Wesley Spears and Renee Jacobs v. Falcon Pointe Community Homeowner's Association, 03-14-00650-CV

Background

Appellants (Spears and Jacobs) added lattice/privacy screen to their backyard fence; Association notified them that the addition exceeded the six‑foot fence height and required prior written Architectural Committee approval.
Appellants removed lattice after the first notice but later erected a freestanding privacy screen without written approval; Association issued further violation notices and a $25 fine.
Appellants filed a declaratory‑judgment action and a DTPA claim challenging the Association’s notices, record‑access practices, board composition, and other procedures; they sought multiple declarations and damages.
Falcon Pointe moved for traditional and no‑evidence summary judgment arguing (a) the privacy screen violated the covenants because it exceeded permitted height and was built without approval, (b) many declaratory requests sought advisory opinions (no justiciable controversy), and (c) there was no evidence supporting the DTPA claim.
The trial court granted Falcon Pointe’s motion, declaring the privacy screen violated the Rules, dismissing all remaining claims with prejudice, and awarding attorney’s fees; the court also sustained objections to all evidence appended to Appellants’ summary‑judgment response.
Post‑judgment Appellants moved to recuse the judge who entered the final judgment; the recusal motion was denied. Appellants appealed raising issues about waiver, summary judgment, denial of continuance, DTPA argument opportunity, and recusal.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
1. Whether appellants waived issues by inadequate briefing	Spears/Jacobs assert trial errors but largely recycle trial filings and fail to address appellee’s summary‑judgment grounds.	Falcon Pointe contends appellants’ briefing lacks record citations/authorities and thus waived many appellate issues under Tex. R. App. P. 38.1(i).	Court treats first, third, and fourth issues as waived for inadequate briefing; appellee urged waiver and the record shows deficiencies.
2. Whether summary judgment was erroneous (privacy screen, advisory opinions, DTPA)	Appellants contend court erred in granting summary judgment and in dismissing DTPA claims.	Falcon Pointe argues evidence conclusively shows violation (no approval; fence exceeded height), many declaratory requests sought advisory opinions, and no evidence supports DTPA (court sustained objections to appellants’ evidence).	Trial court properly granted summary judgment: privacy screen violated rules; many declarations sought advisory opinions and thus were nonjusticiable; no evidence supported DTPA (evidentiary objections sustained).
3. Whether denial of continuance was abuse of discretion	Appellants asserted they needed more discovery and asked for continuance filed the night before hearing.	Falcon Pointe argued the motion was untimely, lacked showing that sought discovery was material, and appellants failed to show due diligence.	Denial affirmed—continuance was untimely, appellants did not show materiality of discovery or due diligence; trial court did not abuse discretion.
4. Whether recusal was required / judge abused discretion	Appellants alleged bias based on comments and rulings and asserted procedural unfairness.	Falcon Pointe argued the motion was untimely (filed after judgment), lacked extrajudicial bias allegations, and judicial remarks during proceedings do not warrant recusal absent extreme favoritism/antagonism.	Recusal denial affirmed/mooted: issue waived/inadequately briefed and untimely; record did not show extrajudicial bias or such hostility/favoritism as to render fair judgment impossible.

Key Cases Cited

Swilley v. Hughes, 488 S.W.2d 64 (Tex. 1972) (purpose of summary judgment is to dispose of patently unmeritorious claims)
Tex. Workers' Comp. Comm'n v. Patient Advocates of Tex., 136 S.W.3d 643 (Tex. 2004) (appellate review when competing summary‑judgment motions are filed)
BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789 (Tex. 2002) (abuse‑of‑discretion standard for continuance rulings and factors to consider)
Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150 (Tex. 2004) (factors relevant to continuance rulings: case time on file, materiality of discovery, diligence)
Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682 (Tex. 2002) (trial court may deny late pleadings absent motion for leave explaining tardiness)
Nelson v. PNC Mortgage Corp., 139 S.W.3d 442 (Tex. 2004) (timeliness and diligence in seeking continuances considered when assessing abuse of discretion)
Rocha v. State, 16 S.W.3d 1 (Tex. Crim. App. 2000) (failure to cite record or authorities presents nothing for review)