so that they may simply construct the intended

improvements on their property and further seek reimbursement of all costs and attorney’s fees for

having to seek redress from a court of competent jurisdiction as a result of the Association’s bad

acts.

FACTS

9. On or about October 13, 2017, Plaintiffs became the owners of the following real

property in Comal County, Texas:

Lot 1830, Mystic Shores Unit Fourteen, a Subdivision in Comal

 County, Texas, according to the Map or Plat thereof recorded in
Volume 15, Pages 348-362, Map and Plat Records, Comal County,
Texas, also known as 341 Bosque Ridge, Spring Branch, Texas
78070 (the “Property”)

10. The Property is located in the Mystic Shores subdivision, which is a deed-restricted

development. The Property resides in Unit 14, which is a “neighborhood” within the greater Mystic

Shores development.

11. The Defendant Association is a “property owners’ association” as that term is defined

at TEX. PROP. CODE § 209.002(7) and therefore subject to the provisions of the Texas Residential

Property Owners Protection Act.

12. The Property is subject to certain recorded dedicatory instruments, including but not

limited to the following:

a. Declaration of Covenants, Conditions and Restrictions for Mystic Shores,

recorded August 14, 2002, under Comal County Clerk’s File No.
200206027138 (the “Declaration”);

b. Supplemental Declaration of Covenants, Conditions and Restrictions for

Mystic Shores Unit 14, recorded November 16, 2005, under Comal County
Clerk’s File No. 200506043503 (the “Supplement”);

13. In addition to their main residence and a garage for vehicles, Plaintiffs intend to

construct a workshop on the Property (the “Workshop”). Plaintiffs desire to construct the Workshop

prior to the other improvements, as the Workshop will be used in conjunction with the later

construction of the main residence. Plaintiffs submitted an application to the Association in order

to obtain approval for the Workshop (the “Application”)1.

14. Following Plaintiffs’ initial Application for the Workshop, the Association instructed

Plaintiffs to submit a request for a variance using a promulgated Association form. In an effort to

1
A true and correct copy of the application describing the Workshop is attached hereto as Exhibit A and
incorporated herein by reference.
appease the Association’s unreasonable request, Plaintiffs submitted said request for variance form

on or about November 27, 2017.

15. On January 15, 2018, the Association sent a letter to the Plaintiffs letting them know

their application for an “outbuilding” had been denied because the Association considered the

Workshop a “detached garage”. As a result, the Association indicated the Workshop must meet a

50% masonry requirement applicable to garages. The Association knows that the outbuilding applied

for by the Plaintiffs is not a garage–that in fact the Plaintiffs intend to build a garage for their

vehicles–but is nevertheless intent on subjecting certain masonry requirements on the Plaintiffs’

outbuilding, even though numerous similar outbuildings without the masonry requirements already

exist in the community and the recorded deed restrictions do not require the masonry features.

16. The Plaintiffs hired an attorney, who sent the Association a letter instructing it that

its analysis regarding the Application was incorrect. The Association responded by having its lawyer

send a letter back to the Plaintiffs indicating they would be sued if they constructed their Workshop.

17. The plain language of the dedicatory instruments applicable to Unit 14 of Mystic

Shores is clear that workshops are not subject to any 50% masonry requirement, as detailed herein

below.

18. Neither the Association nor its ACC had any reasonable basis for denying Plaintiffs’

application or preventing the Plaintiffs from building their Workshop.

Analysis of Association’s Governing Documents Under Chapter 209 of the Texas Property Code:

19. The Texas Property Code contains very specific provisions relating to how deed

restrictions can be amended if they apply to property governed by a property owners’ association that

has mandatory membership and mandatory assessments. The Association has mandatory

membership and mandatory assessments.

 20. The following terms relating to the governing documents of the Association are

defined at TEX. PROP. CODE § 209.002:

a. "Declaration" means an instrument filed in the real property records of a

county that includes restrictive covenants governing a residential subdivision;

b. "Dedicatory instrument" means each governing instrument covering the

establishment, maintenance, and operation of a residential subdivision. The
term includes restrictions or similar instruments subjecting property to
restrictive covenants, bylaws, or similar instruments governing the
administration or operation of a property owners' association, to properly
adopted rules and regulations of the property owners' association, and to all
lawful amendments to the covenants, bylaws, rules, or regulations.

c. "Restrictions" means one or more restrictive covenants contained or

incorporated by reference in a properly recorded map, plat, replat, declaration,
or other instrument filed in the real property records or map or plat records.
The term includes any amendment or extension of the restrictions.

d. "Restrictive covenant" means any covenant, condition, or restriction

contained in a dedicatory instrument, whether mandatory, prohibitive,
permissive, or administrative.

21. TEX. PROP. CODE § 209.0041 governs the amendment of “declarations”. Following

are pertinent portions of that statute [emphasis added]:

(b) This section applies to a residential subdivision in which property

owners are subject to mandatory membership in a property owners'
association.

(e) This section applies to a dedicatory instrument regardless of the

date on which the dedicatory instrument was created.

(f) This section supersedes any contrary requirement in a dedicatory

instrument.

(h) Except as provided by Subsection (h-1) or (h-2), a declaration

may be amended only by a vote of 67 percent of the total votes
allocated to property owners entitled to vote on the amendment of
the declaration, in addition to any governmental approval required by
law.

(h-1) If the declaration contains a lower percentage than prescribed

 by Subsection (h), the percentage in the declaration controls.

(h-2) If the declaration is silent as to voting rights for an amendment,

the declaration may be amended by a vote of owners owning 67
percent of the lots subject to the declaration.

22. The “declarations” promulgated and recorded by the developer/declarant of Mystic

Shores were the Declaration and the Supplement referenced herein above which were recorded in

2002 and 2005, respectively. Those documents both qualified as “declarations” because they were

recorded in the Comal records and they “include[d] restrictive covenants governing a residential

subdivision”.

23. The Declaration and Supplement both contained deed restrictions governing

“outbuildings” or “accessory structures”. The Declaration addressed same at Article IX, Section

9.04(b)(iv).

24. The Supplement applicable to Unit Fourteen contains more specific provisions

applicable to workshops. Article 3, Section 3.1 of the Supplement includes the following:
 25. Neither of the above deed restrictions contains any provision requiring a workshop

such as the one applied for by Plaintiffs to consist of 50% masonry. The provision in the Supplement

clearly only applies the masonry requirement to “detached garages”. The only requirement in the

deed restrictions for a workshop is that it must be built with new construction materials which cannot

be aluminum, asbestos, plywood, concrete block or vinyl siding.

26. If the Association’s board of directors or ACC wanted to impose a use restriction

upon Plaintiffs’ Property so that any structure–no matter what the stated or actual use by the

owners–having doors large enough to accommodate a vehicle is considered a “detached garage”, the

proper mechanism would be an amendment to the declaration–i.e. the Declaration and/or the

Supplement. The original declarant did just that when it promulgated and recorded the First

Amendment to the Supplemental Declaration of Covenants, Conditions and Restrictions for Mystic

Shores Unit Fourteen in 2009, amending an existing declaration provision relating to walls and

fences.

27. The current version of TEX. PROP. CODE § 209.0041(h), which sets forth how

“declarations” may be amended, has been in effect since September 1, 2015. According to

209.0041(h), the only way a declaration may be amended is by a vote of the members of the

Association–i.e. not by the board of directors. This is the case no matter what the instrument itself
says about amendment methods.

Improper Use of Site Design Guidelines:

28. Instead of putting the issue of detached garages and masonry to a vote of its members,

the Association decided instead in 2017 to circumvent the statutorily-required amendment process

by promulgating the “Amendments to Mystic Shores Architectural and Site Design Guidelines”,

recorded at Comal County Clerks’ File No. 201706030535 on June 27, 2017 (the “Guidelines

Amendment”). The board included the following provision in the Guidelines Amendment:

29. Thus the Association’s ACC and board of directors attempted to unilaterally impose

new and more restrictive use restrictions on Plaintiffs–i.e. a 50% masonry requirement on

improvements other than actual detached garages–through design guidelines rather than an

amendment to the declaration. They did this because they know that no such deed restriction

amendment would pass. It constitutes an impermissible overreach of authority by the Association

and a small faction of members attempting to impose their own views of how the subdivision should

be operated.

30. The original Declaration addressed the subject of site design guidelines at Article 9,

Section 9.3. It provided that the Declarant–not the Association–may prepare and adopt initial
“Design Guidelines”. The Declarant did so in August of 2005, but failed or refused to record them

in the Comal property records. The original site design guidelines contained no provision interpreting

a workshop as a detached garage simply because the structure included a large door.

31. Section 9.3 goes on to provide that after the original Design Guidelines are adopted

and after the development period is over, the ACC will have authority to amend the Design

Guidelines, but only to “.... remove requirements previously imposed or otherwise to make the

Design Guidelines less restrictive” [emphasis added].

32. The Association’s board of directors and ACC clearly breached Section 9.3 of

the Declaration by promulgating and recording an amendment to the site guidelines that is

more restrictive. The Guidelines Amendment also constitutes a clear breach of the declaration

amendment procedures set forth at TEX. PROP. CODE § 209.0041(h).

33. Even if the Court were to find that the Guidelines Amendment document was

enforceable, it would not apply to the Plaintiffs’ Application. The application form provided by the

Association asks an owner to select the following options under “Type of Construction or Use”: (a)

Barn, (b) Shed (c) Detached Garage, or (d) Other - Describe. Plaintiffs selected the “Other -

Describe” option and listed “workshop”. Plaintiffs further indicated the following use on the

application: “this will be used as a workshop for the homeowner to tinker.”

34. The Guidelines Amendment is very specific regarding which types of improvement

applications will be subject to the 50% masonry requirement–only those for a shed or a barn:

In some cases, an outbuilding application being submitted by the

owner as a shed, or a barn, may have door openings wide enough
(over 7 ft), and have an open area large enough (10' x 20' or large) to
allow passenger or other vehicles ... to be stored inside. In this
situation, if the outbuilding has the potential to store a vehicle, the
proposed outbuilding will be subject to the Unit’s DCCR
requirements for garages...
The drafter of the Guidelines Amendment used the term “workshops” elsewhere in the same section,

so the omission of the term “workshops” in the above provision alongside “shed” and “barn” is

material. Plaintiffs applied for a workshop, not a barn or shed.

Conclusion:

35. The Association breached both its Declaration and TEX. PROP. CODE § 209.0041(h)

by adopting the Guidelines Amendment in lieu of properly amending the Declaration and/or

Supplement and by using the Guidelines Amendment to deny Plaintiffs’ application. Neither the

Association’s board of directors nor its ACC has any authority to amend the site design guidelines

to make them more restrictive, as detailed herein above.

36. The Association has engaged in the arbitrary, capricious and/or discriminatory

application of its discretionary authority under its dedicatory instruments, and Plaintiffs intend to

demonstrate same by a preponderance of the evidence pursuant to TEX. PROP. CODE § 202.004(a).

The Association purports to characterize Plaintiffs’ intended Workshop as a detached garage despite

the fact that Plaintiffs clearly described the proposed structure as a “workshop” on Plaintiffs’

Application, rather than a “Detached Garage”, which was one of the options provided on the form.

It has done so despite allowing multiple other structures in the community which do not consist of

at least 50% masonry but contain doors or other openings large enough to fit a vehicle.

37. The Association’s declarations contain no restrictive covenants prohibiting or

restricting the workshop structure applied for by Plaintiffs.

38. In the alternative, the Association has waived and/or abandoned the provisions of its

dedicatory instruments cited by the Association in support of its (and/or its committee’s) disapproval

of Plaintiffs’ application. Multiple outbuildings or accessory structures exist in the Mystic Shores

community which are not composed of at least 50% masonry but have doors or openings large
enough for a vehicle.

39. The Association has materially breached its recorded restrictive covenants, for which

Plaintiffs seek damages, declaratory relief and injunctive relief, as set forth herein below. As a result

of the delay occasioned by the Association’s acts and/or omissions, the price of the materials

necessary to construct the improvement applied for by Plaintiffs has increased significantly. In

addition to the other relief requested herein, Plaintiffs seek recovery of the increased cost of said

materials.

RELIEF SOUGHT

40. All factual allegations in the preceding paragraphs shall be incorporated in each cause

of action listed herein below as though fully reproduced:

Cause of Action for Declaratory Judgments:

41. Plaintiffs seek the following declaratory judgments, in the alternative, pursuant to the

Uniform Declaratory Judgments Act:

a. The improvements sought in Plaintiffs’ Application are not prohibited by any

declaration applicable to Plaintiffs’ Property;

b. Plaintiffs are permitted to construct the Workshop described in their

Application pursuant to the dedicatory instruments applicable to the Property;

c. The denial by Defendant and/or its applicable committee of Plaintiffs’

Application was arbitrary, capricious and/or discriminatory.

d. The Guidelines Amendment, as applied to Plaintiffs and their Property,

constitutes an impermissible amendment of a declaration pursuant to TEX.

PROP. CODE § 209.0041.

e. The underlined provision of Section 7.01 of the Guidelines Amendment is

 void and unenforceable with regard to Plaintiffs and their Property.

f. The Guidelines Amendment, as applied to Plaintiffs and their Property,

constitutes a breach of Section 9.3 of the Declaration.

g. The Association has waived or abandoned the restrictions relied upon by it

(and/or its committee) as the basis for denying Plaintiffs’ Application.

Cause of Action for Breach of Restrictive Covenants:

42. The Association may only enforce those dedicatory instruments which: (1) are filed

of record in the county in which they are to be enforced, (2) have not been waived and/or abandoned

by the Association and (3) are not contrary to public policy. There are no recorded, enforceable deed

restrictions prohibiting the addition or construction of the Workshop applied for by Plaintiffs.

43. Defendant (and/or its applicable committee), in an arbitrary, capricious and/or

discriminatory manner, denied Plaintiffs’ application for a Workshop in violation of one or more of

the Association’s dedicatory instruments, causing damages to Plaintiffs, including but not limited

to the increased cost of materials necessary for the construction of the improvement applied for by

Plaintiffs.

44. Defendant (and/or its applicable committee) also breached Section 9.3 of the

Declaration by adopting, recording and attempting to enforce against Plaintiffs the Guidelines

Amendment, which attempts to make the Association’s design guidelines more restrictive.

ATTORNEY’S FEES AND COSTS

45. Plaintiffs seek recovery of all reasonable and necessary attorney’s fees and costs

incurred in obtaining the declaratory relief requested and deemed equitable and just, pursuant to TEX.

CIV. PRAC. & REM. CODE § 37.009. In the alternative, Plaintiffs seek reimbursement of costs and

reasonable and necessary attorney’s fees pursuant to TEX. PROP. CODE § 5.006. In the alternative,
Plaintiffs seek reimbursement of costs and reasonable and necessary attorney’s fees pursuant to TEX.

CIV. PRAC. & REM. CODE § 38.001 et seq.

REQUEST FOR DISCLOSURES

46. Pursuant to TEX. R. CIV. P. 194, each Defendant in this lawsuit is requested to

continue to timely disclose the information or material described in Rule 194.2.

RULE 193.7 NOTICE

47. Pursuant to TEX. R. CIV. P. 193.7, Plaintiffs hereby give actual notice that any and

all documents produced by any party in this cause of action will be used at any pretrial proceeding

and/or trial of this matter.

REQUEST FOR INJUNCTIVE RELIEF

48. As detailed herein above, the Association has breached its restrictive covenants and/or

applied its governing documents and/or engaged in acts and omissions in an arbitrary, capricious

and/or discriminatory manner as against the Plaintiffs. The Plaintiffs will suffer irreparable harm if

permanent mandatory injunctive relief is not granted by the Court after an evidentiary hearing or trial

on same. The Plaintiffs have rights under the Association’s governing documents which are being

violated by the Association and shall continue to be violated if the Association is not restrained

and/or forced to take certain acts as described herein.

49. In accordance with the above-requested declaratory judgments, the Court’s equitable

power and Section 37.011 of the Uniform Declaratory Judgments Act, the Plaintiffs request the

following injunctive relief:

a. The Association and/or its applicable committee shall approve the Plaintiffs’

November 2017 application for the Workshop.

b. The Association shall permit the Plaintiffs to construct the Workshop

 pursuant to the terms of their application for same.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Plaintiffs, ALISON MAILLET and SCOTT

WHATLEY, pray for judgment against Defendant, MYSTIC SHORES PROPERTY OWNERS

ASSOCIATION, as follows:

1. All actual damages through trial;

2. All injunctive relief described herein above;

3. All declaratory relief described herein above;

4. Costs and attorney’s fees, as described herein above;

5. Pre-judgment interest to the maximum extent allowed under Texas law;

6. Post-judgment interest;

7. Costs of Court; and

such other legal and equitable relief to which they show themselves justly entitled.

RESPECTFULLY SUBMITTED,

KATINE & NECHMAN L.L.P.

By: /s/ Neil H. McLaurin IV

NEIL H. MCLAURIN IV
State Bar No. 24007657
MITCHELL KATINE
State Bar No. 11106600
1834 Southmore Boulevard
Houston, Texas 77004
Telephone: (713) 808-1000
Telecopier: (713) 808-1107
nmclaurin@lawkn.com

ATTORNEYS FOR PLAINTIFFS

 CERTIFICATE OF SERVICE

I do hereby certify that on this the 11th day of July, 2019, in accordance with the Texas Rules
of Civil Procedure, a true and correct copy of the foregoing instrument has been forwarded to all
attorneys of record or parties pro se as follows:

VIA ELECTRONIC SERVICE:

Bradley E. Bartlett
Thornton, Biechlin, Reynolds & Guerra, LC.
100 N.E. Loop 410, Suite 500
San Antonio, Texas 78216-4741
bbartlett@thorntonfirm.com

/s/ Neil H. McLaurin IV

NEIL H. MCLAURIN IV