Dao v. Mission Bend Homeowners Association, Inc.
Harris · TX · Court of Appeals of Texas, First District (Houston)
MIXED · hearings
What happened
Lanny V. Dao installed a memorial fountain in his Mission Bend front yard without ACC approval. After the association's certified § 209.006 notice, he timely requested a Chapter 209 board hearing; no hearing was held. After a bench trial in Harris County the court ordered removal and awarded the association $5,193.82 in attorney's fees. On appeal the First Court of Appeals held § 209.007's hearing is mandatory when the owner may cure and timely requests a hearing, but noncompliance is not jurisdictional—abatement, not automatic dismissal, is the typical cure. Independently, § 209.008(b) bars owner liability for association attorney's fees incurred before conclusion of a requested 209.007 hearing. Because Mission Bend never held the hearing, the entire fee award was eliminated while the removal injunction was affirmed.
What the court (or agency) held
Texas Property Code section 209.007's board hearing is mandatory when the owner is entitled to cure and timely requests a hearing, but noncompliance is not jurisdictional—abatement, not automatic dismissal, is the typical cure. Independently, section 209.008(b) bars an owner from liability for association attorney's fees incurred before conclusion of a requested 209.007 hearing. Because Mission Bend never held Dao's requested hearing on the fountain dispute, the court of appeals eliminated the entire fee award while affirming the injunction requiring removal of the fountain. MIXED.
Why this matters for members
This result is MIXED — a partial win, not a clean sweep on every claim. Skipping a timely requested Chapter 209 hearing may not void the enforcement case, but it can wipe out pre-hearing attorney's fees. Owners should request the hearing in writing and preserve the fee issue.
What the member did
Requested a written board hearing within 30 days of the section 209.006 notice and challenged recoverability of pre-hearing attorney's fees on appeal.
What did not work
Failure to request abatement for the missed hearing waived dismissal/abatement relief; the injunction to remove the fountain was affirmed.
Questions for the board
- Was a § 209.007 hearing offered and held after a timely owner request?
- Are we seeking attorney's fees incurred before a requested hearing concluded?
- What cure opportunities were stated in the § 209.006 notice?
Questions for a lawyer
- Does § 209.008(b) bar the fee award because no hearing was held?
- Was abatement requested, and what was waived?
- How should hearing noncompliance be raised without abandoning merits defenses?
Citation
Dao v. Mission Bend Homeowners Association, Inc., No. 01-20-00597-CV (Tex. App.—Houston [1st Dist.] Aug. 2, 2022) (2022-08-02). Court of Appeals of Texas, First District (Houston). Outcome chip: MIXED — honest partial (hearings). Flags: MIXED. Source: https://law.justia.com/cases/texas/first-court-of-appeals/2022/01-20-00597-cv.html
_General information, not legal advice. Outcomes turn on facts and current law._
General information, not legal advice. Outcomes turn on facts and current law.