Waterford Harbor Master Association v. Michael Landolt and Ann Wismer ( 2015 )


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  • Appellees’ Motion for Rehearing Overruled; Appellees’ Motion for En Banc
    Consideration Denied as Moot; Memorandum Opinion of November 6, 2014
    Withdrawn; Affirmed in Part, Reversed and Rendered in Part, and Substitute
    Memorandum Opinion filed January 22, 2015.
    In The
    Fourteenth Court of Appeals
    NO. 14-13-00817-CV
    WATERFORD HARBOR MASTER ASSOCIATION, Appellant
    V.
    MICHAEL LANDOLT AND ANN WISMER, Appellees
    On Appeal from the 56th District Court
    Galveston County, Texas
    Trial Court Cause No. 12-CV-2145
    SUBSTITUTE MEMORANDUM OPINION
    We overrule appellees’ motion for rehearing, deny appellees’ motion for en
    banc consideration as moot, withdraw our opinion issued November 6, 2014, and
    issue this substitute memorandum opinion.
    Appellant, Waterford Harbor Master Association (“Waterford”), appeals a
    final judgment rendered in a suit for declaratory relief and monetary damages filed
    by appellees, Michael Landolt and wife, Ann Wismer, (“the Landolts”), and on
    Waterford’s counterclaim for declaratory relief. We affirm in part, and reverse and
    render in part.
    I. BACKGROUND
    Waterford Harbor is a subdivision in Galveston County comprised of
    different types of residences, a marina, and parks. In 1991, the Landolts purchased
    a home in the Waterford Oaks section (“the Oaks”) of Waterford Harbor. The
    Oaks is an exclusive, private section within Waterford Harbor; access to this
    section is through a second gate. Within the Oaks is a park area, (“the Oaks park”)
    which is accessible to residents of Waterford Harbor and the Oaks.
    To “create certain easements, [and] . . . assessments . . . in a consistent,
    compatible, and mutually beneficial manner,” the developer promulgated a
    “Master Declaration of Restrictive Covenants” (“Master Declaration”).                         The
    Master Declaration was executed and filed of record in 1991—there is no dispute
    that it burdens the Landolts’ property1 and applies to all of Waterford Harbor. The
    Oaks, often referred to as a “sub-association,” also promulgated a “Declaration for
    Waterford Oaks,” separate and apart from the Master Declaration.                      The Oaks
    Declaration is also filed of record.
    Attached to the Master Declaration as Exhibit “B” is the “Waterford Harbor
    Pro-Rata Share of Reserves.”2 It sets out the total square feet of each Reserve, and
    the percentage each Reserve represents, as compared to the total square footage of
    1
    The Master Declaration was to continue through December 31, 2005, and could be
    extended for one or more periods of ten additional years if approved by a two-thirds vote.
    2
    The Master Declaration defines a “Reserve” as “(i) any portion of the Property
    identified by reserve and block number, reserve letter or similar designation on any recorded Plat
    of the Property or portion of it, and (ii) each other portion of land contained within the Property
    which shall be designated as a “Reserve” for the purposes of this Declaration in any amended or
    supplementary declaration or deed hereafter executed by Declarant.”
    2
    the subdivision. Exhibit “B” lists the Oaks, designated as Reserve G, as containing
    394,254 square feet. The Plat for Waterford Harbor identifies the square footage
    as 594,254, as does the Declaration specific to the Oaks. The total square footage
    of the Oaks is part of the calculation for determining the amount of the annual
    assessment for expenses charged to the particular reserve and how that amount of
    expenses is charged to each lot owner in Waterford Oaks. Specifically, in the
    Master Declaration, “Pro Rata Share” is defined to mean:
    (i) each Reserve, the percentage allocated to each Reserve on Exhibit
    “B” to this Declaration, and (ii) each Owner of a Lot . . ., a fraction,
    the numerator of which is the number of Net Square Feet in the Lot(s)
    owned by the Owner in question and the denominator of which is the
    number of Net Square Feet in the Reserve, excluding all Common
    Facilities. . . .”
    Thus, “Pro Rata Share” is used for two purposes. The first is to calculate the
    percentage of the Master Association expenses for which each Reserve is
    responsible; that is, for what percentage of Master Association expenses the Oaks
    section is responsible. The second is to calculate the amount of the total figure
    assessed for each Reserve for which each lot owner in that reserve is responsible.3
    The “Pro Rata Share” calculation does not bear on voting.
    The Landolts learned of a change to the Oaks square footage figures in 2002.
    The minutes of Waterford’s board of directors reveal that in December 2002, the
    square footage of the Oaks was changed from the 394,254, as shown on Exhibit
    “B”, to 594,254, as reflected on the Plat of the subdivision and in the sub-
    association Declaration. Beginning in 2003, Waterford calculated assessments
    using the 594,294 square feet figure.          The Landolts claim their assessment
    3
    While there are two assessments on the Landolts’ property; one for the Master
    Association, and a separate one for the Oaks sub-association, only the Master Association
    assessment is at issue.
    3
    increased 7-8%. Since that time, the Landolts have paid their assessments “under
    protest.”
    In May 2012, Waterford’s Master Association called for a vote on three
    amendments. The first was to amend the Master Declaration to approve the 2002-
    2003 change to the total square footage of the Oaks. The second was to allow sub-
    associations (such as the Oaks) to submit petitions to elect their own boards of
    directors. The third was to increase approval by membership required to amend
    the Master Declaration from 51% to 67% for purposes of the Pro Rata Share or
    termination of the covenants. The minutes of Waterford’s board of directors
    meeting in June 2012, show Amendment 1 passed with 52.93%, Amendment 2
    received 50.98% approval, and Amendment 3 had 50.40%.               Because 51% is
    required to amend the Master Declaration, only Amendment 1 was approved.
    In June 2012, the Landolts received a letter asking homeowners to verify the
    square footage of the owners’ lot, explaining the figures used were taken from the
    records of the Galveston County Appraisal District (“GCAD”). The letter listed
    the square footage of the Landolts’ property as 35,911. Michael Landolt testified
    the property was approximately 36,200 square feet.
    The Landolts sued Waterford under the Texas Declaratory Judgment Act,
    seeking a declaration that the “Oaks park” be considered “Common Facilities.”
    This declaration, the Landolts urged, would result in a reduction in the amount of
    assessment because “Community Facilities” are exempt from inclusion in the
    calculation on which assessments are based. The Landolts also asked the court to
    declare that a particular section of property, Reserve A, is a common interest
    property for every resident of Waterford Harbor, arguing every resident should be
    allowed to vote a pro rata share of that property. They also asked the court to
    require Waterford to use the square footage listed on the Plat, and not that listed in
    4
    the GCAD records, for voting purposes. Finally, the Landolts sought recovery of
    overpayments on assessments based on the increased square footage due to the
    2002-2003 change to the square footage contained in the Plat.
    The trial court ordered that the 2002-2003 action of Waterford’s board of
    directors changing the typographical error, correcting the square footage from
    394,254 to 594,254, was invalid. The trial court further found the May 2012 vote
    was invalid because the numbers used were based on the “invalid” 2002-2003
    voting numbers.    The trial court declared that the “Oaks park” area is not a
    Common Facility and the trial court rejected that Reserve A should be allocated to
    the homeowners for purposes of voting.        Finally, the trial court awarded the
    Landolts $16,218.24 (four years of assessments), along with attorneys’ fees, pre
    and post-judgment interest.
    Waterford appealed; the Landolts asserted two cross-points.
    II. ANALYSIS
    A.    Standard of Review
    We review declaratory judgments in the same manner as other judgments.
    Tex. Civ. Prac. & Rem. Code Ann. § 37.010 (West 2008). We review a trial
    court’s findings utilizing the same standards as a review of a jury’s verdict. See
    MBM Fin. Corp. v. Woodlands Operating Co., L.P., 
    292 S.W.3d 660
    , 663 (Tex.
    2009) (citing Catalina v. Blasdel, 
    881 S.W.2d 295
    , 297 (Tex. 1994)). When there
    is a complete reporter’s record, the trial court’s findings are not conclusive. See
    Arrellano v. State Farm Fire & Casualty Co., 
    191 S.W.3d 852
    , 856 (Tex. App.—
    Houston [14th Dist.] 2006, no pet.). When there are no findings of fact and
    conclusions of law, we must infer that the trial court made all findings necessary to
    support its judgment, and we will uphold those findings if they are supported by
    5
    sufficient evidence. Chenault v. Bank, 
    296 S.W.3d 186
    , 198 (Tex. App.—Houston
    [14th Dist.] 2009, no pet.) (citing Holt Atherton Indus., Inc. v. Heine, 
    835 S.W.2d 80
    , 83 (Tex. 1992)).
    In a legal-sufficiency challenge, we review the record in the light most
    favorable to the factual findings, crediting favorable evidence if a reasonable
    factfinder could, and disregarding contrary evidence unless a reasonable factfinder
    could not. See City of Keller v. Wilson, 
    168 S.W.3d 802
    , 827 (Tex. 2005). We
    will conclude the evidence is legally insufficient to support a finding only if (a)
    there is a complete absence of evidence of a vital fact, (b) the court is barred by
    rules of law or evidence from giving weight to the only evidence offered to prove a
    vital fact, (c) the evidence offered to prove a vital fact is not more than a mere
    scintilla, or (d) the evidence conclusively establishes the opposite of the vital fact.
    
    Id. In a
    factual-sufficiency review, we consider and weigh all of the evidence in
    a neutral light and set aside the challenged finding only if the evidence is so weak
    or the finding is so against the great weight and preponderance of the evidence that
    it is clearly wrong and unjust. See Dow Chem. Co. v. Francis, 
    46 S.W.3d 237
    , 242
    (Tex. 2001). We will defer to a trial court’s factual findings if they are supported
    by evidence. Perry Homes v. Cull, 
    258 S.W.3d 580
    , 598 (Tex. 2008).
    When a question of law is at issue, such as the review of an unambiguous
    restrictive covenant, our review is de novo. See Pilarcik v. Emmons, 
    966 S.W.2d 474
    , 478 (Tex. 1998); American Gold Corporation v. Colburn, 
    65 S.W.3d 277
    , 279
    (Tex. App.—Houston [14th Dist.] 2001, pet. denied) (citing Ostrowski v. Ivanhoe
    Property Owners Improvement Ass’n, 
    38 S.W.3d 248
    , 253 (Tex. App.—Texarkana
    2001, no pet.)). Our primary goal is to ascertain and give effect to the purposes
    and intent of the language of the restrictive covenant. See Wiese v. Healthlake
    6
    Cmty. Ass’n, 
    384 S.W.3d 395
    , 400 (Tex. App.—Houston [14th Dist.] 2012, no
    pet.); see also Tex. Prop. Code Ann. § 202.003(a) (West 2013).
    B.        Limitations
    Waterford filed a motion for summary judgment, asserting the four-year
    statute of limitations barred the entirety of the Landolts’ suit because they were
    aware of the change to the restrictive covenants, by way of the change in square
    footage in 2002-2003; yet, they did not file suit until 2012. The trial court denied
    the motion as to the entirety of the suit, but ruled the Landolts’ recovery should be
    limited to four years of assessments. Liberally construing Waterford’s appellate
    brief, we conclude that Waterford argues that the evidence conclusively proved
    that all of the “[Landolts’] lawsuit should be barred by the four-year statute of
    limitations.” See Perry v. Cohen, 
    272 S.W.3d 585
    , 587 (Tex. 2008) (liberally
    construing issues presented in appellate brief based on argument section of the
    brief).
    Actions to enforce restrictive covenants are governed by the four-year
    statute of limitations. See Storck v. Tres Lagos Property Owners Ass’n, Inc., No.
    06-13-0006-CV, 
    2014 WL 3882817
    , at *11 (Tex.App.—Texarkana, Aug. 8, 2014,
    no pet. h.), --- S.W.3d --- (citing Malmgren v. Inverness Frost Residents Civic
    Club, Inc., 
    981 S.W.2d 875
    , 877 (Tex. App.—Houston [1st Dist.] 1988, no pet.);
    Buzbee v. Castlewood Civic Club, 
    737 S.W.2d 366
    , 368 (Tex. App.—Houston
    [14th Dist.] 1987, no writ).
    The Landolts filed suit after the May 2012 vote to make official the change
    to the square footage set forth in the Master Declaration. The judgment limited the
    Landolts’ recovery to four years, due to the four-year statute of limitations. We
    hold Waterford did not conclusively prove that limitations barred the entirety of
    the Landolts’ claim. Therefore, we overrule Waterford’s first issue.
    7
    C.    Square footage correction
    Next, Waterford contends the trial court erred by (1) determining that the
    2002-2003 vote to correct the square footage of Reserve G, the Oaks section in
    which the Landolts live, was invalid, (2) finding the May 2012 vote was invalid,
    and (3) awarding damages and attorneys’ fees to the Landolts.
    1.     Board action in 2002-2003
    The Landolts’ suit urged the 2002-2003 change violated Section 2.5 of the
    Master Declaration, which provides: “If additional Property is hereafter made
    subject to or removed from the provisions of this Declaration . . . the Pro Rata
    Share of an Owner . . . of a Reserve or Lot . . . shall not be increased as a result of
    the addition of Property without the written consent of that Owner . . . .”
    Waterford argued no property was added to the subdivision, and there is no
    evidence that property was added; therefore, Section 2.5 is inapplicable.
    Waterford also argued the board’s action to correct a typographical error is
    consistent with the specific language of the Master Declaration and a construction
    of the entire document. Waterford points out the Plat for Waterford Harbor,
    incorporated in the Master Declaration, identifies the square footage of Reserve G
    as 594,254, as does the Declaration specific to the Oaks section. Only Exhibit B
    attached to the Master Declaration contained the typographical error of 394,254
    square feet. There is no evidence the 394,254 figure was accurate, and there is no
    evidence to contradict the 594,254 figure set forth on the Plat attached to the
    Master Declaration and on the Oaks Declaration. Further, both parties agreed the
    Declarations were unambiguous and that they were bound by their terms.
    Construing the Master Declaration, and the attached Plat, as well as the Oaks
    Declaration, it appears the 394,254 square feet figure listed on Exhibit “B” was a
    8
    typographical error and the intent of the parties was that the figure to be used for
    calculation of the assessment was 594,254, not 394,254, square feet.
    “Typographical errors ‘must yield to the well-established doctrine that written
    contracts will be construed according to the intention of the parties,
    notwithstanding errors and omissions, by perusing the entire document and to this
    end, words, names, and phrases obviously intended may be supplied.’” Edberg v.
    The Laurel Canyon Ranch Architectural Review Committee, No. 04-10-00395-CV,
    
    2011 WL 541134
    , at *4 (Tex. App.—San Antonio Feb. 16, 2011, pet. denied)
    (mem. op.) (citing Ussery Invs. v. Canon & Carpenter, Inc., 
    663 S.W.2d 591
    , 593
    (Tex. App.—Houston [1st Dist.] 1983, writ dism’d)) (holding where there were
    eight references to “Unit 2” and two to “Unit 1,” the references to “Unit 1” were
    typographical errors, which may be corrected); see also 
    Pilarcik, 966 S.W.2d at 478
    (concluding covenant is examined in light of the circumstances when written).
    Additionally, the Landolts included in their original petition that the Plat
    records referred to the 594,254 figure, and the Landolts urged with respect to the
    footage shown for their lot in July 2012, the Plat figures should have been used,
    rather than those set out in the GCAD records. That the Landolts asserted the
    square footage figures contained in the Plat records should have been used is
    consistent with the parties’ intent, as reflected in the documents, that the Plat and
    its 594,254 square foot figure would control.
    We hold the 2002-2003 action was proper, and we sustain Waterford’s
    second issue.
    2.     May 2012 vote
    The election results reflected Amendment 1 passed with 55.43% approval.
    The Landolts contend the May 2012 vote, amending the Master Declaration to
    reflect 594,254 square feet, was invalid for three reasons: (1) they did not vote
    9
    because they were out of town; (2) Reserve A was not voted;4 and (3) incorrect
    footage was voted. Waterford argue the change in the total square footage for
    Reserve G bears only on the calculation of assessments and does not affect voting
    rights, and that the use of GCAD figures for individual lots does not invalidate the
    2012 voting.
    Voting is governed by Section 3.2 of the Master Declaration and provides
    for two classes of voting members:
    (a) Class A Members shall be all Members, provided that Declarant
    shall not be a Class A Member until it ceases to be a Class B Member
    as provided in Section 3.2(b). Except as otherwise provided on
    Exhibit “B” to this Declaration or as reallocated as provided in the
    definition of Pro Rata Share or under Section 2.5, each Class A
    Member shall be entitled to one vote for each Net Square Foot of land
    contained in the Reserve or Lot owned by that Member.
    Reallocation is contemplated within the definition of Pro Rata Share. It provides
    that “the Board may delegate to the Subassociation or Owner(s) of any Reserve or
    Lot the right to allocate the Pro Rata Share among the Owners within that Reserve
    or Lot as they determine . . . .” Reallocation under Section 2.5 occurs, as set forth
    above, only if property is added to the subdivision; there was no addition here.
    Thus, neither of these provisions is applicable, as there was no allocation within
    the sub-association, and there was no addition of property.
    Michael Landolt testified the May 2012 vote on Amendment 1 did not
    obtain the requisite percentage approval and that there was never a vote as to their
    Pro Rata Share. The Landolts rely on Section 11.2 as support:
    Declarant acting alone shall have the right to record any amendment
    required to correct any grammatical, typographical or mathematical
    error in this Declaration. . . . Notwithstanding the foregoing
    4
    This point is addressed in the discussion of the Landolts’ second cross-point.
    10
    provisions, however, any amendment or modification to this
    Declaration or any supplemental declarations which (i) amends article
    Three [Voting] or Article Eight [Development and Land Use] of this
    Declaration or increases the Pro Rata Share of any Owner for the
    payment of Assessments shall require the vote of a majority of the
    total eligible votes of each Class of Members of the Association. . . .
    (Emphasis added).
    Michael Landolt testified the Declarant “acting alone” had the right to
    correct a typographical error. He also answered “no” when counsel for appellant
    asked, “It [Master Declaration] doesn’t say only the Declarant may correct
    typographical errors, does it?”
    The Landolts further assert that the Reserve A property which was deeded
    by Declarant to settle the class-action lawsuit should have been voted.5 This
    argument ignores the unambiguous language of Section 3.2, which provides that
    each Class A Member shall be entitled to one vote for each Net Square Foot of
    land “owned by that Member.” Reserve A was never owned by any Member; the
    terms of the settlement agreement, which Michael Landolt testified they signed,
    evidence the fact it was deeded to the Master Association.
    Finally, the Landolts argue the square footage numbers were inaccurate;
    specifically, they believed their lot was 36,200 square feet, but the GCAD numbers
    on which the Landolts were appraised and taxed, showed 35,911. The Landolts
    argued the discrepancy reduced the number of their votes. In an attempt to obtain
    an accurate figure, they engaged Dale Hardy, a surveyor who had done work in
    Waterford Harbor on prior occasions, to review the original plat and to determine
    accurate square footage values for every lot in the subdivision. While Hardy did
    not physically perform a survey of the property, he found various differences in the
    square footage of certain areas contained within Waterford Harbor.
    5
    Further analysis relating to Reserve A is included in Section E, infra.
    11
    The trial court’s judgment did not address the issue involving the square
    footage of the individual lot. Rather, it invalidated the May 2012 vote on the basis
    of its ruling the 2002-2003 correction was improper. Yet, the May 2012 vote was
    determined by the votes of the “Net Square Foot” of land under Section 3.2—not
    the number of square feet in the entire Reserve where the Landolts live, which is
    used to calculate homeowner assessments. The correction to the square footage of
    the entire Reserve had no bearing on, and changed nothing concerning the voting
    of, individual lot owners.
    Further, even if the Net Square Foot figure were involved in the May 2012
    vote, the Master Declaration does not identify the amount of square footage in each
    individual lot, nor does it specify which number (GCAD or some other) should be
    used for assessing the homeowner’s vote pursuant to Section 3.2. Thus, it would
    be reasonable to conclude that Waterford could use GCAD figures.
    In construing the Declaration, our primary concern is to ascertain and give
    effect to the intentions of the parties as expressed in the document. See Kelley-
    Coppedge, Inc. v. Highlands Ins. Co., 
    980 S.W.2d 462
    , 464 (Tex. 1998). To
    ascertain the parties’ true intentions, we examine the entire agreement in an effort
    to harmonize and give effect to all provisions so that none will be rendered
    meaningless. See MCI Telecomms. Corp. v. Tex. Utils. Elec. Co., 
    995 S.W.2d 647
    ,
    652 (Tex. 1999). Whether a Declaration is ambiguous is a question of law for the
    court. Heritage Res., Inc. v. NationsBank, 
    939 S.W.2d 118
    , 121 (Tex. 1996). It is
    ambiguous when its meaning is uncertain and doubtful or is reasonably susceptible
    to more than one interpretation. See 
    id. However, when
    a Declaration is worded
    so that it can be given a certain or definite legal meaning or interpretation, it is
    unambiguous, and the court construes it as a matter of law. See Am. Mfrs. Mut.
    Ins. Co. v. Schaefer, 
    124 S.W.3d 154
    , 157 (Tex. 2003). We cannot rewrite the
    12
    Declaration or add to its language under the guise of interpretation. See American
    Mfrs. Mut. Ins. 
    Co., 124 S.W.3d at 162
    . Rather, we must enforce it as written. See
    Royal Indem. Co. v. Marshall, 
    388 S.W.2d 176
    , 181 (Tex. 1965).
    The Landolts’ position confuses the unambiguous provisions of the Master
    Declaration. The 2002-2003 change had no bearing on the outcome of the May
    2012 vote. Additionally, the Landolts did not vote in that election and offered no
    evidence to show how, if at all, the difference between the 36,200 square feet
    Michael Landolt testified they owned and the 39,500 referenced in GCAD records
    would have impacted the vote to amend the Master Declaration to reflect the
    594,254 square footage figure for Reserve G.
    We conclude the trial court erred in its finding that the May 2012 vote was
    invalid due to the correction of the typographical error in 2002-2003, and we
    sustain Waterford’s third issue. Because we hold the 2002-2003 change and May
    2012 vote were valid, we sustain Waterford’s fourth issue on Landolts’ recovery of
    monetary damages and attorneys’ fees.
    D.    Characterization of the “Oaks park”
    In their first cross-point, the Landolts contend the trial court erred in finding
    “Oaks park,” located in the Oaks section of Waterford Harbor, was properly
    declared as a park. The Landolts assert the park should be considered part of the
    “Common Facilities” of Waterford Harbor, and thus, exempted from assessment.
    We disagree.
    Article One of the Master Declaration, applicable to all of Waterford Harbor,
    defines “Common Facilities” as:
    (i) any and all portions of the Property designated on the Plat as
    private streets, (ii) all Bulkhead, and (iii) such other areas of the
    property or other property shown on the Plat as Common Facilities . . .
    13
    . The Common Facilities are to be held, maintained and operated for
    the common use and benefit of the Owners.” Nowhere in this section
    is a park contemplated as part of the “Common Facilities.
    The Landolts rely on the language in the Oaks Declaration; that is, the
    Declaration of the more private, upscale area within Waterford Harbor where the
    Landolts live.   The Oaks Declaration in Section 1.06, “Community Area” is
    defined as:
    Those portions of Waterford Oaks specifically designated in the
    Subdivision Plat as Restricted Reserves A, B, and C, Common Area,
    or similar designation, the private streets in Waterford Oaks . . . The
    Community Area may include, without limitation, piers, docks, and
    other improvements or other facility constructed by the Association or
    by the Declarant. . . .
    First, there is no evidence that Waterford Harbor Master Association owns
    the Oaks park area. Rather, Waterford Harbor Oaks Homeowners Association, a
    “sub-association,” has been, and remains, the owner of Reserves A, B, and C, as
    evidenced on the 1992 warranty deed from the Declarant [Developer] to the
    association. Second, the terms “Common Facilities” and “Common Area” are not
    interchangeable and both derive from different declarations. In any event, both
    declarations exempt from assessment all “Common Facilities” and “Common
    Area.” Additionally, both declarations provide that voting is based on ownership
    of the individual lot in the subdivisions, pursuant to Section 3.2 of the Master
    Declaration.
    Article Four of the Master Declaration, Section 4.2 provides that
    assessments shall be made annually and “shall be used for the purpose of
    promoting the enjoyment and welfare of the Owners and for the maintenance and
    improvement of the Common Facilities and other portions of the Property . . . .”
    Section 4.4 provides “Each Owner shall pay its Pro Rata Share of the Association’s
    annual Regular Assessment . . . .” Section 4.11 exempts from the Assessments the
    14
    Common Facilities and all portions of the Property dedicated.             Further, the
    definition of “Pro Rata Share” in the Master Declaration, referred to above,
    specifically provides the denominator of the fraction to determine an owner’s share
    “. . . is the number of Net Square Feet in the Reserve, excluding all Common
    Facilities.”
    The Landolts assert here that because the Oaks park is a “Common Area”
    under the Oaks Declaration, applicable to the Oaks sub-association, and is exempt
    from assessment under that declaration,6 it also must be considered “common
    facilities” and be exempt from the Pro Rata Share for assessment under the Master
    Declaration at issue. There is no evidence to support the Landolts’ contention.
    There is nothing ambiguous about the language of these restrictive
    covenants, and the Landolts do not argue the terms are ambiguous.               When
    construing a restrictive covenant, our primary goal is to ascertain and give effect to
    the intent of its drafters, using the language of the instrument as our guide. 
    Wiese, 384 S.W.3d at 400
    (citing Uptegraph v. Sandalwood Civic Club, 
    312 S.W.3d 918
    ,
    925 (Tex. App.—Houston [1st Dist.] 2010, no pet.) We will afford words and
    phrases their commonly accepted meanings. 
    Id. Here it
    is clear the Master Declaration excluded for purposes of calculating
    the Pro Rata Share only the “Common Facilities” located in Waterford Harbor.
    The Master Declaration uses only the phrase “Common Facilities” and never refers
    to “Common Area,” as does the Oaks Declaration. Further, Article Ten of the
    Master Declaration, containing seven sections, deals with “Common Facilities and
    Easements.”    It speaks to numerous issues including the use of and title to
    Common Facilities, restrictions on conveyance, obtaining easements across the
    6
    Section 7.08 of the Oaks Declaration exempts “Common Area” from calculation of
    assessments.
    15
    Common Facilities, borrowing money to improve or mortgage all or part of the
    Common Facilities, and parking and access to the Common Facilities. None of the
    provisions refers to the “Community Area” defined in the Oaks Declaration.
    The parties’ intent is expressed in the words used, and the words omitted,
    from each declaration. That the Master Declaration did not include the “Oaks
    park” as “Common Facilities,” which would exempt it from the calculation of the
    Pro Rata Share under the Master Declaration, evidences the intent that the park be
    included for purposes of calculating assessments under the Master Declaration.
    Similarly, that the Oaks Declaration does not refer to “Common Facilities,” as it
    deals with matters of voting and assessments, evidences that the parties intended
    that Common Area requires different treatment. In short, had the drafters of both
    the Master Declaration and the Oaks Declaration intended that “Common
    Facilities” and “Common Area” include the same property, the terms used would
    have been the same. Because different terms were used, neither of which is
    ambiguous, all must be construed in light of the entire agreement. Moran v.
    Memorial Point Property Owners Association, 
    410 S.W.3d 397
    , 402 (Tex. App.—
    Houston [14th Dist.] 2013, no pet.). Therefore, we conclude different meanings
    were intended by the use of different words. Thus, we affirm the trial court’s
    conclusion that the “Oaks park” should be included for purposes of assessment
    under the Master Declaration and we overrule the Landolts’ first cross-point.
    E.    Reserve A
    In 2001-2002, certain homeowners, including the Landolts, filed a class-
    action suit asserting claims against the Declarant [developer] for improper or
    excess assessment of homeowner fees. To settle that suit, the Declarant paid the
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    homeowners $375,000 and deeded Reserve A7 to the Master Association. Prior to
    the time it was deeded, the Declarant was voting Reserve A. Once Reserve A was
    deeded to the Master Association, the Landolts contended it could be included for
    purposes of voting; however, it was not. The trial court held Reserve A should not
    have been allocated to all owners for purposes of voting. We agree.
    The Master Declaration, Article Three, Section 3.2 limits voting to “one vote
    for each Net Square Foot of land contained in the Reserve or Lot owned by that
    member.”      (Emphasis added).         The language of this provision is clear and
    unambiguous. Reserve A was deeded to the Waterford Harbor Master Association,
    a Texas corporation. Neither the Landolts nor any other resident owns, or has an
    ownership interest in, any part of Reserve A; therefore, it cannot be included for
    purposes of voting. The words of Section 3.2 relating to voting “can be given a
    definite or certain legal meaning,” and they must be construed to give them their
    purposes and intent. See American Golf Corp., 
    65 S.W.3d 277
    at 280. The words
    require that ownership of property is a prerequisite to voting. Therefore, because
    the Landolts do not own Reserve A, they cannot vote all or part of the square
    footage reflected in it. There is no evidence to support the Landolts’ position, and
    they offer no authority to support the proposition that the trial court erred. We
    overrule the Landolts’ second cross-point.
    III. CONCLUSION
    Because we conclude that the change in 2002-2003 was to correct a
    typographical error, and the May 2012 vote was premised on a different basis, we
    reverse the trial court’s judgment insofar as it provides that the 2002-2003 change
    7
    Reserve A is a portion of the subdivision which originally had been zoned as “light
    commercial,” but was not shown in that manner on the Plat. Michael Landolt testified the
    owners would not accept the “light commercial” zoning; therefore, the Declarant deeded it to the
    Master Association to be used for residential purposes.
    17
    and the May 2012 vote was invalid. Therefore, we reverse and render the award of
    monetary damages and attorneys’ fees in favor of the Landolts. We affirm the trial
    court’s judgment declaring the “Oaks park” area is not a “Common Facility,” and
    rejecting the argument that Reserve A was to be allocated for voting. We render
    judgment that Waterford recover attorneys’ fees in the amount of $33,263.50, plus
    an additional $15,000.00 for a successful appeal to the court of appeals, and
    $15,000.00 for a successful appeal to the Supreme Court of Texas.
    /s/    John Donovan
    Justice
    Panel consists of Chief Justice Frost and Justices Donovan and Brown.
    18