Preview
Cause No.
ASON MITHET AL In the County Court of
Plaintiff
Montgomery County Texas
RAND ARBOR
ROPERTY WNERS
SSOCIATION ET AL
Defendants.
Plaintiffs’ Original Petition & Application fora Temporary Restraining Order and
Injunctive Reliefet al.
Backdrop to this Litigation
January 31, 2019, Edward Griffith, Barbara Griffith, Todd Butaud and Rachelle Butaud
sued Defendant Grand Harbor Property Owners’ Association for claims related to negligence et al
cause number 19-02- 622, in the Judicial District of Montgomery County, Texas. The
underlying plaintiffs were represented by J. Randal Bays of The Bays Law Firm.” A jury rendered
a verdict in favor of the underlying Plaintiffs. Grand Harbor took an appeal. [See Ex. A].
Recently, Grand Harbor underwent a change in leadership The new board refuses to
disclose or comment on the ongoing appeal, and whether settlement has been reached regarding
the foregoing litigation This has caused concern over 281 property owners at Grand Harbor, of
the 880 residents. The restrictive covenants and bylaws of Grand Habor allow the property owners,
petition, to request removal of the directors. The property owners have had the requisite number
of petitions to remove the new leadership for over 2 months now. However, Grand Harbor’s new
leadership refuses to conduct a vote and continues to stall the same with pithy excuses. Thus, this
lawsuit is brought to have a court order Grand Harbor’s board to conduct a vote.
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Thus, Jason L. Smith and Macy L. Smith, Bradley and Megan Schaak, Michael and Dr.
Merissa Ferguson, Leslie Kuhlke, Harry and Margaret Schippers, and Adam N. Davis as residents
of Grand Harbor Property Owners Association, Plaintiffs” file this Original Petition,
Application for Ex Parte Temporary Restraining Order and Application for a Temporary
Injunctionand allege the following:
Discovery Plan
Plaintiffs intend to conduct discovery under Discovery Control Plan Level 2, per Rule
190.3 of the Texas Rules of Civil Procedure, and affirmatively plead that this suit is governed by
the expedited action process of Rule 169 because Plaintiffs requests injunctive relief and seek
monetary reliefof $250,000 and less.
Parties
Plaintiffs are residents of Montgomery County, Texas and may be served with legal papers
via the Undersigned
Defendants are as follows:
Defendant Michael Williams is the Vice President of the Grand Harbor Property Owner’s
association and may be served with process at: 18956 Freeport Drive Suite A, Montgomery,
Texas 77356 or anywhere he may be found. Plaintiffs request issuance of citation at this time.
Defendant Daisy Sue Horn of the Grand Harbor Property Owner’s association and may be
served with process at: 18956 Freeport Drive Suite A, Montgomery, Texas 77356 or anywhere
he may be found. Plaintiffs request issuance of citation at this time.
Defendant Grand Harbor Property Owner’s Association is a nonprofit located at
Freeport Drive Suite A, Montgomery, Texas 77356 and may be served via its Vice President
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Michael Williams at: 18956 Freeport Drive - Suite A, Montgomery, Texas 77356 or anywhere he
may be found. Plaintiffs request issuance of three citations at this time.
Iv. Agency
Unless otherwise stated, whenever it is alleged that Defendants committed an ” or an
“omission,” failed to perform an act, made a representation or a statement, or failed to make a
disclosure, it is alleged that they acted or failed to act through their authorized agents, servants,
employees or representatives acting with either expressed, implied, apparent, direct and/or
ostensible authority, or they subsequently ratified these acts, their acts, failures to act,
representations, statements or conduct.
Jurisdiction and Venue
This Court has subject matter and personal jurisdiction over the claims in this suit, and
venue is proper in this county, because all the allegations and actions that form the basis of this
suit occurred in this county, and all real property subject to this dispute is in Montgomery County,
Texas. As such, venue is mandatory in Montgomery County, Texas.
VI. Facts
Over the course of the last three months, several property owners at Grand Harbor have
ecome increasingly frustrated because of the new leadership at Grand Harbor, consisting of
Michael Williams, and Daisy Sue Horn, only.
This frustration has grown for several reasons:
First, the members of the new board refuse to hold a vote to remove them from
leadership Second, the new board refuses to keep the property owners reasonably informed about
the ongoing litigation which is on appeal regarding the 2019 lawsuit, as recited above.
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Last, because of the obvious financial concerns for all the property owners, the new board
has made their message clearthey are inclined to settle the matter regarding the 2019 litigation,
out of pocket, and to the detriment of the homeowners at Grand Harbor.
That is, the new board desires to pay cash settlements out of the Grand Harbor accounts to
settle the lawsuit which is currently on appeal. This is a difficult pill to swallow because the
property owners believe that there are well merited defenses to the jury’s verdict, and it is possible
that the jury’sverdict may be overturned at least on some grounds.
If the litigation is resolved through cash settlements to the underlying plaintiffs, Grand
Harbor, and essentially the property owners of Grand Harbor, will have to pay over
as is reflected the jury’s verdict.
In addition, the property owners will have to pay over in attorney’s fees awarded
to the underlying plaintiffs’ attorneys, Randal Bays from The Bays Law Firm.” [See Ex. A] [See
Ex. B]. This is despite the fact that in the last 6 months, the board has made the property owners
aware that they have incurred over in attorneys’ fees from their current lawyers, at Roberts
Markel. The property owners do not exactly know why they must pay over $40,000 to the law firm
of Roberts Markel, and Williams and Horn refuse to disclose any updates with the foregoing
litigation or reasons why the attorneys’ fees were incurred Williams and Horn invoked the
“attorney client privilege.”
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Removal is Allowed by the Bylaws.
The bylaws of Grand Harbor provide the measure for the removal of directors, for cause or
no cause. See Ex. C]. First of all, the bylaws have the effect of restrictive covenants, which are
binding on Grand Habor and its property owners.
Section 1.03 Definitions
Except as otherwise provided herein, the words used in these Bylaws shall have the same
meaning as set forth in that Declaration of Covenants Conditions and Restrictions of
Grand Harbor Section 1, recorded in the Montgomery County, Texas public records under
Clerk's File No. 99029326 (said Deciaration, as amended, renewed, or extended from
time to time), together with any and all Declarations filed of record submitting additional
property to the jurisdiction of the Association, (collectively, the "Declaration"). For clarity,
the words "Owner" and "Member" shall have the same meaning for purposes of these
Bylaws. These definitions include but are not limited to:
Further, the bylaws clearly lay out the procedure for removal of directors.
The bylaws provide for removal of a director, with or without cause, upon the receipt of
25% of Grand Harbor’s eligible votes.
G. Removal of a Director. Any Director may be removed, with or without cause,
at a properly convened Special Meeting at which a quorum is present, by the
majority vote of Members present by ballot, in person, by proxy or power of
attorney at said meeting. The Board will hold such a Meeting upon receipt of a
petition for removal of the Director signed by 25% of the Association's eligible
votes. The petition for removal can be initiated by either the Association or the
Currently, there are 1000 lots in Grand Habor where a house has been built or can be built
However, only 880 lots actually have a home. Each home gets one vote.
Currently, there are 281 petitions signed to hold a vote to remove Williams and Horn.
That means that the property owners roughly have 1/3 of the votes needed, or 32%
needed, a healthy 7% above the required 25% to hold a special vote for removal of the directors.
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All petitions requesting the special vote could not be clearer, and seek the same relief
Petition to the Board of Directors
Of the Grand Harbor Property Owners Association
To Convene a Meeting of the Membership
In accordance with the Grand Harbor Property Owners Association Fifth Amended and Restated Bylaws
Adopted on November 29, 2020 (the “Bylaws"), Article Ill, Section 3.01.G. Removal of a Director, this petition
requests the Board of Directors (the “Board”) convene a Meeting of the Members for the purpose of voting
on the removal of Sue Home and Mike Williams as Directors of the Board of the Grand Harbor Property
Owners Association (the "POA")
Both Sue Horne and Mike Williams have used an overwhelming amount of proxy votes that were turned in
to vote on themselves. Although this was technically allowed it did not represent the true voting members
in Grand Harbor and Harbor side. If they wish to run again in the new election, we hope that the Election
Committee will remove the ability to use proxy votes in lieu of ballots for voting purposes.
\\S3 K 2é INOAS SAR Dy
1 ar the (circle one) owner of the property located at 11588 Renaissance Dr, Montgomery, TX 77356, in
the Grand Harbor/Harbor Side Subdivision. Therefore, | am a Member of the Grand Harbor Property Owners
Association as provided in the Amended & Restated Certificate of Formation Article V and therefore entitled to.
sign this petition
Attached herein are the declarations of Plaintiffs, who, over the course of the last several
months have urged a vote to have these directors removed. See Ex. D]. But the directors refuse to
hold the vote, largely voicing silly little excuses to avoid their own removal.
The petitions for removal are attached herein as well. [See Ex. E].
Vil. Applicable Law
“Injunctive relief ordinarily may only be granted upon a showing of (1) the existence of a
wrongful act; (2) the existence of imminent harm; (3) the existence of irreparable injury; and (4)
the absence of an adequate remedy at law.” Park v. Escalera Ranch Owners’ Ass'n, Inc., 457
S.W.3d 571, 600 (Tex. App.Austin 2015, no pet.). However, property owner’s association cases
are different as they provide for exceptions to that rule.
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In an action to “enforce restrictive covenants [a Plaintiff] is not required to prove actual
damages in order to obtain injunctive relief. All that is needed is a “distinct or substantial breach
of the restrictions be shown,” and “the courts will enjoin the violation even though there is no
proof of actual damages or irreparable injury.” Gunnels Woodland Hills Cmty. Ass'n
S.W.2d 334, 337 (Tex. App.Houston [1st Dist.] 1978, no writ) (emphasis added) see also Park
457 S.W.3d at 600 (“For restrictive covenant cases, however, there is a well settled exception to
the general rule: when a substantial breach of the covenant is shown, it is not necessary to show
the existence of any particular amount of damages or to show that the injury will be irreparable.”)
Jennings v. Bindseil, 258 S.W.3d 190, 198 (Tex. App.Austin 2008, no pet.) Gigowski v. Russell
718 S.W.2d 16, 21 (Tex. App.Tyler 1986, writ ref’d n.r.e.). As such, equitable relief, such as a
TRO or injunction is proper under these facts.
VIII. Causes of Action
Violations of the Bylaws, restrictive Covenants - Action to Enforce Bylaws.
“Restrictive covenants are subject to the general rules of contract construction.” Daniels v.
Balcones Woods Club, Inc., No. 03-03-00310-CV, 2006 WL 263589, at *5 (Tex. App.Austin
Feb. 2, 2006, pet. denied). “The law recognizes the right of parties to contract with relation to
property as they see fit, provided they do not contravene public policy and their contracts are not
otherwise illegal.” Tarr v. Timberwood Park Owners Ass'n, Inc., 556 S.W.3d 274, 279 (Tex. 2018).
In this case, Grand Harbor, via its representatives, in violation of the covenants and
bylaws bargained for because they refuse to engage in an otherwise unambiguous provision of the
bylaws, aside from all other conditions precedent being met.
Accordingly, Grand Harbor is in breach and a court order is necessary to enforce the
bylaws.
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Specific Performance.
“Specific performance is an equitable remedy that may be granted upon proof of a breach
of contract.
A party seeking specific performance must plead and prove ‘(1) compliance with the
contract including tender of performance unless excused by the defendant's breach or repudiation
and (2) the readiness, willingness, and ability to perform at relevant times.” Coyle v. Coyle Family
Farm, Inc., No. 04 00133 CV, 2017 WL 4801680, at *3 (Tex. App.San Antonio Oct. 25,
2017, no pet.).
“Tn determining whether a party is entitled to specific performance via injunctive relief, we
consider whether (1) an adequate remedy at law exists, (2) present performance is possible, (3) the
agreement contains precise terms capable of enforcement, and (4) the injunction comports with
the terms of the agreement.” L Series, L.L.C. v. Holt, 571 S.W.3d 864, 876 (Tex. App.Fort Worth
2019, pet. denied).
“Tt is well established that a court of equity will only order specific performance when
present performance is possible.” Canteen Corp. v. Republic of Tex. Props., 773 S.W.2d 398, 401
(Tex. App.Dallas 1989, no writ).
Here, the facts are easy. The court should order specific performance with the bylaws and
order that Grand Harbor, via its board, set a date and time when the property owners can have a
vote to remove Williams and Horn, preferably 14 days after the court signs an order
Application for Temporary Restraining Order
“The purpose of a TRO is to preserve the status quo and it restrains a party from acting
only during the pendency of a motion for temporary injunction.” Tex. Parks & Wildlife Dep't v.
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RW Trophy Ranch, Ltd., No. 05 CV, 2022 WL 1314692, at *1 (Tex. App.Dallas May
3, 2022, pet. denied).
Relief Sought
Plaintiffs request the following: A court order ordering: Defendant Grand Harbor to hold a
vote on theremoval of Williams and Hornewith specific dates and times to be determined
nder these facts, Plaintiffs are entitled to a temporary restraining order and injunction
becausePlaintiffs seek relief which requires the restraint of some act prejudicial to the applicant
includingDefendants continue refusal to hold a vote for their removal.
Further, Defendants are parties who are about to allow, and have been allowing, the
performance of an act relating to the subject of pending litigation, in violation of the rights of
Plaintiffsincluding the failure to hold the special vote for their removal.
Under these facts, Plaintiffs have indisputably shown evidence that shows a breach of
contract. See Ex. E].
Plaintiffs need only plead and present evidence to support one cause of action to establish
a probable right of recovery. Zurovec v. Rueben, No. 09 CV, 2022 WL 3650128, at *7
(Tex. App.Beaumont Aug. 25, 2022, no pet.) Here, Plaintiffs have done just that, if not more.
As such, a temporary restraining order should be put in place by the court consistent with
the relief sought in this petition
Application for Temporary Injunction
Plaintiffs incorporate the facts and allegations above fter the Court enters a temporary
restraining order, it should hold a hearing to issue a temporary injunction ordering thesame.
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Plaintiffs ask the Court to set its application for a temporary injunction for hearing and,
after the hearing, issue a temporary injunction against Defendants consistent with the temporary
restraining order above, which Plaintiffsincorporate by reference herein.
Jury Demand
Plaintiffsdemand a jury trial and tender the appropriate fee with this petition.
VI. Conditions Precedent
Any and all conditions precedent to Plaintiffs’ recovery have occurred or have been
satisfied, waived, or been excused as a result of the conduct of Defendant
Conclusion & Prayer for Relief
For these reasons, Plaintiffs ask this Court to issue citation for efendants to appear and
answer, that it enter a ex parte temporary restraining order and, at some point in the next 30 days,
atemporary injunction ordering Defendants to hold the vote for the removal of Williams and Horn
within 7 days after the order is signed Plaintiffs ask for all other relief at law or in equity which
they show themselvesto be entitle
Respectfully submitted,
RT GUILAR AW IRM
BY: /s/ Art Aguilar
Art Aguilar
SBN: 24091525
Waterpoint on Lake Conroe
Suite
Montgomery, 77356
art@aguilar trial law.com
www.aguilar trial law.com
P: (713) 992-1104
F: (346) 502-3561
Veteran Owned Business*
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CAUSE NO. 19-02-01622
EDWARD GRIFFITH, BARBARA § 457TH JUDICIAL DISTRICT
GRIFFITH, TODD BUTAUD, §
and RACHELLE BUTAUD
Vv.
GRAND HARBOR PROPERTY §
OWNER’S ASSOCIATION § MONTGOMERY COUNTY, TEXAS
FINAL JUDGMENT
On March 21, 2022, the Court called the above numbered and styled cause to
trial. Edward Griffith, Barbara Griffith, Todd Butaud, and Rachelle Butaud appeared
in person and through their attorneys, J. Randal Bays and Stephanie Bryant, and
announced ready. Grand Harbor Property Owner's Association appeared through its
representative, B. Kevin Smith, and its attorneys, Charles Melvin Kibler, Jr., Wesson
H. Tribble, Steven C. Earl, and James C. Marrow, and announced ready. A jury of
twelve citizens and one alternate citizen of Montgomery County, Texas was impaneled
and sworn, and the case proceeded to trial.
On March 24, 2022, following the conclusion of the evidence and after arguments
of counsel, the Court submitted its instructions, definitions, and questions to the jury
(the “Charge”). The same day, the jury answered the questions in the Charge, which
the Court received, filed, and made of record (the “Verdict”). In pertinent part, the jury
found as follows:
QUESTION 1.
Did Grand Harbor Property Owners’ Association fail to comply with its
obligation to provide for the maintenance, repair, preservation, upkeep, and protection
of the common areas, assets, and properties of the subdivision?
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Answer "yes" or "no".
ANSWER:_YES
QUESTION 2.
What sum of money, if any, if paid now in cash, would fairly and reasonably
compensate the Plaintiffs for their damages, if any, that resulted from such failure to
comply?
Consider the following elements of damages, if any, and none other.
1. The reasonable and necessary cost to repair the Drainage Easement.
Do not add any amount for interest on damages, if any.
Answer separately in dollars and cents for damages, if any, for the Plaintiffs listed
below.
ANSWER for Griffiths: $65.294.12
ANSWER for Butauds: $50,218.59
QUESTION 3.
What is a reasonable fee for the necessary services of the Plaintiffs' attorneys
in this case, as stated in dollars and cents?
Answer with an amount, if any, for each of the following in dollars and cents:
For representation through trial: $81,791.17
For a motion for judgment non obstante verdicto: $1,450.00
For a motion for new trial: ..........
0.0.00 e ce eee eee $3,050.00
For an entry of final judgment: $1,450.00
For briefing an appeal to the Court of Appeals: $10,000.00
For oral argument at the Court of Appeals: $5,000.00
For preparing, or responding to, a petition for
review to the Supreme Court of Texas: ...........0..00
eee $5,000.00
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For full briefing in the Supreme Court of Texas: $7,500.00
For oral argument to the Supreme Court of Texas: $5,000.00
At the conclusion of the Court reading the Verdict, Edward Griffith, Barbara
Griffith, Todd Butaud, and Rachelle Butaud moved that the Court accept the Verdict,
which the Court granted. Based upon the Verdict, the Court renders judgment in favor
of Edward Griffith, Barbara Griffith, Todd Butaud, and Rachelle Butaud.
It is ORDERED, ADJUDGED, and DECREED that Edward Griffith and
Barbara Griffith recover from Grand Harbor Property Owner’s Association their
economic damages in the sum of $65,294.12, for which let execution issue. It is further
ORDERED, ADJUDGED, and DECREED that Edward Griffith and Barbara Griffith
recover from Grand Harbor Property Owner’s Association interest on the sum awarded
in this paragraph beginning on the date of this Final Judgment at the rate of 5.00% per
annum, compounded annually, for which let execution issue.
It is ORDERED, ADJUDGED, and DECREED that Todd Butaud and Rachelle
Butaud recover from Grand Harbor Property Owner’s Association their economic
damages in the sum of $50,218.59, for which let execution issue. It is further
ORDERED, ADJUDGED, and DECREED that Todd Butaud and Rachelle Butaud
recover from Grand Harbor Property Owner's Association interest on the sum awarded
in this paragraph beginning on the date of this Final Judgment at the rate of 5.00% per
annum, compounded annually, for which let execution issue.
It is ORDERED, ADJUDGED, AND DECREED that Edward Griffith and
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Barbara Griffith recover from Grand Harbor Property Owner’s Association
prejudgment interest through March 31, 2022 in the sum of $14,498.87, plus additional
prejudgment interest at the rate of $8.94 per day beginning on April 1, 2022 and
ending on the day preceding the day this Final Judgment is signed, for which let
execution issue. It is further ORDERED, ADJUDGED, and DECREED that Edward
Griffith and Barbara Griffith recover from Grand Harbor Property Owner’s Association
interest on the sum awarded in this paragraph beginning on the date of this Final
Judgment at the rate of 5.00% per annum, compounded annually, for which let
execution issue.
It is ORDERED, ADJUDGED, AND DECREED that Todd Butaud and Rachelle
Butaud recover from Grand Harbor Property Owner's Association prejudgment interest
through March 31, 2022 in the sum of $11,151.28, plus additional prejudgment interest
at the rate of $6.88 per day beginning on April 1, 2022 and ending on the day preceding
the day this Final Judgment is signed, for which let execution issue. It is further
ORDERED, ADJUDGED, and DECREED that Todd Butaud and Rachelle Butaud
recover from Grand Harbor Property Owner’s Association interest on the sum awarded
in this paragraph beginning on the date of this Final Judgment at the rate of 5.00% per
annum, compounded annually, for which let execution issue.
It is further ORDERED, ADJUDGED, and DECREED that Edward Griffith,
Barbara Griffith, Todd Butaud, and Rachelle Butaud have and recover from Grand
Harbor Property Owner’s Association their attorney’s fees for the trial of this Cause in
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the sum of $81,791.17 plus an additional $1,450.00 for the preparation of their Motion
for Entry of Judgment and this Final Judgment, for both of which let execution issue.
It is further ORDERED, ADJUDGED, and DECREED that Edward Griffith, Barbara
Griffith, Todd Butaud, and Rachelle Butaud recover from Grand Harbor Property
Owner’s Association interest on the sums awarded in this paragraph beginning on the
date of this Final Judgment at the rate of 5.00% per annum, compounded annually, for
which let execution issue.
In the event Grand Harbor Property Owner’s Association files a Motion for
Judgment Non Obstante Verdicto (the “JNOV”) which the Court does not grant, it is
ORDERED, ADJUDGED, and DECREED that Edward Griffith, Barbara Griffith, Todd
Butaud, and Rachelle Butaud recover from Grand Harbor Property Owner’s
Association their attorney’s fees for dealing with the JNOV in the amount of $1,450.00.
It is further ORDERED, ADJUDGED, and DECREED that Edward Griffith, Barbara
Griffith, Todd Butaud, and Rachelle Butaud recover from Grand Harbor Property
Owner’s Association interest on the sum awarded in this paragraph beginning on the
date the Court disposes of the JNOV at the rate of 5.00% per annum, compounded
annually.
In the event Grand Harbor Property Owner’s Association files a Motion for New
Trial (the “MNT”) which is overuled, it is ORDERED, ADJUDGED, and DECREED
that Edward Griffith, Barbara Griffith, Todd Butaud, and Rachelle Butaud recover
from Grand Harbor Property Owner's Association their attorney’s fees for dealing with
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the MNT in the amount of $3,050.00. It is further ORDERED, ADJUDGED, and
DECREED that Edward Griffith, Barbara Griffith, Todd Butaud, and Rachelle Butaud
recover from Grand Harbor Property Owner’s Association interest on the sum awarded
in this paragraph beginning on the date the MNT is overruled at the rate of 5.00% per
annum, compounded annually.
In the event of an appeal of this Final Judgment to the Court of Appeals in
which Edward Griffith, Barbara Griffith, Todd Butaud, and Rachelle Butaud prevail,
itis ORDERED, ADJUDGED, and DECREED that Edward Griffith, Barbara Griffith,
Todd Butaud, and Rachelle Butaud recover from Grand Harbor Property Owner’s
Association their attorney's fees for said appeal in the sum of $10,000.00, and if oral
argument occurred in the Court of Appeals, that Edward Griffith, Barbara Griffith,
Todd Butaud, and Rachelle Butaud recover from Grand Harbor Property Owner’s
Association their attorney's fees for oral argument in the sum of $5,000.00. It is
further ORDERED, ADJUDGED, and DECREED that Edward Griffith, Barbara
Griffith, Todd Butaud, and Rachelle Butaud recover from Grand Harbor Property
Owner’s Association interest on the sum or sums awarded in this paragraph beginning
on the date the Court of Appeals issues its judgment at the rate of 5.00% per annum,
compounded annually. However, should Edward Griffith, Barbara Griffith, Todd
Butaud, and Rachelle Butaud prevail in the Court of Appeals, but should the Supreme
Court of Texas reverse the decision of the Court of Appeals, it is further ORDERED,
ADJUDGED, and DECREED that Edward Griffith, Barbara Griffith, Todd Butaud,
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and Rachelle Butaud shall not recover the fees to which he would otherwise be entitled
to under this paragraph.
In the event the Supreme Court of Texas is requested to review this case, and
in the event Edward Griffith, Barbara Griffith, Todd Butaud, and Rachelle Butaud
prevails in the Supreme Court of Texas, it is ORDERED, ADJUDGED, and DECREED
that Edward Griffith, Barbara Griffith, Todd Butaud, and Rachelle Butaud recover
from Grand Harbor Property Owner’s Association their attorney’s fees in the sum of
$5,000.00 for the Petition for Review stage in the Supreme Court of Texas, if the
Supreme Court of Texas requests Briefing, it is ORDERED, ADJUDGED, and
DECREED that Edward Griffith, Barbara Griffith, Todd Butaud, and Rachelle Butaud
recover from Grand Harbor Property Owner's Association their attorney’s fees in the
sum of $7,500.00 for the Briefing stage in the Supreme Court of Texas, and if the
Supreme Court of Texas requests Oral Argument, it is ORDERED, ADJUDGED, and
DECREED that Edward Griffith, Barbara Griffith, Todd Butaud, and Rachelle Butaud
recover from Grand Harbor Property Owner's Association their attorney’s fees in the
sum of $5,000.00 for the Oral Argument stage in the Supreme Court of Texas. It is
further ORDERED, ADJUDGED, and DECREED that Edward Griffith, Barbara
Griffith, Todd Butaud, and Rachelle Butaud recover from Grand Harbor Property
Owner’s Association interest on the sum or sums awarded in this paragraph beginning
on the date the Supreme Court of Texas disposes of the proceedings before it at the rate
of 5.00% per annum, compounded annually.
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It is ORDERED, ADJUDGED, and DECREED that Edward Griffith, Barbara
Griffith, Todd Butaud, and Rachelle Butaud recover from Grand Harbor Property
Ownevr’s Association their taxable court costs. It is further ORDERED, ADJUDGED,
and DECREED that Edward Griffith, Barbara Griffith, Todd Butaud, and Rachelle
Butaud recover from Grand Harbor Property Owner's Association interest on the sums
awarded in this paragraph beginning on the date of this Final Judgment at the rate
of 5.00% per annum, compounded annually, for which let execution issue.
It is further ORDERED, ADJUDGED, and DECREED that all writs to enforce
this Final Judgment shall issue.
Any other relief requested by a party to this action that is not expressly given
in this Final Judgment is denied. This Final Judgment finally disposes of all parties
and all claims, and is appealable.
Dated 41112022 4:01:10 PM
Cauge J
ee
THE HONORABLE VINCENZO J. SANTINI,
JUDGE PRESIDING
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J. RandalBays
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4th of April, 2022
CAUSE NO. 19-02-01622
EDWARD GRIFFITH, BARBARA IN THE DISTRICT COURT OF
GRIFFITH, TODD BUTAUD, and
RACHELLE BUTAD
MONTGOMERY COUNTY, TEXAS
GRAND HARBOR PROPERTY
OWNER’S ASSOCIATION 457TH JUDICIAL DISTRICT
DEFENDANT’S MOTION FOR NEW TRIAL
Pursuant to Rules 306a, 315, 316, 320, 321, 324, and 329b of the Texas Rules of
Civil Procedure, and Rule 26.1(a)(2) of the Texas Rules of Appellate Procedure, Defendant
Grand Harbor Property Owner’s Association (“GHPOA”) asks this Court to grant a new
trial, or a substantial remittitur, in the event that the Court does not render judgment in
favor of Defendant on all elements of the Plaintiffs’ claims against GHPOA. “A trial
court’s plenary jurisdiction gives it not only the authority but the responsibility to review
trial order upon proper motion.” Jn re Baylor Med. Ctr. at Garland, 280 S.W.3d
227, 231 (Tex. 2008) (orig. proceeding).
A New Trial Is Warranted Because of the Harmful Admission of Irrelevant
Evidence about Other Incidents and Failure to Grant a Mistrial.
Evidence about other incidents was irrelevant and should not have been
admitted without a predicate showing of similarity.
Over Defendant’s objection, the Court permitted Plaintiffs to introduce large
amounts of evidence about GHPOA’s unrelated drainage projects and handling of other
drainage claims by homeowners other than the Plaintiffs. Such evidence was irrelevant
and unfairly prejudicial to Defendant, and it should not have been admitted.
1
This is, and always has been, a case about GHPOA’s alleged breach of
restrictive covenants. Specifically, Plaintiffs alleged that GHPOA failed to comply with
obligations in the restrictive covenants, Articles of Incorporation, and bylaws,
by failing to maintain and/or repair a drainage system contained on an intraplot easement
between Plaintiffs’ properties and failing to repair a bulkhead located on the Griffiths’
ty. Plaintiffs alleged (erroneously) that each of these documents created a contract
between Plaintiffs and GHPOA and that GHPOA breached those contracts.
always has been about those alleged contracts and the parties’ contractual duties,
if any, arising from one or more of those documents.
However, Plaintiffs’ factual case to the jury was constructed around trying
to prove that Plaintiffs were treated differently than other homeowners who may have had
drainage claims. But as Defendants arguedand as the evidence demonstratedthe
circumstances of other homeowners’ drainage claims were dissimilar from the Plaintiffs’
, and such evidence is therefore inadmissible.
Texas law is clear that evidence about other acts or incidents involving
defendant is irrelevant and therefore inadmissible on the issue of whether the defendant
was liable in doing or not doing a particular act. See, e.g., Reynolds & Huff v. White, 3
S.W.2d 923, 930 (Tex. Civ. App. Tyler 1964, no writ (“It has long been a settled rule in
Texas that evidence of similar accidents is inadmissible on the issue of whether a party has
been negligent in doing or not doing a particular thing.”). Before such evidence may be
admitted, the proffering party first must lay a predicate that such other acts “occurred under
reasonably similar but not necessarily identical circumstances.” Missouri Pac. R.R. Co. v.
, 563 S.W.2d 233, 236 (Tex. 1978). That is, “{ajn unrelated incident may be
relevant and admissible if it and the incident involved in the lawsuit occurred under
reasonably similar circumstances, the two incidents are connected in a special way, or the
incidents occurred by means of the same instrumentality.” Columbia Med. Ctr. Subsidiary,
L.P. vy. Meier, 198 S.W.3d 408, 41112 (Tex. App. Dallas 2006, pet. denied) see
Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 34041 (Tex. 1998) (“Evidence
of earlier accidents that occurred under reasonably similar but not necessarily identical
circumstances is admissible.”’).
s’ burden, as the proponent of this evidence, to first lay a
predicate showing that other incidents were reasonably similar to the incident made the
basis of thi See Meier, 198 S.W.3d at 412 (“The burden to show the incidents are
reasonably similar, but not necessarily identical, is on the proponent of the evidence.”);
Beavers v. Northrop Worldwide Aircraft Servs., Inc., 821 S.W.2d 669, 677 (Tex. App.
illo 1991, writ denied) (“For the testimony to be admissible, Northrop was required
to lay a predicate that the bearing failures occurred under reasonably similar, but not
necessarily identical, circumstances.”’); Z Mart Stores, Inc. v. Terry , 794 S.W.2d 63, 65
(Tex. App.Texarkana 1990, writ denied) (“[Plaintiff] was required to lay a predicate
showing that the accidents occurred under reasonably similar circumstances. Reasonably
similar circumstances generally means the same type of occurrence.”). It is only
predicate has been laid that evidence about other incidents may be admitted.
Snider Indus., 604 S.W.2d 341, 345 (Tex. Civ. App.—Texarkana 1980, writ ref’d n.r.e.).
Plaintiffs did not lay the evidentiary predicate necessary to admit
evidence about GHPOA’s other drainage projects or handling of drainage claims by other
homeowners. Accordingly, such evidence should not have been admitted. ee
821 S.W.2d at 678 (“In summary, we agree with appellants that no predicate of substantial
similarity was laid and the trial court erred in admitting the evidence.”);
378 S.W.2d at 93031 (holding evidence about other acts was inadmissible where
proffering party offered no evidence that other acts were reasonably similar); see also
Molina vy. Hurricane Harbor, L.P., No. 12 CV, 2017 WL 2464708, at *2 (Tex.
Tyler June 7, 2017, no pet.) (mem. op.) (holding trial court correctly excluded
evidence where proffering party failed to satisfy her burden of demonstrating similarity).
Instead, because such evidence was admitted without Plaintiffs’ first laying
an evidentiary predicate of similarity, effectively the burden was improperly shifted to
Defendant to have to prove dissimilarity.What resulted was precisely what defense
counsel predicted during pretrial: instead of defending its conduct in this breach
case, GHPOA was forced to have to try several other claims at once.The
admission of this evidence therefore harmed
the erroneous admission of this evidence was harmful to GHPOA
because the jury was encouraged by Plaintiffs to find GHPOA liable for breach of contract
GHPOA supposedly treated Plaintiffs differently than it had other homeowners.
GHPOA preserved its objection to such evidence on relevancy grounds by seeking and obtaining
a running objection to all evidence about other incidents. See Meier, 198 S.W.3d at 411
(confirming that inadmissibility of other incidents is based upon relevancy rounds
During closing argument, Plaintiffs’ counsel specifically told the jury to answer Question
1 “Yes” because “they didn’t fix ours but they fixed every other property owner’s
easements” (or words substantially to that effect). Then, after detailing the Plaintiffs’
requested damages, Plaintiffs’ counsel again argued that GHPOA did not pay for Plaintiffs’
property damages “only because John Wathen hates Ed Griffith because he helped Sue
Horne” with her claim for drainage repairs (or words substantially to that effect) The jury
was invited to, and probably did, reach an improper verdict based on improperly admitted
Because evidence was improperly admitted was harmful to Defendant,
probably caused the rendition of an improper a newtrial should be granted.
A mistrial should have been granted after Plaintiffs’ stated basis for
admission of evidence about other homeowners’ claims was revealed to
be a ruse.
During pretrial, Plaintiffs’ sole stated basis for admission of evidence about
incidents involving GHPOA was based upon Plaintiffs’ pending claims for
negligence and exemplary damages. Specifically, Plaintiffs’ counsel argued such evidence
was relevant to “and highly probative” about the question of exemplary damages because
the jury, in passing on the question of exemplary damages, should consider the Defendant’s
history of paying other homeowners’ claims(or so the argument went).
However, Plaintiffs did not have a viable claim for negligence or exemplary
, and they knew it. Where, as here, the claimed loss or damage relates only to the
subject matter of the alleged contract, the plaintiffs action sounds only in contract, not tort.
See Med. City Dallas, Ltd. v. Carlisle Corp., 251 S.W.3d 55, 61 (Tex. 2008). As the Texas
Supreme Court has explained:
The nature of the injury most often determines which duty or duties are
When the injury is only the economic loss to the subject of a
contract itself, the action sounds in contract alone. injury was
that the house they were promised and paid for was not the house they
This can only be characterized as a breach of contract, and breach
of contract cannot support recovery of exemplary damages.
Jim Walter Homes, Inc. v. Reed, 711 S.W.2d 617, 618 (Tex. 1986).
Similarly, whether a claim sounds in contract or in tort depends upon the
nature of the defendant’s alleged duty:
If the defendant’s conduct . . . would give rise to liability independent of the
contract exists between the parties, the plaintiff's claim may also
sound in tort. Conversely, if the defendant’s conduct . . . would give rise to
liability only because it breaches the parties’ agreement, the plaintiff's claim
ordinarily sounds only in c
Sw. Bell Tel. Co. v. DeLanney, 809 S.W.2d 493, 495 (Tex. 1991); see DeWitt Cty. Elec.
op., Inc. v. Parks, 1 S.W.3d 96, 105 (Tex. 1999).
A review of Plaintiffs’ operative pleading confirms that GHPOA’s only
alleged duties arise from the restrictive covenants, not from some separate tort duty.
Plaintiffs’ Second Amended Petition alleges, in its “Negligence” section:
Pleading further and in the alternative, the POA owes a duty to Plaintiffs
under its articles of incorporation, the restrictive covenants for Grand
Harbor Section 3 and its bylaws to maintain the drainage system located in
the Drainage Easement between the Griffith Tract and the Butaud Tract. The
POA was negligent by breaching the duties it owed to Plaintiffs which were
ate cause of Plaintiffs’ damages:
Failing to exercise the degree of care required of it by the restrictive
covenants for Grand Harbor, Section 3;
Failure to exercise the degree of care required of it by the POA’s articles of
incorporation; and/or
o exercise the degree of care required of it by the POA’s bylaws
Plaintiffs’ Second Amended Original Petition, at 8 (emphases added). For these reasons,
Plaintiffs have never had viable tort claim against GHPOA.
Knowing they did not have viable claims for negligence and/or exemplary
damages, Plaintiffs did not develop those tort claims. Plaintiffs’ counsel Bays testified that
only a “very small portion” of fees related to Plaintiffs’ tort claims; that no discovery was
conducted on their tort claims; and their total work on Plaintiffs’ tort claims was limited to
$1,220 (as compared with the $81,791.17 requested from the jury).
Plaintiffs’ tort claims were not brought in good faith. That conclusion
follows from the above and from the fact that, immediately after using their pending tort
claims as a Trojan Horse to smuggle in large amounts of inadmissible evidence about other
incidents, Plaintiffs immediately nonsuited their tort claims after completi the direct
examination of their first witness, Ed Griffith, who was allowed to testify at length about
other drainage projects and other homeowners’ claims.
Defendants promptly moved for a mistrial at the very next break, correctly
arguing that the trial and the jury had been tainted by large amounts of inadmissible
Following hours of testimony about other homeowners’ damage claims and
GHPOA’s drainage projects, a mere limiting instruction could not have cured the harm.
Accordingly, the appropriate remedy was to grant a mistrial.
Because the trial and jury were tainted by inadmissible and prejudicial
evidence, and because no limiting instruction could have cured the harm, a mistrial should
have been granted. The appropriate remedy now, and only in the event GHPOA is not
entitled to judgment as a matter of law, is to grant a new trial. See In re Hightower, 580
S.W.3d 248, 253 (Tex. App.Houston [14th Dist.] 2019, orig. proceeding) (characterizing
motion for mistrial as “functional equivalent” of motion for new trial).
The Court Erred by Refusing to Submit GHPOA’s Requested Jury
Instructions and Definitions.
charge objections presented during trial and raised
below, GHPOA would reiter
Preview
Cause No. ASON MITHET AL In the County Court of Plaintiff Montgomery County Texas RAND ARBOR ROPERTY WNERS SSOCIATION ET AL Defendants. Plaintiffs’ Original Petition & Application fora Temporary Restraining Order and Injunctive Reliefet al. Backdrop to this Litigation January 31, 2019, Edward Griffith, Barbara Griffith, Todd Butaud and Rachelle Butaud sued Defendant Grand Harbor Property Owners’ Association for claims related to negligence et al cause number 19-02- 622, in the Judicial District of Montgomery County, Texas. The underlying plaintiffs were represented by J. Randal Bays of The Bays Law Firm.” A jury rendered a verdict in favor of the underlying Plaintiffs. Grand Harbor took an appeal. [See Ex. A]. Recently, Grand Harbor underwent a change in leadership The new board refuses to disclose or comment on the ongoing appeal, and whether settlement has been reached regarding the foregoing litigation This has caused concern over 281 property owners at Grand Harbor, of the 880 residents. The restrictive covenants and bylaws of Grand Habor allow the property owners, petition, to request removal of the directors. The property owners have had the requisite number of petitions to remove the new leadership for over 2 months now. However, Grand Harbor’s new leadership refuses to conduct a vote and continues to stall the same with pithy excuses. Thus, this lawsuit is brought to have a court order Grand Harbor’s board to conduct a vote. Page of Thus, Jason L. Smith and Macy L. Smith, Bradley and Megan Schaak, Michael and Dr. Merissa Ferguson, Leslie Kuhlke, Harry and Margaret Schippers, and Adam N. Davis as residents of Grand Harbor Property Owners Association, Plaintiffs” file this Original Petition, Application for Ex Parte Temporary Restraining Order and Application for a Temporary Injunctionand allege the following: Discovery Plan Plaintiffs intend to conduct discovery under Discovery Control Plan Level 2, per Rule 190.3 of the Texas Rules of Civil Procedure, and affirmatively plead that this suit is governed by the expedited action process of Rule 169 because Plaintiffs requests injunctive relief and seek monetary reliefof $250,000 and less. Parties Plaintiffs are residents of Montgomery County, Texas and may be served with legal papers via the Undersigned Defendants are as follows: Defendant Michael Williams is the Vice President of the Grand Harbor Property Owner’s association and may be served with process at: 18956 Freeport Drive Suite A, Montgomery, Texas 77356 or anywhere he may be found. Plaintiffs request issuance of citation at this time. Defendant Daisy Sue Horn of the Grand Harbor Property Owner’s association and may be served with process at: 18956 Freeport Drive Suite A, Montgomery, Texas 77356 or anywhere he may be found. Plaintiffs request issuance of citation at this time. Defendant Grand Harbor Property Owner’s Association is a nonprofit located at Freeport Drive Suite A, Montgomery, Texas 77356 and may be served via its Vice President Page of Michael Williams at: 18956 Freeport Drive - Suite A, Montgomery, Texas 77356 or anywhere he may be found. Plaintiffs request issuance of three citations at this time. Iv. Agency Unless otherwise stated, whenever it is alleged that Defendants committed an ” or an “omission,” failed to perform an act, made a representation or a statement, or failed to make a disclosure, it is alleged that they acted or failed to act through their authorized agents, servants, employees or representatives acting with either expressed, implied, apparent, direct and/or ostensible authority, or they subsequently ratified these acts, their acts, failures to act, representations, statements or conduct. Jurisdiction and Venue This Court has subject matter and personal jurisdiction over the claims in this suit, and venue is proper in this county, because all the allegations and actions that form the basis of this suit occurred in this county, and all real property subject to this dispute is in Montgomery County, Texas. As such, venue is mandatory in Montgomery County, Texas. VI. Facts Over the course of the last three months, several property owners at Grand Harbor have ecome increasingly frustrated because of the new leadership at Grand Harbor, consisting of Michael Williams, and Daisy Sue Horn, only. This frustration has grown for several reasons: First, the members of the new board refuse to hold a vote to remove them from leadership Second, the new board refuses to keep the property owners reasonably informed about the ongoing litigation which is on appeal regarding the 2019 lawsuit, as recited above. Page of Last, because of the obvious financial concerns for all the property owners, the new board has made their message clearthey are inclined to settle the matter regarding the 2019 litigation, out of pocket, and to the detriment of the homeowners at Grand Harbor. That is, the new board desires to pay cash settlements out of the Grand Harbor accounts to settle the lawsuit which is currently on appeal. This is a difficult pill to swallow because the property owners believe that there are well merited defenses to the jury’s verdict, and it is possible that the jury’sverdict may be overturned at least on some grounds. If the litigation is resolved through cash settlements to the underlying plaintiffs, Grand Harbor, and essentially the property owners of Grand Harbor, will have to pay over as is reflected the jury’s verdict. In addition, the property owners will have to pay over in attorney’s fees awarded to the underlying plaintiffs’ attorneys, Randal Bays from The Bays Law Firm.” [See Ex. A] [See Ex. B]. This is despite the fact that in the last 6 months, the board has made the property owners aware that they have incurred over in attorneys’ fees from their current lawyers, at Roberts Markel. The property owners do not exactly know why they must pay over $40,000 to the law firm of Roberts Markel, and Williams and Horn refuse to disclose any updates with the foregoing litigation or reasons why the attorneys’ fees were incurred Williams and Horn invoked the “attorney client privilege.” Page of Removal is Allowed by the Bylaws. The bylaws of Grand Harbor provide the measure for the removal of directors, for cause or no cause. See Ex. C]. First of all, the bylaws have the effect of restrictive covenants, which are binding on Grand Habor and its property owners. Section 1.03 Definitions Except as otherwise provided herein, the words used in these Bylaws shall have the same meaning as set forth in that Declaration of Covenants Conditions and Restrictions of Grand Harbor Section 1, recorded in the Montgomery County, Texas public records under Clerk's File No. 99029326 (said Deciaration, as amended, renewed, or extended from time to time), together with any and all Declarations filed of record submitting additional property to the jurisdiction of the Association, (collectively, the "Declaration"). For clarity, the words "Owner" and "Member" shall have the same meaning for purposes of these Bylaws. These definitions include but are not limited to: Further, the bylaws clearly lay out the procedure for removal of directors. The bylaws provide for removal of a director, with or without cause, upon the receipt of 25% of Grand Harbor’s eligible votes. G. Removal of a Director. Any Director may be removed, with or without cause, at a properly convened Special Meeting at which a quorum is present, by the majority vote of Members present by ballot, in person, by proxy or power of attorney at said meeting. The Board will hold such a Meeting upon receipt of a petition for removal of the Director signed by 25% of the Association's eligible votes. The petition for removal can be initiated by either the Association or the Currently, there are 1000 lots in Grand Habor where a house has been built or can be built However, only 880 lots actually have a home. Each home gets one vote. Currently, there are 281 petitions signed to hold a vote to remove Williams and Horn. That means that the property owners roughly have 1/3 of the votes needed, or 32% needed, a healthy 7% above the required 25% to hold a special vote for removal of the directors. Page of All petitions requesting the special vote could not be clearer, and seek the same relief Petition to the Board of Directors Of the Grand Harbor Property Owners Association To Convene a Meeting of the Membership In accordance with the Grand Harbor Property Owners Association Fifth Amended and Restated Bylaws Adopted on November 29, 2020 (the “Bylaws"), Article Ill, Section 3.01.G. Removal of a Director, this petition requests the Board of Directors (the “Board”) convene a Meeting of the Members for the purpose of voting on the removal of Sue Home and Mike Williams as Directors of the Board of the Grand Harbor Property Owners Association (the "POA") Both Sue Horne and Mike Williams have used an overwhelming amount of proxy votes that were turned in to vote on themselves. Although this was technically allowed it did not represent the true voting members in Grand Harbor and Harbor side. If they wish to run again in the new election, we hope that the Election Committee will remove the ability to use proxy votes in lieu of ballots for voting purposes. \\S3 K 2é INOAS SAR Dy 1 ar the (circle one) owner of the property located at 11588 Renaissance Dr, Montgomery, TX 77356, in the Grand Harbor/Harbor Side Subdivision. Therefore, | am a Member of the Grand Harbor Property Owners Association as provided in the Amended & Restated Certificate of Formation Article V and therefore entitled to. sign this petition Attached herein are the declarations of Plaintiffs, who, over the course of the last several months have urged a vote to have these directors removed. See Ex. D]. But the directors refuse to hold the vote, largely voicing silly little excuses to avoid their own removal. The petitions for removal are attached herein as well. [See Ex. E]. Vil. Applicable Law “Injunctive relief ordinarily may only be granted upon a showing of (1) the existence of a wrongful act; (2) the existence of imminent harm; (3) the existence of irreparable injury; and (4) the absence of an adequate remedy at law.” Park v. Escalera Ranch Owners’ Ass'n, Inc., 457 S.W.3d 571, 600 (Tex. App.Austin 2015, no pet.). However, property owner’s association cases are different as they provide for exceptions to that rule. Page of In an action to “enforce restrictive covenants [a Plaintiff] is not required to prove actual damages in order to obtain injunctive relief. All that is needed is a “distinct or substantial breach of the restrictions be shown,” and “the courts will enjoin the violation even though there is no proof of actual damages or irreparable injury.” Gunnels Woodland Hills Cmty. Ass'n S.W.2d 334, 337 (Tex. App.Houston [1st Dist.] 1978, no writ) (emphasis added) see also Park 457 S.W.3d at 600 (“For restrictive covenant cases, however, there is a well settled exception to the general rule: when a substantial breach of the covenant is shown, it is not necessary to show the existence of any particular amount of damages or to show that the injury will be irreparable.”) Jennings v. Bindseil, 258 S.W.3d 190, 198 (Tex. App.Austin 2008, no pet.) Gigowski v. Russell 718 S.W.2d 16, 21 (Tex. App.Tyler 1986, writ ref’d n.r.e.). As such, equitable relief, such as a TRO or injunction is proper under these facts. VIII. Causes of Action Violations of the Bylaws, restrictive Covenants - Action to Enforce Bylaws. “Restrictive covenants are subject to the general rules of contract construction.” Daniels v. Balcones Woods Club, Inc., No. 03-03-00310-CV, 2006 WL 263589, at *5 (Tex. App.Austin Feb. 2, 2006, pet. denied). “The law recognizes the right of parties to contract with relation to property as they see fit, provided they do not contravene public policy and their contracts are not otherwise illegal.” Tarr v. Timberwood Park Owners Ass'n, Inc., 556 S.W.3d 274, 279 (Tex. 2018). In this case, Grand Harbor, via its representatives, in violation of the covenants and bylaws bargained for because they refuse to engage in an otherwise unambiguous provision of the bylaws, aside from all other conditions precedent being met. Accordingly, Grand Harbor is in breach and a court order is necessary to enforce the bylaws. Page of Specific Performance. “Specific performance is an equitable remedy that may be granted upon proof of a breach of contract. A party seeking specific performance must plead and prove ‘(1) compliance with the contract including tender of performance unless excused by the defendant's breach or repudiation and (2) the readiness, willingness, and ability to perform at relevant times.” Coyle v. Coyle Family Farm, Inc., No. 04 00133 CV, 2017 WL 4801680, at *3 (Tex. App.San Antonio Oct. 25, 2017, no pet.). “Tn determining whether a party is entitled to specific performance via injunctive relief, we consider whether (1) an adequate remedy at law exists, (2) present performance is possible, (3) the agreement contains precise terms capable of enforcement, and (4) the injunction comports with the terms of the agreement.” L Series, L.L.C. v. Holt, 571 S.W.3d 864, 876 (Tex. App.Fort Worth 2019, pet. denied). “Tt is well established that a court of equity will only order specific performance when present performance is possible.” Canteen Corp. v. Republic of Tex. Props., 773 S.W.2d 398, 401 (Tex. App.Dallas 1989, no writ). Here, the facts are easy. The court should order specific performance with the bylaws and order that Grand Harbor, via its board, set a date and time when the property owners can have a vote to remove Williams and Horn, preferably 14 days after the court signs an order Application for Temporary Restraining Order “The purpose of a TRO is to preserve the status quo and it restrains a party from acting only during the pendency of a motion for temporary injunction.” Tex. Parks & Wildlife Dep't v. Page of RW Trophy Ranch, Ltd., No. 05 CV, 2022 WL 1314692, at *1 (Tex. App.Dallas May 3, 2022, pet. denied). Relief Sought Plaintiffs request the following: A court order ordering: Defendant Grand Harbor to hold a vote on theremoval of Williams and Hornewith specific dates and times to be determined nder these facts, Plaintiffs are entitled to a temporary restraining order and injunction becausePlaintiffs seek relief which requires the restraint of some act prejudicial to the applicant includingDefendants continue refusal to hold a vote for their removal. Further, Defendants are parties who are about to allow, and have been allowing, the performance of an act relating to the subject of pending litigation, in violation of the rights of Plaintiffsincluding the failure to hold the special vote for their removal. Under these facts, Plaintiffs have indisputably shown evidence that shows a breach of contract. See Ex. E]. Plaintiffs need only plead and present evidence to support one cause of action to establish a probable right of recovery. Zurovec v. Rueben, No. 09 CV, 2022 WL 3650128, at *7 (Tex. App.Beaumont Aug. 25, 2022, no pet.) Here, Plaintiffs have done just that, if not more. As such, a temporary restraining order should be put in place by the court consistent with the relief sought in this petition Application for Temporary Injunction Plaintiffs incorporate the facts and allegations above fter the Court enters a temporary restraining order, it should hold a hearing to issue a temporary injunction ordering thesame. Page of Plaintiffs ask the Court to set its application for a temporary injunction for hearing and, after the hearing, issue a temporary injunction against Defendants consistent with the temporary restraining order above, which Plaintiffsincorporate by reference herein. Jury Demand Plaintiffsdemand a jury trial and tender the appropriate fee with this petition. VI. Conditions Precedent Any and all conditions precedent to Plaintiffs’ recovery have occurred or have been satisfied, waived, or been excused as a result of the conduct of Defendant Conclusion & Prayer for Relief For these reasons, Plaintiffs ask this Court to issue citation for efendants to appear and answer, that it enter a ex parte temporary restraining order and, at some point in the next 30 days, atemporary injunction ordering Defendants to hold the vote for the removal of Williams and Horn within 7 days after the order is signed Plaintiffs ask for all other relief at law or in equity which they show themselvesto be entitle Respectfully submitted, RT GUILAR AW IRM BY: /s/ Art Aguilar Art Aguilar SBN: 24091525 Waterpoint on Lake Conroe Suite Montgomery, 77356 art@aguilar trial law.com www.aguilar trial law.com P: (713) 992-1104 F: (346) 502-3561 Veteran Owned Business* Page of CAUSE NO. 19-02-01622 EDWARD GRIFFITH, BARBARA § 457TH JUDICIAL DISTRICT GRIFFITH, TODD BUTAUD, § and RACHELLE BUTAUD Vv. GRAND HARBOR PROPERTY § OWNER’S ASSOCIATION § MONTGOMERY COUNTY, TEXAS FINAL JUDGMENT On March 21, 2022, the Court called the above numbered and styled cause to trial. Edward Griffith, Barbara Griffith, Todd Butaud, and Rachelle Butaud appeared in person and through their attorneys, J. Randal Bays and Stephanie Bryant, and announced ready. Grand Harbor Property Owner's Association appeared through its representative, B. Kevin Smith, and its attorneys, Charles Melvin Kibler, Jr., Wesson H. Tribble, Steven C. Earl, and James C. Marrow, and announced ready. A jury of twelve citizens and one alternate citizen of Montgomery County, Texas was impaneled and sworn, and the case proceeded to trial. On March 24, 2022, following the conclusion of the evidence and after arguments of counsel, the Court submitted its instructions, definitions, and questions to the jury (the “Charge”). The same day, the jury answered the questions in the Charge, which the Court received, filed, and made of record (the “Verdict”). In pertinent part, the jury found as follows: QUESTION 1. Did Grand Harbor Property Owners’ Association fail to comply with its obligation to provide for the maintenance, repair, preservation, upkeep, and protection of the common areas, assets, and properties of the subdivision? Final Judgment Page 1 of 8 Minute 4th of April, 2022 Answer "yes" or "no". ANSWER:_YES QUESTION 2. What sum of money, if any, if paid now in cash, would fairly and reasonably compensate the Plaintiffs for their damages, if any, that resulted from such failure to comply? Consider the following elements of damages, if any, and none other. 1. The reasonable and necessary cost to repair the Drainage Easement. Do not add any amount for interest on damages, if any. Answer separately in dollars and cents for damages, if any, for the Plaintiffs listed below. ANSWER for Griffiths: $65.294.12 ANSWER for Butauds: $50,218.59 QUESTION 3. What is a reasonable fee for the necessary services of the Plaintiffs' attorneys in this case, as stated in dollars and cents? Answer with an amount, if any, for each of the following in dollars and cents: For representation through trial: $81,791.17 For a motion for judgment non obstante verdicto: $1,450.00 For a motion for new trial: .......... 0.0.00 e ce eee eee $3,050.00 For an entry of final judgment: $1,450.00 For briefing an appeal to the Court of Appeals: $10,000.00 For oral argument at the Court of Appeals: $5,000.00 For preparing, or responding to, a petition for review to the Supreme Court of Texas: ...........0..00 eee $5,000.00 Final Judgment Page 2 of 8 Minute 4th of April, 2022 For full briefing in the Supreme Court of Texas: $7,500.00 For oral argument to the Supreme Court of Texas: $5,000.00 At the conclusion of the Court reading the Verdict, Edward Griffith, Barbara Griffith, Todd Butaud, and Rachelle Butaud moved that the Court accept the Verdict, which the Court granted. Based upon the Verdict, the Court renders judgment in favor of Edward Griffith, Barbara Griffith, Todd Butaud, and Rachelle Butaud. It is ORDERED, ADJUDGED, and DECREED that Edward Griffith and Barbara Griffith recover from Grand Harbor Property Owner’s Association their economic damages in the sum of $65,294.12, for which let execution issue. It is further ORDERED, ADJUDGED, and DECREED that Edward Griffith and Barbara Griffith recover from Grand Harbor Property Owner’s Association interest on the sum awarded in this paragraph beginning on the date of this Final Judgment at the rate of 5.00% per annum, compounded annually, for which let execution issue. It is ORDERED, ADJUDGED, and DECREED that Todd Butaud and Rachelle Butaud recover from Grand Harbor Property Owner’s Association their economic damages in the sum of $50,218.59, for which let execution issue. It is further ORDERED, ADJUDGED, and DECREED that Todd Butaud and Rachelle Butaud recover from Grand Harbor Property Owner's Association interest on the sum awarded in this paragraph beginning on the date of this Final Judgment at the rate of 5.00% per annum, compounded annually, for which let execution issue. It is ORDERED, ADJUDGED, AND DECREED that Edward Griffith and Final Judgment Page 3 of 8 Minute 4th of April, 2022 Barbara Griffith recover from Grand Harbor Property Owner’s Association prejudgment interest through March 31, 2022 in the sum of $14,498.87, plus additional prejudgment interest at the rate of $8.94 per day beginning on April 1, 2022 and ending on the day preceding the day this Final Judgment is signed, for which let execution issue. It is further ORDERED, ADJUDGED, and DECREED that Edward Griffith and Barbara Griffith recover from Grand Harbor Property Owner’s Association interest on the sum awarded in this paragraph beginning on the date of this Final Judgment at the rate of 5.00% per annum, compounded annually, for which let execution issue. It is ORDERED, ADJUDGED, AND DECREED that Todd Butaud and Rachelle Butaud recover from Grand Harbor Property Owner's Association prejudgment interest through March 31, 2022 in the sum of $11,151.28, plus additional prejudgment interest at the rate of $6.88 per day beginning on April 1, 2022 and ending on the day preceding the day this Final Judgment is signed, for which let execution issue. It is further ORDERED, ADJUDGED, and DECREED that Todd Butaud and Rachelle Butaud recover from Grand Harbor Property Owner’s Association interest on the sum awarded in this paragraph beginning on the date of this Final Judgment at the rate of 5.00% per annum, compounded annually, for which let execution issue. It is further ORDERED, ADJUDGED, and DECREED that Edward Griffith, Barbara Griffith, Todd Butaud, and Rachelle Butaud have and recover from Grand Harbor Property Owner’s Association their attorney’s fees for the trial of this Cause in Final Judgment Page 4 of 8 Minute 4th of April, 2022 the sum of $81,791.17 plus an additional $1,450.00 for the preparation of their Motion for Entry of Judgment and this Final Judgment, for both of which let execution issue. It is further ORDERED, ADJUDGED, and DECREED that Edward Griffith, Barbara Griffith, Todd Butaud, and Rachelle Butaud recover from Grand Harbor Property Owner’s Association interest on the sums awarded in this paragraph beginning on the date of this Final Judgment at the rate of 5.00% per annum, compounded annually, for which let execution issue. In the event Grand Harbor Property Owner’s Association files a Motion for Judgment Non Obstante Verdicto (the “JNOV”) which the Court does not grant, it is ORDERED, ADJUDGED, and DECREED that Edward Griffith, Barbara Griffith, Todd Butaud, and Rachelle Butaud recover from Grand Harbor Property Owner’s Association their attorney’s fees for dealing with the JNOV in the amount of $1,450.00. It is further ORDERED, ADJUDGED, and DECREED that Edward Griffith, Barbara Griffith, Todd Butaud, and Rachelle Butaud recover from Grand Harbor Property Owner’s Association interest on the sum awarded in this paragraph beginning on the date the Court disposes of the JNOV at the rate of 5.00% per annum, compounded annually. In the event Grand Harbor Property Owner’s Association files a Motion for New Trial (the “MNT”) which is overuled, it is ORDERED, ADJUDGED, and DECREED that Edward Griffith, Barbara Griffith, Todd Butaud, and Rachelle Butaud recover from Grand Harbor Property Owner's Association their attorney’s fees for dealing with Final Judgment Page 5 of 8 Minute 4th of April, 2022 the MNT in the amount of $3,050.00. It is further ORDERED, ADJUDGED, and DECREED that Edward Griffith, Barbara Griffith, Todd Butaud, and Rachelle Butaud recover from Grand Harbor Property Owner’s Association interest on the sum awarded in this paragraph beginning on the date the MNT is overruled at the rate of 5.00% per annum, compounded annually. In the event of an appeal of this Final Judgment to the Court of Appeals in which Edward Griffith, Barbara Griffith, Todd Butaud, and Rachelle Butaud prevail, itis ORDERED, ADJUDGED, and DECREED that Edward Griffith, Barbara Griffith, Todd Butaud, and Rachelle Butaud recover from Grand Harbor Property Owner’s Association their attorney's fees for said appeal in the sum of $10,000.00, and if oral argument occurred in the Court of Appeals, that Edward Griffith, Barbara Griffith, Todd Butaud, and Rachelle Butaud recover from Grand Harbor Property Owner’s Association their attorney's fees for oral argument in the sum of $5,000.00. It is further ORDERED, ADJUDGED, and DECREED that Edward Griffith, Barbara Griffith, Todd Butaud, and Rachelle Butaud recover from Grand Harbor Property Owner’s Association interest on the sum or sums awarded in this paragraph beginning on the date the Court of Appeals issues its judgment at the rate of 5.00% per annum, compounded annually. However, should Edward Griffith, Barbara Griffith, Todd Butaud, and Rachelle Butaud prevail in the Court of Appeals, but should the Supreme Court of Texas reverse the decision of the Court of Appeals, it is further ORDERED, ADJUDGED, and DECREED that Edward Griffith, Barbara Griffith, Todd Butaud, Final Judgment Page 6 of 8 Minute 4th of April, 2022 and Rachelle Butaud shall not recover the fees to which he would otherwise be entitled to under this paragraph. In the event the Supreme Court of Texas is requested to review this case, and in the event Edward Griffith, Barbara Griffith, Todd Butaud, and Rachelle Butaud prevails in the Supreme Court of Texas, it is ORDERED, ADJUDGED, and DECREED that Edward Griffith, Barbara Griffith, Todd Butaud, and Rachelle Butaud recover from Grand Harbor Property Owner’s Association their attorney’s fees in the sum of $5,000.00 for the Petition for Review stage in the Supreme Court of Texas, if the Supreme Court of Texas requests Briefing, it is ORDERED, ADJUDGED, and DECREED that Edward Griffith, Barbara Griffith, Todd Butaud, and Rachelle Butaud recover from Grand Harbor Property Owner's Association their attorney’s fees in the sum of $7,500.00 for the Briefing stage in the Supreme Court of Texas, and if the Supreme Court of Texas requests Oral Argument, it is ORDERED, ADJUDGED, and DECREED that Edward Griffith, Barbara Griffith, Todd Butaud, and Rachelle Butaud recover from Grand Harbor Property Owner's Association their attorney’s fees in the sum of $5,000.00 for the Oral Argument stage in the Supreme Court of Texas. It is further ORDERED, ADJUDGED, and DECREED that Edward Griffith, Barbara Griffith, Todd Butaud, and Rachelle Butaud recover from Grand Harbor Property Owner’s Association interest on the sum or sums awarded in this paragraph beginning on the date the Supreme Court of Texas disposes of the proceedings before it at the rate of 5.00% per annum, compounded annually. Final Judgment Page 7 of 8 Minute 4th of April, 2022 It is ORDERED, ADJUDGED, and DECREED that Edward Griffith, Barbara Griffith, Todd Butaud, and Rachelle Butaud recover from Grand Harbor Property Ownevr’s Association their taxable court costs. It is further ORDERED, ADJUDGED, and DECREED that Edward Griffith, Barbara Griffith, Todd Butaud, and Rachelle Butaud recover from Grand Harbor Property Owner's Association interest on the sums awarded in this paragraph beginning on the date of this Final Judgment at the rate of 5.00% per annum, compounded annually, for which let execution issue. It is further ORDERED, ADJUDGED, and DECREED that all writs to enforce this Final Judgment shall issue. Any other relief requested by a party to this action that is not expressly given in this Final Judgment is denied. This Final Judgment finally disposes of all parties and all claims, and is appealable. Dated 41112022 4:01:10 PM Cauge J ee THE HONORABLE VINCENZO J. SANTINI, JUDGE PRESIDING Final Judgment Page 8 of 8 Minute 4th of April, 2022 J. RandalBays Minute 4th of April, 2022 CAUSE NO. 19-02-01622 EDWARD GRIFFITH, BARBARA IN THE DISTRICT COURT OF GRIFFITH, TODD BUTAUD, and RACHELLE BUTAD MONTGOMERY COUNTY, TEXAS GRAND HARBOR PROPERTY OWNER’S ASSOCIATION 457TH JUDICIAL DISTRICT DEFENDANT’S MOTION FOR NEW TRIAL Pursuant to Rules 306a, 315, 316, 320, 321, 324, and 329b of the Texas Rules of Civil Procedure, and Rule 26.1(a)(2) of the Texas Rules of Appellate Procedure, Defendant Grand Harbor Property Owner’s Association (“GHPOA”) asks this Court to grant a new trial, or a substantial remittitur, in the event that the Court does not render judgment in favor of Defendant on all elements of the Plaintiffs’ claims against GHPOA. “A trial court’s plenary jurisdiction gives it not only the authority but the responsibility to review trial order upon proper motion.” Jn re Baylor Med. Ctr. at Garland, 280 S.W.3d 227, 231 (Tex. 2008) (orig. proceeding). A New Trial Is Warranted Because of the Harmful Admission of Irrelevant Evidence about Other Incidents and Failure to Grant a Mistrial. Evidence about other incidents was irrelevant and should not have been admitted without a predicate showing of similarity. Over Defendant’s objection, the Court permitted Plaintiffs to introduce large amounts of evidence about GHPOA’s unrelated drainage projects and handling of other drainage claims by homeowners other than the Plaintiffs. Such evidence was irrelevant and unfairly prejudicial to Defendant, and it should not have been admitted. 1 This is, and always has been, a case about GHPOA’s alleged breach of restrictive covenants. Specifically, Plaintiffs alleged that GHPOA failed to comply with obligations in the restrictive covenants, Articles of Incorporation, and bylaws, by failing to maintain and/or repair a drainage system contained on an intraplot easement between Plaintiffs’ properties and failing to repair a bulkhead located on the Griffiths’ ty. Plaintiffs alleged (erroneously) that each of these documents created a contract between Plaintiffs and GHPOA and that GHPOA breached those contracts. always has been about those alleged contracts and the parties’ contractual duties, if any, arising from one or more of those documents. However, Plaintiffs’ factual case to the jury was constructed around trying to prove that Plaintiffs were treated differently than other homeowners who may have had drainage claims. But as Defendants arguedand as the evidence demonstratedthe circumstances of other homeowners’ drainage claims were dissimilar from the Plaintiffs’ , and such evidence is therefore inadmissible. Texas law is clear that evidence about other acts or incidents involving defendant is irrelevant and therefore inadmissible on the issue of whether the defendant was liable in doing or not doing a particular act. See, e.g., Reynolds & Huff v. White, 3 S.W.2d 923, 930 (Tex. Civ. App. Tyler 1964, no writ (“It has long been a settled rule in Texas that evidence of similar accidents is inadmissible on the issue of whether a party has been negligent in doing or not doing a particular thing.”). Before such evidence may be admitted, the proffering party first must lay a predicate that such other acts “occurred under reasonably similar but not necessarily identical circumstances.” Missouri Pac. R.R. Co. v. , 563 S.W.2d 233, 236 (Tex. 1978). That is, “{ajn unrelated incident may be relevant and admissible if it and the incident involved in the lawsuit occurred under reasonably similar circumstances, the two incidents are connected in a special way, or the incidents occurred by means of the same instrumentality.” Columbia Med. Ctr. Subsidiary, L.P. vy. Meier, 198 S.W.3d 408, 41112 (Tex. App. Dallas 2006, pet. denied) see Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 34041 (Tex. 1998) (“Evidence of earlier accidents that occurred under reasonably similar but not necessarily identical circumstances is admissible.”’). s’ burden, as the proponent of this evidence, to first lay a predicate showing that other incidents were reasonably similar to the incident made the basis of thi See Meier, 198 S.W.3d at 412 (“The burden to show the incidents are reasonably similar, but not necessarily identical, is on the proponent of the evidence.”); Beavers v. Northrop Worldwide Aircraft Servs., Inc., 821 S.W.2d 669, 677 (Tex. App. illo 1991, writ denied) (“For the testimony to be admissible, Northrop was required to lay a predicate that the bearing failures occurred under reasonably similar, but not necessarily identical, circumstances.”’); Z Mart Stores, Inc. v. Terry , 794 S.W.2d 63, 65 (Tex. App.Texarkana 1990, writ denied) (“[Plaintiff] was required to lay a predicate showing that the accidents occurred under reasonably similar circumstances. Reasonably similar circumstances generally means the same type of occurrence.”). It is only predicate has been laid that evidence about other incidents may be admitted. Snider Indus., 604 S.W.2d 341, 345 (Tex. Civ. App.—Texarkana 1980, writ ref’d n.r.e.). Plaintiffs did not lay the evidentiary predicate necessary to admit evidence about GHPOA’s other drainage projects or handling of drainage claims by other homeowners. Accordingly, such evidence should not have been admitted. ee 821 S.W.2d at 678 (“In summary, we agree with appellants that no predicate of substantial similarity was laid and the trial court erred in admitting the evidence.”); 378 S.W.2d at 93031 (holding evidence about other acts was inadmissible where proffering party offered no evidence that other acts were reasonably similar); see also Molina vy. Hurricane Harbor, L.P., No. 12 CV, 2017 WL 2464708, at *2 (Tex. Tyler June 7, 2017, no pet.) (mem. op.) (holding trial court correctly excluded evidence where proffering party failed to satisfy her burden of demonstrating similarity). Instead, because such evidence was admitted without Plaintiffs’ first laying an evidentiary predicate of similarity, effectively the burden was improperly shifted to Defendant to have to prove dissimilarity.What resulted was precisely what defense counsel predicted during pretrial: instead of defending its conduct in this breach case, GHPOA was forced to have to try several other claims at once.The admission of this evidence therefore harmed the erroneous admission of this evidence was harmful to GHPOA because the jury was encouraged by Plaintiffs to find GHPOA liable for breach of contract GHPOA supposedly treated Plaintiffs differently than it had other homeowners. GHPOA preserved its objection to such evidence on relevancy grounds by seeking and obtaining a running objection to all evidence about other incidents. See Meier, 198 S.W.3d at 411 (confirming that inadmissibility of other incidents is based upon relevancy rounds During closing argument, Plaintiffs’ counsel specifically told the jury to answer Question 1 “Yes” because “they didn’t fix ours but they fixed every other property owner’s easements” (or words substantially to that effect). Then, after detailing the Plaintiffs’ requested damages, Plaintiffs’ counsel again argued that GHPOA did not pay for Plaintiffs’ property damages “only because John Wathen hates Ed Griffith because he helped Sue Horne” with her claim for drainage repairs (or words substantially to that effect) The jury was invited to, and probably did, reach an improper verdict based on improperly admitted Because evidence was improperly admitted was harmful to Defendant, probably caused the rendition of an improper a newtrial should be granted. A mistrial should have been granted after Plaintiffs’ stated basis for admission of evidence about other homeowners’ claims was revealed to be a ruse. During pretrial, Plaintiffs’ sole stated basis for admission of evidence about incidents involving GHPOA was based upon Plaintiffs’ pending claims for negligence and exemplary damages. Specifically, Plaintiffs’ counsel argued such evidence was relevant to “and highly probative” about the question of exemplary damages because the jury, in passing on the question of exemplary damages, should consider the Defendant’s history of paying other homeowners’ claims(or so the argument went). However, Plaintiffs did not have a viable claim for negligence or exemplary , and they knew it. Where, as here, the claimed loss or damage relates only to the subject matter of the alleged contract, the plaintiffs action sounds only in contract, not tort. See Med. City Dallas, Ltd. v. Carlisle Corp., 251 S.W.3d 55, 61 (Tex. 2008). As the Texas Supreme Court has explained: The nature of the injury most often determines which duty or duties are When the injury is only the economic loss to the subject of a contract itself, the action sounds in contract alone. injury was that the house they were promised and paid for was not the house they This can only be characterized as a breach of contract, and breach of contract cannot support recovery of exemplary damages. Jim Walter Homes, Inc. v. Reed, 711 S.W.2d 617, 618 (Tex. 1986). Similarly, whether a claim sounds in contract or in tort depends upon the nature of the defendant’s alleged duty: If the defendant’s conduct . . . would give rise to liability independent of the contract exists between the parties, the plaintiff's claim may also sound in tort. Conversely, if the defendant’s conduct . . . would give rise to liability only because it breaches the parties’ agreement, the plaintiff's claim ordinarily sounds only in c Sw. Bell Tel. Co. v. DeLanney, 809 S.W.2d 493, 495 (Tex. 1991); see DeWitt Cty. Elec. op., Inc. v. Parks, 1 S.W.3d 96, 105 (Tex. 1999). A review of Plaintiffs’ operative pleading confirms that GHPOA’s only alleged duties arise from the restrictive covenants, not from some separate tort duty. Plaintiffs’ Second Amended Petition alleges, in its “Negligence” section: Pleading further and in the alternative, the POA owes a duty to Plaintiffs under its articles of incorporation, the restrictive covenants for Grand Harbor Section 3 and its bylaws to maintain the drainage system located in the Drainage Easement between the Griffith Tract and the Butaud Tract. The POA was negligent by breaching the duties it owed to Plaintiffs which were ate cause of Plaintiffs’ damages: Failing to exercise the degree of care required of it by the restrictive covenants for Grand Harbor, Section 3; Failure to exercise the degree of care required of it by the POA’s articles of incorporation; and/or o exercise the degree of care required of it by the POA’s bylaws Plaintiffs’ Second Amended Original Petition, at 8 (emphases added). For these reasons, Plaintiffs have never had viable tort claim against GHPOA. Knowing they did not have viable claims for negligence and/or exemplary damages, Plaintiffs did not develop those tort claims. Plaintiffs’ counsel Bays testified that only a “very small portion” of fees related to Plaintiffs’ tort claims; that no discovery was conducted on their tort claims; and their total work on Plaintiffs’ tort claims was limited to $1,220 (as compared with the $81,791.17 requested from the jury). Plaintiffs’ tort claims were not brought in good faith. That conclusion follows from the above and from the fact that, immediately after using their pending tort claims as a Trojan Horse to smuggle in large amounts of inadmissible evidence about other incidents, Plaintiffs immediately nonsuited their tort claims after completi the direct examination of their first witness, Ed Griffith, who was allowed to testify at length about other drainage projects and other homeowners’ claims. Defendants promptly moved for a mistrial at the very next break, correctly arguing that the trial and the jury had been tainted by large amounts of inadmissible Following hours of testimony about other homeowners’ damage claims and GHPOA’s drainage projects, a mere limiting instruction could not have cured the harm. Accordingly, the appropriate remedy was to grant a mistrial. Because the trial and jury were tainted by inadmissible and prejudicial evidence, and because no limiting instruction could have cured the harm, a mistrial should have been granted. The appropriate remedy now, and only in the event GHPOA is not entitled to judgment as a matter of law, is to grant a new trial. See In re Hightower, 580 S.W.3d 248, 253 (Tex. App.Houston [14th Dist.] 2019, orig. proceeding) (characterizing motion for mistrial as “functional equivalent” of motion for new trial). The Court Erred by Refusing to Submit GHPOA’s Requested Jury Instructions and Definitions. charge objections presented during trial and raised below, GHPOA would reiter