author: TERRY JENNINGS, Justice.

text:
    WILCHESTER WEST CONCERNED HOMEOWNERS LDEF, INC., Appellant, v. WILCHESTER WEST FUND, INC., Wilchester Club, and Wilchester Owners Committee, Appellees.
    No. 01-03-00436-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Aug. 11, 2005.

      David Alfred Kahne, Houston, for Appellant.
    John Bradley Mitchell, Stephanie L. Quade, Roberts, Markel & Folger, L.L.P., Marc D. Markel, Clayton R. Hearn, Roberts, Markel & Guerry, P.C., Houston, for Appellees.
    Panel consists of Justices NUCHIA, JENNINGS, and KEYES.
   OPINION ON MOTION FOR REHEARING

TERRY JENNINGS, Justice.

We grant appellant’s motion for rehearing, withdraw our opinion dated June 17, 2004, and substitute this opinion in its place.

In this suit for declaratory relief, which concerns a dispute between a group of homeowners and the homeowners’ associations of two neighboring subdivisions, appellant, Wilchester West Concerned Homeowners LDEF, Inc. (WWCH), challenges the trial court’s rendition of summary judgment in favor of appellees, Wil-chester West Fund, Inc., Wilchester Club, and Wilchester Owners Committee, on all of WWCH’s claims.

WWCH is a non-profit organization of homeowners from the Wilchester West subdivision, which is located in Harris County. The Wilchester West Fund, Inc. (Wilchester West HOA) is the homeowners’ association for the Wilchester West subdivision. The Wilchester Owners Committee (Wilchester HOA) is the homeowners’ association for the neighboring Wilchester subdivision. The Wilchester Club (the Club) is a separate, non-profit corporation that owns and maintains recreational swimming and tennis facilities at two locations adjacent to the two subdivisions.

In three issues, WWCH argues that the trial court erred in granting the joint motion for summary judgment filed by the Club and the homeowners’ associations and in denying WWCH’s motion for summary judgment because (1) in the absence of amendments to the homeowners’ deed restrictions, the homeowners’ associations did not have the authority to enter into a contract with the Club to obtain use privileges for all homeowners in exchange for an increase in the amount of the homeowners’ annual assessments; (2) a petition circulated by the homeowners’ associations seeking approval from a majority of the homeowners to amend the homeowners’ deed restrictions was insufficient because it contained “material non-disclosures or misrepresentations”; and (3) as a matter of law, the homeowners’ associations did not obtain authority to enter into a contract with the Club or to “force all homeowners to join” the Club.

We affirm.

Factual and Procedural Background

In August 1999, the trustees of Wilches-ter HOA, Wilchester West HOA, and the Club formed the ‘Wilchester Club Resolution Committee” (the Resolution Committee) to study and to prepare recommendations concerning the financial future of the Club and its relationship with the subdivisions. At that time, membership in the Club was voluntary, and its members were required to pay an initiation fee and annual membership dues in exchange for the privilege of using the Club’s facilities. The Resolution Committee subsequently prepared and circulated, to the homeowners of both subdivisions, a letter and a “White Paper” setting forth its conclusion that the Club was “not financially viable given its present membership base, the market clearing price of neighborhood club memberships in West Houston, normal pool and tennis facility operating costs, and the maintenance cost requirements for two facilities that are approximately 35 years old.” The Resolution Committee recommended that, to preserve the viability of the Club and to provide funds needed to improve and to maintain its facilities, the homeowners’ associations vote either to merge with the Club or to increase the homeowners’ annual assessments and to segregate such funds for the use of the Club.

The Resolution Committee’s recommendations were presented and discussed at subsequent meetings of the Wilchester West HOA. At a special meeting of the Wilchester West HOA in December 1999, a majority of the homeowners from that subdivision, appearing in person or by proxy, voted against a proposal that would have granted membership in the Club to all homeowners and would have increased the homeowners’ annual assessment by $160, with such increase to have been dedicated for the use of the Club.

In March 2000, a majority of the homeowners of the Wilchester subdivision voted by petition in favor of amending their deed restrictions to provide that each homeowner, by virtue of his lot ownership, would become a voting member of the Club and would pay a $160 increase in their annual homeowners’ assessment, with such increase to be paid by the Wil-chester HOA to the Club. That same month, the board of trustees of the Wil-chester West HOA circulated a letter proposing a similar amendment to the deed restrictions for homeowners in the Wil-chester West subdivision. Petitions were circulated to the homeowners in the Wil-chester West subdivision, and a majority of the homeowners voted in favor of amending their deed restrictions as proposed.

In April 2000, representatives of the Club and of the homeowners’ associations executed a “Use Agreement” memorializing the Club’s agreement to extend membership to homeowners of both subdivisions in exchange for a $160 increase in the homeowners’ annual assessments, to be paid by the homeowners’ associations to the Club. The Club also agreed to amend its by-laws so that the Club’s board of directors would be comprised of 10 homeowners, with five elected from each subdivision. The Use Agreement, as well as the amended deed restrictions for both subdivisions, were subsequently filed among the Harris County public property records.

In October 2001, WWCH sued the Club and the homeowners’ associations, alleging that (1) the Wilchester West HOA had failed to comply with “the deed restrictions and applicable law” in conducting the petition drive to amend the deed restrictions, and (2) the Use Agreement reached between the homeowners’ associations and the Club violated the deed restrictions for homes within the Wilchester West subdivision. In its petition, WWCH characterized the basis for its suit as “a dispute about whether one group of homeowners can commence taxing their neighbors — indefinitely, on pain of foreclosure — to subsidize a private pool club that the neighbors do not want to join.” As enumerated in its petition, WWCH sought a judgment from the trial court declaring that:

a. Wilchester West homeowners retain full authority to amend their annual assessment by majority vote as provided in the deed restrictions;
b. Wilchester West homeowners retain full authority to amend any provision of their deed restrictions, or to eliminate their deed restrictions entirely, by majority vote as provided in the deed restrictions;
e. trastees of the [Wilchester West HOA] never obtained authority to reduce homeowner powers specifically reserved in the deed restrictions;
d. neither trustees of the [Wilchester West HOA] nor any group of Wil-chester West homeowners ever obtained authority to force unwilling homeowners in Wilchester West to join [the Club], or any organization except the [Wilchester West HOA]; and
e. trustees of the [Wilchester West HOA] never obtained authority to enter into the Use Agreement, and so the Use Agreement is void.

WWCH also sought recovery of its attorney’s fees and costs. The homeowners’ associations and the Club answered WWCH’s lawsuit and generally denied its allegations.

WWCH subsequently filed a motion for summary judgment, based on the claims in its lawsuit. In its motion, WWCH asserted that

[b]y this motion, [WWCH] seeks declaratory judgments that [Wilchester West HOA] could not force homeowners to join the private club, and could not adopt the Use Agreement. As an alternative basis for relief, even if somehow [Wilchester West HOA] could make such an agreement, this motion seeks declaratory judgments that [Wilchester West HOA] did not properly obtain such authority.

The homeowners’ associations and the Club responded to WWCH’s motion for summary judgment and filed a joint motion for summary judgment, in which response and motion they argued that the Wilchester West HOA (1) had the authority, under the provisions of the applicable deed restrictions, to amend the deed restrictions by agreement of a majority of the homeowners; (2) as a non-profit corporation, had the authority to enter into a contract with an outside party such as the Club; and (3) made sufficient disclosures to Wilchester West subdivision homeowners to inform them of the purposes and effects of the amendments to the deed restrictions. The homeowners’ associations and the Club also argued that the requested relief “would significantly impact the property rights of every owner in both subdivisions” but that the additional homeowners in the subdivisions had not been joined in the lawsuit.

Without stating the basis for its rulings, the trial court denied WWCH’s motion for summary judgment and granted the joint summary judgment motion filed by the homeowners’ associations and the Club.

Declaratory Judgment

As noted above, WWCH sought declaratory relief from the trial court, as well as attorney’s fees. However, in its petition, WWCH did not expressly identify its suit as a declaratory judgment action brought under the Uniform Declaratory Judgments Act. See Tex. Civ. PRAC. & Rem. Code Ann. §§ 37.001-011 (Vernon 1997 & Supp.2004-2005) (DJA). The DJA provides

A person interested under a deed, will, written contract, or other writings constituting a contract or whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract, or franchise may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status, or other legal relations thereunder.

Id. at § 37.004(a). The subjects enumerated by the DJA are not exclusive. Bonham State Bank v. Beadle, 907 S.W.2d 465, 468 (Tex.1995). Because the record indicates that the nature of the relief sought by WWCH was declaratory, we treat WWCH’s suit as having been brought within the provisions of the DJA.

Joinder of Affected Homeowners

In their joint response to WWCH’s motion for summary judgment and in their own joint motion for summary judgment, the homeowners’ associations and the Club noted that the relief requested by appellant would “significantly impact the property rights of every owner in both subdivisions” and that these homeowners had not been made parties to the lawsuit. The homeowners’ associations and the Club assert that summary judgment against WWCH on all of its claims was proper, in part, because WWCH had failed to join all affected homeowners as parties to the suit.

In our original opinion, we held that all other homeowners in the subdivisions whose property rights and interest were directly at stake were “indispensable parties,” and WWCH’s failure to join these parties deprived the trial court of subject matter jurisdiction over WWCH’s declaratory judgment action. This holding was based on section 37.006 of the DJA, which provides that “[w]hen declaratory relief is sought, all persons who have or claim any interest that would be affected by the declaration must be made parties.” Tex. Civ. PRAC. & Rem.Code Ann. § 37.006 (Vernon 1997). In its motion for rehearing, WWCH argues that in light of two recent Texas Supreme Court opinions, Simpson v. Afton Oaks Civic Club, 145 S.W.3d 169 (Tex.2004) and Brooks v. Northglen Ass’n, 141 S.W.3d 158 (Tex.2004), the trial court had subject matter jurisdiction over the dispute without joinder of all affected homeowners, and thus we should adjudicate the dispute on the merits.

In Brooks, a homeowners’ association amended its subdivision’s deed restrictions to expand the association’s board and to charge late fees on unpaid assessments. 141 S.W.3d. at 161. A group of homeowners complained that the board acted outside the bounds of the deed restrictions by adopting these amendments. Id. The association filed suit, seeking, in part, a declaration that its actions were valid. Id. The homeowners counterclaimed for a declaratory judgment that the association had no authority to take the disputed actions. Id. The trial court granted the association’s summary judgment on the merits, and the court of appeals affirmed in part and reversed in part. Id. At the supreme court, the association argued for the first time that the trial court lacked subject matter jurisdiction over the case because the plaintiffs failed to join all affected homeowners as parties. Id. at 162.

The supreme court rejected the association’s jurisdictional argument, noting that the DJA provided the trial court with jurisdiction to declare the rights, status, and other legal relations for homeowners who were interested under a deed or written contract. Id. (citing Tex. Civ. PRAC. & Rem. Code Ann. §§ 37.003(a), 37.004(a) (Vernon 1997)). The court concluded that the question was not whether jurisdiction was lacking, but rather “whether the trial court should have refused to enter a judgment when a subset of the homeowners was not joined in the lawsuit.” Id. (Emphasis added.).

Similarly, in Simpson, a homeowner sought to enjoin a subdivision from creating mandatory assessments and membership to a property owner’s association. 141 S.W.3d at 170. The court of appeals dismissed the case for lack of subject matter jurisdiction because the plaintiff failed to join all property owners in his subdivision. Id. The supreme court, citing its decision in Brooks, reversed and remanded the case to the court of appeals.

Brooks provides the proper framework for the jurisdictional analysis in this case. As stated in Brooks, rule 39 governs joinder of persons under the DJA and “like the [DJA], mandates joinder of persons whose interests would be affected by the judgment.” 141 S.W.3d at 162; see also Tex.R. Civ. P. 39; Tex. Crv. Peac. & Rem. Code Ann. § 37.006. “Rule 39 determines whether a trial court has authority to proceed without joining a person whose presence in the litigation is made mandatory by the [DJA].” Brooks, 141 S.W.3d at 162. Rule 39(a) states:

A person who is subject to service of process shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest.

Tex.R. Civ. P. 39(a).

Rule 39(a)(1) “requires the presence of all persons who have an interest in the litigation so that any relief awarded will effectively and completely adjudicate the dispute.” Brooks, 141 S.W.3d at 162. Here, rule 39(a)(1) would not have precluded the trial court from reaching the merits because nothing prevented the trial court from rendering complete relief between the Wilchester West HOA and WWCH. Likewise, rule 39(a)(2)(i) would not have precluded consideration of the merits because a declaratory judgment does not prejudice the rights of any person that is not a party to the proceeding, and any non-joined homeowner would be able to pursue individual claims challenging the associations’ authority to take the disputed actions, notwithstanding a ruling in this case. Id. at 163; see also Tex. Civ. PRac. & Rem.Code Ann. § 37.006(a) (stating “[a] declaration does not prejudice the rights of a person not a party to the proceeding.”).

We recognize that the Club and the homeowners’ associations may be subject to the possibility of inconsistent judgments since not all of the homeowners in the subdivision have been joined. However, as in Brooks, this possibility was caused by their “own inaction.” Brooks, 141 S.W.3d at 163. The Club and the homeowners’ associations “could have sought relief at trial by urging the court, among other things, to abate the case, join absent homeowners, or grant special exceptions.” See id.; see also Truong v. City of Houston, 99 S.W.3d 204, 216 (Tex.App.-Houston [1st Dist.] 2002, no pet.) (stating “proper procedural tool used to raise an issue of a defect in parties is a motion to abate” and finding that challenge to defect in parties contained in summary judgment response was insufficient to preserve issue for review); Dahl v. Hartman, 14 S.W.3d 434, 436 (Tex.App.-Houston [14th Dist.] 2000, pet. denied) (holding that trial court did not abuse its discretion in abating suit and ordering joinder of all property owners because declaratory judgment action seeking invalidation of deed restrictions would affect property interests of all owners).

The Club and the homeowners’ associations argue that this case is distinguishable from Brooks and Simpson because in those cases the associations presented jurisdictional arguments for the first time on appeal. While it is true that the Brooks court concluded that the association waived its complaint about the absence of non-joined persons, Brooks also indicates that the failure to join all other homeowners in the subdivision does not deprive the trial court of jurisdiction. Brooks, 141 S.W.3d at 162-63. In light of Brooks and Simpson, we must reject the argument that a court does not have jurisdiction to hear a case similar to the one presented here unless all property owners are joined. Instead, under Brooks, the Club and the homeowners’ associations should have sought abatement or joinder to protect their interests, and if the trial court denied such relief, then they should have sought review of the trial court’s denial of their efforts to seek such relief. See id.

The Club and the homeowners’ associations also argue in their response to WWCH’s motion for rehearing that WWCH is not an owner of property in Wilchester or Wilchester West and that WWCH did not present any evidence of its authority to represent owners in these subdivisions. We interpret this argument as a challenge to WWCH’s organizational or associational standing. The Texas Supreme Court has set forth a three-prong test to determine whether an organization has standing to bring suit: (1) its members have standing to sue on their own behalf, (2) the interests the organization seeks to protect are germane to the organization’s purpose, and (3) neither the claim nor the relief requested requires the participation of individual members in the lawsuit. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 447-48 (Tex.1993); Hays County v. Hays County Water Planning P’ship, 106 S.W.3d 349, 357 (Tex.App.-Austin 2003, no pet.).

As to the first prong, WWCH has alleged that its members have suffered an injury as a result of the actions taken by the Wilchester West HOA, and thus its members would be able to bring suit in their own right. See Hays County, 106 S.W.3d at 357 (finding individual members of community partnership who owned property in area impacted by disputed transportation plan had standing to sue on them own behalf). In satisfaction of the second prong, WWCH presented evidence that it was formed by a group of homeowners to challenge the amendments to the deed restrictions at issue in this case and the actions taken by Wilchester West HOA pursuant to those amended restrictions. See id.; Save Our Springs Alliance, Inc. v. Lowry, 934 S.W.2d 161, 163 (Tex.App.-Austin 1996, orig. proceeding [leave denied]) (finding suit brought by alliance to protect water quality in a certain geographic region reflected alliance’s expressed purpose). Specifically, in support of its summary judgment motion, WWCH filed the affidavit of Bob Lemer, who testified that he was a homeowner in Wilchester West and the president of WWCH and that, in his capacity as president of WWCH, he represented 40 homeowners in the Wilchester West subdivision. Lemer further stated that WWCH’s purpose was “to challenge the Use Agreement and resulting Pool Tax....” Finally, as to the third prong, because WWCH sought declaratory relief, WWCH was not required to prove the individual circumstances of its members to obtain relief as it reasonably could be ascertained that any declaration provided would benefit the members of WWCH who were injured. See Hays County, 106 S.W.3d at 357-58 (stating that it could be reasonably ascertained that injunction would benefit members of community partnership who were actually injured by disputed transportation plan); Anderson v. New Prop. Owners’ Ass’n of Newport, Inc., 122 S.W.3d 378, 385 (Tex.App.-Texarkana 2003, pet. denied) (stating “[w]hen, as here, an association seeks declaratory or injunctive relief, it is reasonable to suppose that the relief sought will inure to the benefit of the injured members.”). Thus, we hold that WWCH has standing to bring this action and that we may adjudicate the dispute on the merits.

Amendment to Deed Restrictions

In three issues, WWCH contends that the trial court erred in granting the Clubs’ and the homeowners’ associations’ joint motion for summary judgment and in denying its own summary judgment motion. In its first issue, WWCH argues that, in the absence of the amendments to the homeowners’ deed restrictions, the homeowners’ associations did not have authority to enter into the Use Agreement with the Club. In its second issue, WWCH argues that the amendments to the deed restriction were not effective because they failed for lack of notice and because the petition circulated by the homeowners’ associations seeking approval of the amendments contained material non-disclosures that rendered the amendments invalid. In its third issue, WWCH challenges the association’s authority to enter into the Use Agreement with the Club.

A party moving for summary judgment must conclusively prove all of the elements of its cause of action or defense as a matter of law. Tex.R. Civ. P. 166a(e); Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 566 (Tex.2001); Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222-23 (Tex.1999). When, as here, both sides move for summary judgment, and the trial court grants one motion but denies the other, a reviewing court should review both sides’ summary judgment evidence, determine all questions presented, and render the judgment that the trial court should have rendered. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex.2000). When a summary judgment does not specify or state the grounds on which the trial court relied, the non-movant on appeal must negate any grounds on which the trial court could have relied, and we will affirm the summary judgment on appeal if any of the grounds presented in the motion is meritorious. See Harwell v. State Farm Mut. Auto. Ins. Co., 896 S.W.2d 170, 173 (Tex.1995); Mellon Serv. Co. v. Touche Ross & Co., 17 S.W.3d 432, 435 (Tex.App.-Houston [1st Dist.] 2000, no pet.). In other words, a non-movant is required to show that each ground alleged in the motion for summary judgment was insufficient to support summary judgment. Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex.1995).

We begin our analysis by considering whether the amendments to the deed restrictions are valid. In order to amend deed restrictions, three conditions must be met. Dyegard Land P’ship v. Hoover, 39 S.W.3d 300, 313 (Tex.App.-Fort Worth 2001, no pet.); Hanchett v. E. Sunnyside Civic League, 696 S.W.2d 613, 615 (Tex.App.-Houston [14th Dist.] 1985, writ ref'd n.r.e.). First, the instrument creating the original restrictions must establish both the right to amend and the method of amendment. Id. Second, the right to amend implies only those changes contemplating a correction, improvement, or reformation of the agreement.rather than its complete destruction. Id. Third, the amendment must not be illegal or against public policy. Id.

The Texas Property Code provides that an extension, addition to or modification of restrictions proposed by a property owners’ association may be adopted by a number of methods, including “a method permitted by the existing restrictions.” Tex. PROp.Code Ann. § 204.008(4) (Vernon Supp.2004-2005).

Paragraph 8.01 of Wilchester West’s restrictions states:

8.01. Term. These restrictions and covenants shall run with the land and shall be binding upon all parties and all persons claiming under them ... unless at any time an instrument, executed by the then Owners of a majority of the Lots within the Property, has been filed for record agreeing to change these restrictions in whole or in part, (emphasis added).

A restrictive covenant should be liberally construed “to give effect to its purposes and intent.” Tex. Prop.Code Ann. § 202.003(a) (Vernon 1995); Samms v. Autumn Run Cmty. Improvement Ass’n, Inc., 23 S.W.3d 398, 402 (Tex.App.-Houston [1st Dist.] 2000, pet. denied); Candlelight Hills Civic Ass’n, Inc. v. Goodwin, 763 S.W.2d 474, 477 (Tex.App.-Houston [14th Dist.] 1988, writ denied). Restrictive covenants should be interpreted using the general rules of contract construction, and words contained in restrictions should be given their commonly accepted meanings. Pilarcik v. Emmons, 966 S.W.2d 474, 478 (Tex.1998). Applying these rules, paragraph 8.01 unambiguously provides the homeowners in Wilchester West with the right and the means to amend the restrictions by written consent of a simple majority of the homeowners in Wilchester West filed of record. The summary judgment evidence establishes that this right was exercised by the circulation of a petition to the homeowners in Wilchester West, that a majority of the homeowners executed consents to the amendments to the restrictions, and that the amendments and consents were filed of record.

WWCH argues that the amendments are invalid for lack of notice. However, there is no specific notice requirement contained in the restrictions. Rather, the restrictions expressly permit an amendment by filing an instrument executed by the majority of homeowners. When homeowners represented by WWCH purchased homes in Wilchester West, they were on notice that the restrictions could be changed through majority vote and that there were no specific notice requirements in order for the restrictions to be amended. See Inwood N. Homeowmers’ Ass’n v. Harris, 736 S.W.2d 632, 635 (Tex.1987); Simms v. Lakewood Vill. Prop. Owners Ass’n, Inc., 895 S.W.2d 779, 788 (Tex.App.Corpus Christi 1995, no writ). Because the restrictions do not contain any specific notice requirement of a proposed amendment to the restrictions, WWCH’s notice argument fails.

WWCH also argues that the amendments are invalid because the petition circulated by the Wilchester West HOA seeking approval of the amendments contained material non-disclosures. However, the petition circulated to the homeowners of Wilchester West expressly set forth the proposed amendments to the restrictions. For example, the petition specifically stated that the restrictions would be amended to provide that (1) one of the “purposes” of the Wilchester West HOA would be the “payment of an Annual Member Fee” to the Club; (2) a portion of the annual maintenance charge would be used for payment of annual fees to the Club on behalf of all homeowners; (3) such payment would be “mandatory by virtue of the agreement” between the Club and the association; and (4) annual maintenance charges would be increased by $160.00.

The trustees of the Wilchester West HOA also stated in a cover letter accompanying the petition circulated to the Wil-chester West homeowners that if the petition was approved by the homeowners, the homeowners would increase their annual maintenance charge by $160.00 and the Wilchester West HOA would enter into a “contract” with the Club whereby the association would be obligated to pay annual fees to the Club on behalf of each member of the association. Thus, the petition provided the Wilchester West homeowners with the opportunity to review the exact language of the proposed amendments, and there is no evidence that the petition contained material non-disclosures or misrepresentations concerning the language of the amendments themselves.

Because we conclude that the proper procedures were invoked to amend the restrictions, we now consider whether the substance of the amended restrictions and the actions taken by the Wilchester West HOA pursuant to those amendments were lawful. Deed restrictions governing residential property are “generally enforceable when their language is clear, they are confined to a lawful purpose, and they are written within reasonable bounds.” Samms, 23 S.W.3d at 402 (citing Gunnels v. N. Woodland Hills Cmty. Ass’n, 563 S.W.2d 334, 338 (Tex.Civ.App.-Houston [1st Dist.] 1978, no writ)). Under the Texas Property Code, “[a]n exercise of discretionary authority by a property’s owner’s association concerning a restrictive covenant is presumed reasonable unless the court determines by a preponderance of the evidence” that such exercise was “arbitrary, capricious or discriminatory.” Tex. PRop.Code Ann. § 202.004 (Vernon 1995).

WWCH asserts that the amendments are illegal and against public policy. WWCH further asserts that the association’s entry into the Use Agreement was “arbitrary, capricious and unreasonable.” However, in Candlelight Hills Civic Ass’n, our sister court found that an association’s purchase of a neighborhood recreational facility with the association’s maintenance fund was neither unreasonable nor prohibited by law. 763 S.W.2d at 480. Similarly, in this case, we find nothing in the amendments to be illegal or against public policy. Nor do we find the associations’ decision to enter into the Use Agreement with the Club to be arbitrary, capricious or discriminatory.

The association’s decision to enter into the Use Agreement is supported by both the pre-amended and amended restrictions. The pre-amended restrictions stated that maintenance charges should be used “to promote the health, safety, welfare, and common benefit of the residents” and for “other things necessary or desirable, in the opinion of the Corporation, to maintain or improve the Property or which is considered of benefit to the Owners.” (Emphasis added.) The amended restrictions retained this broad language, generally permitting the association to use the maintenance fees for purposes benefitting the owners, but also specifically authorized the use of maintenance charges for payment of annual fees to the Club. Construing these restrictions liberally, as we are required to do, we hold that it was well within Wilchester West HOA’s discretion to enter into the Use Agreement to mandate membership in and financial support of neighborhood recreational facilities.

Our holding that the Wilchester West HOA was authorized to enter into the Use Agreement with the Club is also supported by relevant provisions of the Texas NonProfit Corporation Act and the Property Code. The Non-Profit Corporation Act grants a corporation the power to, among other things, “make contracts and incur liabilities,” and “have and exercise all powers necessary or appropriate to effect any or all of the purposes for which the corporation is organized.” Tex.Rev.Civ. Stat. Ann. art. 1396-2.02(A)(8), (15) (Vernon Supp.2004-2005). Furthermore, the Property Code states that an association is entitled to, among other things, “make contracts and incur liabilities relating to the operation of the subdivision and the property owners’ association.” Tex. PROP. Code Ann. § 204.010(a)(5) (Vernon Supp. 2004-2005). Here, after the restrictions were amended in accordance with the required procedures, the Wilchester West HOA entered into the Use Agreement. Wilchester West, an incorporated property owners’ association operating with all the general rights and benefits of a such an entity was empowered to enter into this agreement pursuant to the deed restrictions and the relevant provisions of the Property Code and Non-Profit Corporation Act.

In support of their argument that the Wilchester West HOA’s decision to enter into the Use Agreement was arbitrary, capricious, and discriminatory, WWCH points to specific teims of the Use Agreement and also complains that powers granted to the Wilchester West HOA and the Club are completely unrestricted. In regard to the specific terms of the Use Agreement, WWCH complains about the amount of the increased assessment, the duration of the Use Agreement, and the termination provisions contained in the Use Agreement. However, the amount of the increased assessment was disclosed to the Wilchester West homeowners before a majority of the homeowners voted to amend the restrictions. Additionally, Wil-chester West HOA’s entry into a long-term contract with restrictive termination provisions is compatible with the goals of the amendments, including long-term and continued operation of the Club and improvement of the Club’s facilities. WWCH argues that, absent disclosure of the specific termination clause, homeowners were entitled to assume that Wil-chester West would only enter into an agreement with the Club that was terminable at the will of a simple majority of homeowners. However, there is no contractual or other legal basis for this assertion. Furthermore, accepting WWCH’s assertion would restrict Wilchester West HOA and other homeowners’ associations to entering into contracts that are terminable at will by a simple majority of their homeowner members.

In regard to the alleged unconditional nature of the Use Agreement, WWCH complains that there are no provisions regulating the Club’s expenditure of fees generated from the residents of Wilchester West and that the Club has no obligation to act in the interest of the residents of Wilchester West. WWCH notes that since the Use Agreement imposes no conditions on the Club’s expenditures, the Club could open locations far from Wilchester West, stockpile fees paid by residents of Wilches-ter West, or build an “overly luxurious” club house. However, the Use Agreement contains several limiting provisions. For example, the Use Agreement provides that the annual membership fee of $160.00 may not be increased without the prior written approval of Wilchester West HOA’s trustees, who are elected by residents of Wil-chester West. The Use Agreement also requires that the board of directors of the Club, who would be involved in making decisions related to the expenditure of fees generated from the residents of Wilchester West, consist of homeowners in the Wil-chester and Wilchester West subdivisions. Additionally, as discussed above, the restrictions themselves contain several limitations on the discretionary authority of the Wilchester West HOA and require that annual maintenance fees be used to promote the common benefit of the homeowners. Moreover, we note that the directors of the Wilchester West HOA are required, by law, to discharge their duties in good faith and in the best interest of the association. See Tbx.Rev.Civ. Stat. Ann. art. 1396-2.28 (Vernon 2003). While it is clear that at least some residents of Wil-chester West do not wish to pay a portion of their annual maintenance fees to support the neighborhood recreational facilities operated by the Club, Wilchester West HOA was authorized to enter into the Use Agreement pursuant to the deed restrictions approved by a majority of homeowners in Wilchester West, and we do not find Wilchester West HOA’s decision to enter into the Use Agreement to be arbitrary, capricious or discriminatory.

Because the amended deed restrictions are valid and are not illegal or against public policy and because the Wilchester West HOA did not exercise its discretionary authority under these restrictions in an arbitrary, capricious or discriminatory manner, we overrule all three issues presented by WWCH. Accordingly, we hold that the trial court did not err in denying WWCH’s motion for summary judgment and in rendering summary judgment in favor of the appellees on WWCH’s action for declaratory judgment.

Conclusion

We affirm the judgment of the trial court.

      . We refer to Wilchester West HOA and Wil-chester HOA together as "the homeowners’ associations.”

      . WWCH argues on appeal that it also sought injunctive relief from the trial court. However, in its petition, WWCH did not affirmatively request such relief, but merely indicated that, at some point in the future, it might also seek some unspecified injunctive relief: "[WWCH] may seek a temporary injunction pending resolution of this matter, upon further pleading. As appropriate, [WWCH] will seek final injunctive relief.” (Emphasis added.) We note that the law presumes that a defendant will recognize and respect the rights declared by a declaratory judgment and will abide by the judgment, but that ancillary injunctive relief may be obtained when evidence shows that the defendant will not comply with the judgment. Howell v. Tex. Workers’ Comp. Comm'n, 143 S.W.3d 416, 433 (Tex.App.-Austin 2004, pet. denied); see also Tex. Civ. Prac. & Rem Code Ann. § 37.011 (Vernon 1997) (authorizing ancillary relief, including permanent injunction, to enforce declaratory judgment).

      . Cf. Tex.R. Civ. P. 71 ("When a party has mistakenly designated any plea or pleading, the [trial] court, if justice so requires, shall treat the plea or pleading as if it had been properly designated.”).

      . See also Cox v. Johnson, 638 S.W.2d 867, 868 (Tex.1982), quoting Cooper v. Texas Gulf Indus., Inc., 513 S.W.2d 200, 203 (Tex.1974) (stating that "[i]t would be rare indeed if there were a person whose presence was so indispensable in the sense that his absence deprives the court of jurisdiction.... ”); Clear Lake City Water Auth. v. Clear Lake Utils. Co., 549 S.W.2d 385, 389 (Tex.1977) (finding failure to join persons whose rights might be affected by lawsuit or declaration does not "uniformly constitute[] a jurisdictional defect”).

      . While recognizing that appellees at least raised the issue of joinder in their motion for summary judgment, Brooks and the cases cited therein indicate that appellees did not adequately “seek relief’ from the trial court on this issue. Brooks, 141 S.W.3d at 163. Brooks ’ holding is consistent with the policy behind rule 39(a)(2)(ii), which, by its terms, is designed to protect those persons who already are parties from being subject to inconsistent judgments. Tex.R. Civ. P. 39(a). This rule provides a mechanism for parties seeking to avoid this risk to join necessary parties. Id.

      . Despite these alleged jurisdictional problems, instead of simply seeking a summary judgment dismissing appellant’s declaratory judgment action, the Club and the homeowners’ associations filed a "Motion for Partial Summary Judgment Including Declaratory Judgment," seeking relief on the merits.

      . In their motion for summary judgment and in their response to WWCH's motion for summary judgment, the Club and the homeowners’ associations specifically objected to WWCH’s attempt to challenge Wilchester HOA's actions. WWCH did not present any evidence that it represents homeowners in the Wilchester subdivision. Thus, the trial court was without jurisdiction to issue a judgment with respect to any actions taken by the Wil-chester HOA. See Brooks, 141 S.W.3d at 164.

      . In their opposing motions for summary judgment, the parties did not specify whether they sought summary judgment under rule 166a(c) or (i). See Tex.R. Civ. P. 166a(c), (i). However, because the parties did not allege "no evidence” grounds in their respective motions, we review the motions as having been made under rule 166a(c).

      . In its brief, WWCH alleges that the lawyer retained to represent the Wilchester West HOA during the amendment process failed to disclose certain conflicts. Specifically, WWCH alleges that the lawyer failed to disclose that he was providing legal counsel to the Club during the amendment process and that he was interested in the transaction. However, the record indicates that this lawyer was retained by the Wilchester West HOA to facilitate the transaction between the parties. A letter authored by the lawyer and addressed to the Wilchester West homeowners concerning the proposed amendments stated that the lawyer’s advice and counsel was "solely related to ensuring that the process involved ... [was] valid.” The lawyer also informed the residents that the majority vote would win, that all homeowners had a right to and should vote, and that those homeowners opposed to the increase in maintenance fees should vote against the proposed amendments. There is no evidence in the record that the lawyer was personally involved in or interested in the transaction, and thus there is no support for WWCH's argument that the actions taken by the lawyer rendered the amendments void.

      . The Use Agreement provides for an initial term of 20 years, to be renewed for successive terms of 5 years. The Use Agreement also provides that it may be terminated with the approval of two-thirds of the respective members of the Club and the homeowners’ associations.

      . In regard to WWCH's argument that the appellees circumvented the rules of statutory merger in violation of public policy by amending the deed restrictions, rather than attempting a merger with the Club, we note that nothing required appellees to consummate a merger with the Club.


source: Caselaw Access Project

author: EVELYN V. KEYES, Justice.

license: Public Domain

text:
    Connie PIRTLE, Appellant, v. Zafar I. KAHN, Newport Asset Management, Inc., E.H. Apartments, A Texas Limited Partnership, Skyline Holdings, Inc., and Eagle Hollow Apartments a/k/a E.H. Apartments, Greystar Management Services, L.P. d/b/a Greystone Management Services d/b/a/ Eagle Hollow Apartments And Greystone Holdings, Inc., Appellees.
    No. 01-04-00147-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Aug. 18, 2005.
    Rehearing Overruled Sept. 19, 2005.

      Connie Pirtle, Tahoka, TX, Damon C. Richards, Lubbock, TX, for Appellant.
    Andrew C. Schirrmeister, III, George Diaz-Arrastia, Ruth Ellen Shapiro, Schirrmeister Diaz-Arrastia, LLP, Houston, TX, for Appellees.
    Panel consists of Justices NUCHIA, KEYES, and BLAND.
   OPINION

EVELYN V. KEYES, Justice.

Appellant, Connie Pirtle, brought suit against appellees, Zafar I. Khan, Newport Asset Management, Inc., E.H. Apartments, a Texas Limited Partnership, Skyline Holdings, Inc., and Eagle Hollow Apartments a/k/a E.H. Apartments, Greys-tar Management Services, L.P. d/b/a Grey-stone Management Services d/b/a Eagle Hollow Apartments and Greystone Holdings, Inc. for negligence, premises liability, fraud, and violations of the Texas Deceptive Trade Practices Act (DTPA). In one point of error, appellant contends that the trial court erred in granting appellees’ motion for summary judgment.

We affirm in part and reverse in part.

Background

On September 27,1994, appellant signed a lease agreement to rent an apartment at Eagle Hollow Apartments (Eagle Hollow) from appellees. Appellant became sick shortly after moving into Eagle Hollow. She visited a number of physicians over the years who diagnosed her with a host of aliments. These included a diagnosis of Epstein-Barr virus in December 1994 or 1995 and a diagnosis of fibromyalgia in 1996.

In July 1999, appellant noticed a leak in the ceiling of her apartment and found mold. She stated in her deposition that she had a “major revelation” when she found the mold and that “I was delighted to have found a leak because I believed that was why — that made sense to me that my health had been absolutely deteriorating since the moment I moved in there.” Appellant contacted the management at Eagle Hollow. Management sent a repairman who cleaned the air conditioning unit, sealed the mold, and painted the wall where the mold had been. On July 11, 2000, appellant wrote Eagle Hollow management and stated, “My doctors, who are giving me IVs every Tuesday and Thursday of intensive care combatants for immune deficiency disease, tell me that my home environment is my health problem.”

On July 11, 2002, appellant filed this suit, alleging negligence, premises liability, fraud, and DTPA violations. Appellees filed a traditional motion for summary judgment alleging that appellant’s causes of action were barred by the applicable statutes of limitations. See Tex.R. Civ. P. 166a(c).

The trial court granted appellees’ motion for summary judgment, without stating its reasons, and dismissed appellant’s causes of action. This appeal followed.

Standard of Review for Summary Judgment

The standard of review for a traditional motion for summary judgment requires the defendant who filed the summary judgment motion (1) to show that there is no genuine issue of material fact as to at least one element of each of the plaintiffs causes of action or (2) to establish each element of the defendant’s affirmative defense. Tex.R. Civ. P. 166a(c); Cathey v. Booth, 900 S.W.2d 339, 341 (Tex.1995). We assume all the evidence favorable to the non-movant (appellant) is true, indulge every reasonable inference in favor of the non-movant, and resolve any doubts in favor of the non-movant. Ernst & Young, L.L.P. v. Pacific Mut. Life Ins. Co., 51 S.W.3d 573, 577 (Tex.2001). When, as here, the trial court’s summary judgment order does not specify the ground or grounds on which summary judgment is rendered, we will affirm the summary judgment if any ground stated in the motion is meritorious. Id. (citing Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989)).

Discussion

In one point of error, appellant argues that the trial court erred in granting ap-pellees’ motion for summary judgment because appellees did not establish their affirmative defense of limitations with respect to any of her claims.

Applicable Limitations Periods

Appellant alleged causes of action for negligence, premises liability, fraud, and DTPA violations. Appellant’s negligence and premises liability causes of action are both actions for personal injury governed by Texas Civil Practice and Remedies Code section 16.003. See Tex. Civ. PRAC. & Rem.Code Ann. § 16.003 (Vernon 2002); Mellon Serv. Co. v. Touche Ross & Co., 17 S.W.3d 432, 435 n. 1 (Tex.App.-Houston [1st Dist.] 2000, no pet.) (applying section 16.003 to negligence cause of action); Brinker v. Looney, 135 S.W.3d 280, 284 (Tex.App.-Fort Worth 2004, no pet.) (applying section 16.003 to premises liability). Section 16.003 provides that a person must bring a suit for personal injury within two years after the cause of action accrues. Tex. Civ. PRAC. & Rem.Code Ann. § 16.003.

The statute of limitations for appellant’s DTPA claim is provided by section 17.565 of the Texas Business and Commerce Code. See Tex. Bus. & Com.Code Ann. § 17.565 (Vernon 2002). Like the negligence and premises liability claims brought by appellant, DTPA claims must be brought within two years “after the consumer discovered or in the exercise of reasonable diligence should have discovered the occurrence of the false, misleading, or deceptive act or practice.” Id.; J.M. Krupar Const., 95 S.W.3d at 329.

Appellant’s fraud cause of action is governed by section 16.004 of the Texas Civil Practice and Remedies Code. See Tex. Civ. PRAC. & Rem.Code Ann. § 16.004(a)(4) (Vernon 2002). Section 16.004(a)(4) provides that a suit for fraud must be brought within four years after the day the cause of action accrues. Id.; see Shannon v. Law-Yone, 950 S.W.2d 429, 433 (Tex.App.-Fort Worth 1997, pet. denied).

Proof of Affirmative Defense of Limitations

A defendant is entitled to summary judgment on the affirmative defense of limitations if, by presenting summary judgment evidence, he conclusively proves all the elements of the affirmative defense as a matter of law. Pustejovsky v. Rapid-American Corp., 35 S.W.3d 643, 646 (Tex.2000). This includes conclusively proving when the cause of action accrued. KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex.1999). A cause of action generally accrues when an injury results from a wrongful act, regardless of when the plaintiff learns of his injury. Childs v. Haussecker, 974 S.W.2d 31, 36 (Tex.1998). However, in those rare cases when the nature of the injury is inherently undiscoverable and evidence of the injury is objectively verifiable, the courts have crafted the discovery rule as an exception to the general accrual rule. Id. at 36-37.

The discovery rule is a limited exception to a statute of limitations and applies only if the nature of the plaintiff’s injury is both inherently undiscoverable and objectively verifiable. Computer Assocs. Int’l, Inc. v. Altai, Inc., 918 S.W.2d 453, 455 (Tex.1996). The discovery rule does not linger until a plaintiff learns of actual causes and possible cures for his injuries. PPG Indus., Inc. v. JMB/Houston Ctr. Ltd. P’ship., 146 S.W.3d 79, 93 (Tex.2004). Rather, the cause of action accrues when the plaintiff knows, or through the exercise of reasonable care and diligence should have discovered, the nature of his injury and the likelihood that it was caused by the wrongful acts of another. Childs, 974 S.W.2d at 40; see Wheeler v. Methodist Hosp., 95 S.W.3d 628, 636 (Tex.App.-Houston [1st Dist.] 2002, no pet.). Accordingly, the discovery rule requires a plaintiff to seek information about his injuries and their likely cause once he is apprised of facts that would make a reasonably diligent person seek information. Childs, 974 S.W.2d at 47; see also Stewart Title Guar. Co. v. Becker, 930 S.W.2d 748, 756 (Tex.App.-Corpus Christi 1996, writ denied) (holding that because rule mandates reasonable diligence, tolling of limitations statute by discovery rule ends when party claiming benefits of rule acquires knowledge of facts, conditions, or circumstances that would cause reasonable person to make inquiry leading to discovery of concealed cause of action); Bell v. Showa Denko K.K., 899 S.W.2d 749, 754 (Tex.App.-Amarillo 1995, writ. denied) (same).

When a plaintiff discovers or should have discovered the cause of his injury and whether a particular plaintiff exercised due diligence in so discovering are questions of fact. See Childs, 974 S.W.2d at 44; Wheeler, 95 S.W.3d at 637. However, if reasonable minds could not differ about the conclusion to be drawn from the facts, the commencement of the limitations period may be determined as a matter of law. Childs, 974 S.W.2d at 44. If the plaintiff pleads the discovery rule as an exception to limitations, the defendant moving for summary judgment on limitations has the burden of negating the exception. Pustejovsky, 35 S.W.3d at 646. The plaintiff must adduce summary judgment evidence raising a fact issue in avoidance of limitations. Id.; J.M. Krupar Constr. Co. v. Rosenberg, 95 S.W.3d 322, 330 (Tex.App.-Houston [1st Dist.] 2002, no pet.) (stating that it is plaintiffs burden to plead and prove facts supporting discovery rule). The defendant must then negate the fact issue. Childs, 974 S.W.2d at 36. The defendant may do so by (1) showing that the discovery rule does not apply or (2) proving as a matter of law that there is no genuine issue of material fact about when the plaintiff discovered, or in the exercise of reasonable diligence should have discovered, the nature of his injury. Id.; Howard v. Fiesta Tex. Show Park, Inc., 980 S.W.2d 716, 719 (Tex.App.-San Antonio 1998, pet. denied) (citing Burns v. Thomas, 786 S.W.2d 266, 267 (Tex.1990) and Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 518 n. 2 (Tex.1988)).

Application of Law to Facts

Appellant contends that her injuries were latent and inherently undiseoverable so that the discovery rule applies. She argues that the trial court erred in relying on her deposition testimony that she found the leak and the mold on July 14, 1999, and on her July 11, 2000 letter to Eagle Hollow management stating that her doctors had told her “my home environment is my health problem,” to establish the accrual date of her causes of action. She argues that in those documents she was expressing her mere suspicion and subjective beliefs that her sickness was caused by the mold in her apartment and that these, standing alone, are insufficient to establish the accrual date of her causes of action as a matter of law; rather an “objective verification of a causal connection” between her exposure to the mold and her symptoms is required. See Childs, 974 S.W.2d at 42. Appellant contends she did not discover her causes of action until sometime in 2002, when she received the results of environmental mold tests and was diagnosed with mold-related illnesses.

Appellees argue that, unlike asbestosis or AIDS, in which the nature of the disease is initially undetectable and dormant, and in which no immediate injury manifests itself to alert the potential plaintiff, appellant was sick immediately upon moving into Eagle Hollow in 1994 and was promptly diagnosed with a number of ailments. They contend that, therefore, appellant’s causes of action accrued in 1994. As summary judgment proof, appellees filed appellant’s interrogatories and depositions showing that appellant stated that she became sick immediately upon moving into Eagle Hollow in 1994. They argue that, applying the two-year statute of limitations, appellant’s negligence, DTPA, and premises liability causes of action expired in 1996.

Appellees also contend that their alleged false statements regarding the air conditioning on the property and the suitability of the property for human habitation, which appellant contends fraudulently induced her to sign the lease, were made prior to appellant’s signing the lease in 1994. They argue that appellant’s fraud claims are actually misrepresentation claims similar to her DTPA claims so that the two-year limitations period applies to them as well. However, appellees argue that even if the four-year statute of limitations for fraud applies, those claims expired in 1998, four years after the alleged misrepresentations were made, because they were predicated on representations that the apartment was suitable for habitation and sanitary and that appellant became ill immediately after moving in,

Finally, appellees contend that, even if the discovery rule applies to any or all of appellant’s claims, appellant’s causes of action accrued, at the latest, on July 14, 1999, when she found the leak and saw the mold. Appellees argue that appellant’s petition, responses to interrogations, and deposition testimony demonstrate that appellant was actually aware of the mold and concluded that the mold was the source of her poor health on that date.

We agree with appellees that appellant’s illnesses do not constitute a latent disease. However, as explained above, the discovery rule does not apply only to latent occupation-related diseases. See Childs, 974 S.W.2d at 36-37; Computer Assocs. Int’l, 918 S.W.2d at 455. Rather, discovery occurs when the plaintiff discovers, or in the exercise of reasonable diligence should have discovered (1) the nature of his injury and (2) the likelihood that it was caused by the wrongful acts of another. See Childs, 974 S.W.2d at 40; Wheeler, 95 S.W.3d at 636. Thus, for the cause of action to accrue, the plaintiff must have knowledge of facts that would cause a reasonably prudent person to make an inquiry that would lead to discovery of the concealed cause of action. See Wheeler, 95 S.W.3d at 636.

Although appellant became sick in 1994, and was diagnosed with Epstein-Barr virus in December 1994 or 1995 and with fibromyalgia in 1996, there is no evidence in the summary judgment record of appellant’s knowledge of facts in 1994, 1995, or 1996 that would have put a reasonable person on notice that her illnesses were related to exposure to a toxic substance in her living environment and that she should investigate to find the cause. Regardless of any suspicion or beliefs appellant may have had about the cause of her illnesses in 1994, however, and regardless of whether she was put on notice at some earlier time of facts not in the record that would have led a reasonably diligent person to investigate a causal connection between her illnesses and her apartment, it is clear that appellant obtained facts sufficient to require her to investigate a causal connection between the mold and her illnesses at the latest, by July 14,1999, when she found the leak in her apartment, saw the mold, and immediately drew the inference that the mold caused her illnesses. She was then, as a matter of law, on notice of “facts, conditions, or circumstances” that would cause a reasonable person to make an inquiry that would lead to discovery of any concealed causes of action. See Becker, 930 S.W.2d at 756; Bell, 899 S.W.2d at 754. Despite such notice, appellant waited more than three years to confirm the causal connection between the mold and her diseases and to bring suit.

As a matter of law, we hold that appellant was on notice as of July 14, 1999, of facts that would cause a reasonable person to make inquiries sufficient to discover her causes of action. Because appellant did not file this lawsuit until nearly three years after this date, her causes of action for negligence, premises liability, and violations of the DTPA are barred by limitations. However, despite appellees’ contention that appellant’s fraud cause of action is subject to a two-year statute of limitations, appellant pled the elements of common law fraud or fraudulent inducement. Because fraud is subject to a four-year statute of limitations, and because appellees failed to bear their summary judgment burden of establishing as a matter of law that appellant’s cause of action for fraud accrued more than four years before this suit was filed, we hold that the trial court erred in granting summary judgment on limitations on appellant’s fraud claim.

We overrule appellant’s sole issue with respect to her claims of negligence, premises liability, and DTPA violations. We sustain appellant’s issue with respect to her fraud claim.

Conclusion

We affirm the judgment of the trial court in part and reverse in part. We remand the case to the trial court for further proceedings in accordance with this opinion.

      . Tex. Bus. & Com.Code Ann. § 17.46(b)(12) (Vernon Supp.2004-2005).

      . Appellant pled that a condition on appel-lees' premises, namely the presence of toxic mold, posed an unreasonable risk of irreparable harm and was the proximate cause of her permanent disability and that appellees knew about the condition and did not exercise reasonable care to reduce or eliminate the risk. A premises defect is thus a personal injury action subject to the two-year statute of limitations in section 16.003. See Tex. Civ. Prac. & Rem.Code Ann. § 16.003; Brinker, 135 S.W.3d at 284.

      . Appellant pled that appellees made certain material and untrue oral representations to her, prior to her entering the Eagle Hollow lease, namely that (1) the property was suitable for human habitation, (2) the property was sanitary, and (3) the air conditioning on the property was suitable for the climate in Houston, Texas. She pled that appellees positively asserted the statements and either they knew the statements were false or recklessly made them without any knowledge of the truth. Appellant pled that she relied on ap-pellees’ statements prior to entering into the lease.

      . See Tex. Civ. Prac. & Rem.Code Ann. § 16.003; Tex. Bus. & Com.Code Ann. § 17.565.

      . See Tex. Civ. Prac. & Rem.Code Ann. § 16.004(a)(4).


text:
    In the Interest of D.R., A Minor Child. In the Interest of G.R. and C.R., Minor Children.
    Nos. 01-00-00582-CV, 01-00-00583-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Aug. 18, 2005.

      Shawn Casey, Shawn Casey & Associates, Leonard Sparks, III, Houston, TX, for Appellant.
    Sandra D. Hachem, Senior Assistant County Attorney, Terry Lea Elizondo, Gene E. Gundersen, Assistant County Attorney, Houston, TX, for Appellee.
    Panel consists of Chief Justice RADACK and Justices JENNINGS and HANKS.
   OPINION ON REHEARING

TERRY JENNINGS, Justice.

We deny the appellee’s motion for rehearing. Tex.R.App. P. 49.3. We withdraw our July 7, 2005 opinion, substitute this opinion in its place, and vacate our July 7, 2005 judgment.

Appellants, Vernon Rocchi and Cynthia Raddatz, challenge the trial court’s judgments, entered in two separate eases tried together, one before a jury and the other before the bench, granting sole managing conservatorship of their minor children G.R. and C.R. to the Texas Department of Protective and Regulatory Services (TDPRS) (the “G.R. and C.R. case”) and their minor child D.R. to Tiffany Carnal (the “D.R. case”). In their sole issue in the G.R. and C.R. case, which was tried before the bench, appellants contend that the trial court erred in not submitting the case to the jury. In two issues in the D.R. case, which was tried before a jury, Rocchi contends that the trial court’s submission of unnecessary evidentiary issues in the jury charge precluded the jury from appointing him as D.R.’s sole managing conservator, and the trial court made an impermissible comment on the weight of the evidence in the wording of its jury charge. We affirm the judgment entered in the G.R. and C.R. case, reverse the judgment entered in the D.R. case, and remand the D.R. case to the trial court for a new trial.

Factual and Procedural Background

TDPRS originally filed suit in the interest of G.R., C.R., and D.R., seeking, among other things, to be appointed as the sole managing conservator for all three children. The trial court subsequently severed the D.R. case from the G.R. and C.R. case. TDPRS filed an amended petition in the G.R. and C.R. case, identifying Rad-datz as the mother and Rocchi as the biological father of G.R. and C.R. TDPRS also filed an amended petition in the D.R. case, identifying Brandy Campbell as the mother and Rocchi as the biological father of D.R. In both cases, TDPRS alleged that it would be in the best interest of all three children to appoint TDPRS as the children’s sole managing conservator. Inter-venor Tiffany Carnal, a former foster mother and possessory conservator of D.R., filed a petition in intervention in the D.R. case, seeking appointment as sole managing conservator of D.R.

By two separate orders dated November 17, 1999, the trial court set the G.R. and C.R. case and the D.R. case for trial on January 24, 2000. On November 29, 1999, appellants filed a jury demand styled with the cause numbers for both the G.R. and C.R. case and the D.R. case. However, only one jury fee was paid.

The trial of both cases commenced on January 24, 2000. In a pretrial conference concerning the appropriate number of jury strikes for each party, the following discussion took place:

[Trial Court]: We’re only going to try one jury case. That’s the A case and also—
[TDPRS]: But the evidence is going to be in that case.
[Trial Court]: I will consider the other non-A case, [G.R. and C.R.], is that true? .
[TDPRS]: That’s right.
[Trial Court]: And the A case that the jury will have, the A case, is [D.R.]
[Appellants]: As I understand it, Judge, as I understand it here, I represent the two respondents and I’m given three parties.
[Trial Court]: Okay. Who are the respondents in the [D.R.] case?
[TDPRS]: The father and the mother.
[Trial Court]: What are their names?
[Appellants]: Mr. Rocchi and Brandi Campbell.
[Trial Court]: There’s two, right.
[Appellants]: That would be two in that case.
[Trial Court]: That’s the only one being tried to the jury.
[Appellants]: Well, you said you were hearing evidence on that, right, and Ms. Raddatz is part of the other case.
[Trial Court]: Right, but that’s not a jury case. I’m going to make the decision in that case.
[Appellants]: Yes, ma’am, but I would reurge the fact that I’ve got everybody trying to get us terminated.

The trial court, after deciding on the number of strikes to allocate to each side, stated, in its opening remarks to the veni-re panel: ‘We’ve brought you here this morning because we’re going to select a jury to hear the case of In the Interest of [D.R.], a Minor Child.” Appellants did not object to the trial court’s statements that only the D.R. case would be submitted to the jury. Additionally, following voir dire, appellants submitted a jury strike list for the D.R. case, but did not submit a jury strike list for the G.R. and C.R. case. The jury was selected, and the two cases were tried simultaneously, one before the jury and the other before the bench. However, the cases were never consolidated.

During the charge conference, appellants argued, for the first time, that the G.R. and C.R. case should also be submitted to the jury. While appellants agreed with the trial court that only one jury fee had been paid, appellants argued that the jury demand was made “in the name of both cases.” The trial court reviewed the file, and confirmed that only one fee had been paid. However, the trial court discovered that, despite its previous statements that the D.R. case would be tried to the jury, the jury fee had apparently been credited to the G.R. and C.R. case.

In response to appellants’ request for a jury trial of the G.R. and C.R. case, TDPRS argued that appellants had waived their right to a jury trial of the G.R. and C.R. case by not objecting to the court’s statements at the beginning of the trial. The children’s attorney ad litem also argued against submitting the G.R. and C.R. case to the jury, contending that he had conducted his voir dire questions, opening statements, and cross-examination based on his understanding that the jury was only considering the D.R. case. The trial court indicated that, in light of the fact that the fee had actually been credited to the G.R. and C.R. case, it would consider a request by appellants to submit the G.R. and C.R. case to the jury, but that it would not permit both cases to be submitted to the jury.

During the court’s extended discussion of this issue, appellants never offered to pay a second jury fee. Instead, after arguing that both cases should be tried to the jury based on the payment of the single jury fee, appellants expressly elected to have the D.R. case submitted to the jury. Appellants’ counsel stated on the record: “my clients are in the process of giving me written instruction to elect this to be a jury trial for [D.R.] if the court will permit it.” The trial court agreed to permit appellants’ election, and noted:

I think the agreement, not the agreement, but the intention all along as stated in voir dire and as stated among all of us whether [appellants’ counsel] wants to portray this as an agreement or not, clearly the fact was discussed on numerous occasions that there was one jury fee paid that the case would be tried with regard to [D.R.]. If that’s what we’re going to do and they put in it writing, I don’t have any problem with doing that because I think that’s the way it should be done.

The court then conducted a formal charge conference. Appellants made several objections to the proposed charge, which were overruled by the trial court. Following the conference, the parties made their closing arguments and the trial court submitted the D.R. case to the jury. The jury charge contained the following four questions:

QUESTION 1. Do you find from a preponderance of the evidence that a parent intentionally used abusive physical force against a child, in the Rocchi home at any time during the period of January 25, 1997 until , the present? Answer “YES” OR “NO”
Answer: _
IF YOU ANSWERED ‘YES” TO THE FOREGOING QUESTION, SUCH ANSWER AND EVIDENCE MUST BE CONSIDERED IN ANSWERING QUESTION NO. 3.
QUESTION 2. Do you find from a preponderance of the evidence that there was a history or pattern of committing family violence in the Rocchi home at any time during the period of January 25, 1997 until the present? Answer “YES” OR “NO”
Answer: _
If you answered ‘YES” to the foregoing question, go to and answer question no. 4. DO NOT ANSWER QUESTION 3. If you answer “NO” to the foregoing question, go to and answer question 3, BUT DO NOT ANSWER QUESTION 4.
Question 3. Who should be appointed Managing Conservator of the child [D.R.]? The Texas Department of Protective and Regulatory Services, or Vernon Kurtis Rocchi, or Tiffany Carnal. Answer by writing the name of one (1) of the above parties:
If you answered Question 3 do not answer question 4.
Question 4. Who should be appointed Managing Conservator of the child [D.R.]? The Texas Department of Protective and Regulatory Services, or Tiffany Carnal. Answer by writing the name of one (1) of the above parties: _

The jury answered yes to questions one and two, skipped question three, and answered question four by appointing Carnal as D.R.’s sole managing conservator. Based on the jury’s verdict, the trial court entered an order appointing Carnal as sole managing conservator of D.R. and Rocchi as the sole possessory conservator of D.R. The court decided the G.R. and C.R. case, and appointed TDPRS as the sole managing conservator of G.R. and C.R. and Roc-chi and Raddatz as the possessory conservators of G.R. and C.R.

The G.R. and C.R. Appeal

In the G.R. and C.R. case, appellants argue that the trial court abused its discretion in not submitting the case to the jury because a proper jury demand had been made in both cases, the granting of their demand would not have interfered with the handling of the court’s docket or necessitated a continuance, and no harm would have occurred to the other parties.

We review the trial court’s denial of a jury demand for an abuse of discretion. Mercedes-Benz Credit Corp. v. Rhyne, 925 S.W.2d 664, 666 (Tex.1996). In conducting an abuse of discretion review, we examine the entire record. Id. We will find an abuse of discretion only when the trial court’s decision is arbitrary, unreasonable, and without reference to guiding principles. Id.

The United States and Texas Constitutions guarantee the right to trial by jury. See U.S. Const, art. Ill, § 2; Tex. Const. art. I, § 15. However, in order to be entitled to a trial by jury, a party must file a written request for a jury trial and pay a jury fee a reasonable time before trial. Tex. Const, art. V, § 10 (stating that “no jury shall be empaneled in any civil case unless demanded by a party to the case, and a jury fee be paid by the party demanding a jury, for such sum, and with such exceptions as may be prescribed by the Legislature”); Tex.R. Civ. P. 216 (stating that a jury fee “must be deposited ... within the time for making a written request for a jury trial”). Appellants contend that they perfected their right to a jury trial of the G.R. and C.R. case because they timely filed a jury demand. TDPRS contends that appellants did not perfect their right to a jury trial of the G.R. and C.R. case because appellants paid only one jury fee, and appellants specifically elected to apply that fee to the D.R. case. TDPRS further contends that appellants waived their right to a jury trial of the G.R. and C.R. case.

The record establishes that appellants did not properly perfect their right to a jury trial in both cases. Following the discussion during the charge conference concerning whether the single jury fee should be credited to the D.R. case, the G.R. and C.R. case, or both cases, appellants specifically elected to proceed with a jury trial of the D.R. case. Appellants never tendered, or offered to tender, a second jury fee to apply to the G.R. and C.R. case. While both cases were tried together, they were never consolidated, and none of the parties ever sought consolidation. Appellants were thus not entitled to a jury trial in the G.R. and C.R. ease.

We recognize that, even when a party does not timely pay the jury fee, a trial court should accord the right to jury trial if it can be done without interfering with the court’s docket, delaying the trial, or injuring the opposing party. Gen. Motors Corp. v. Gayle, 951 S.W.2d 469, 476 (Tex.1997); Dawson v. Jarvis, 627 S.W.2d 444, 446-47 (Tex.App.-Houston [1st Dist.] 1981, writ ref'd n.r.e.). For example, in Dawson, on the morning of the trial, the trial court discovered that, though the parties had timely requested a jury, neither party had paid a jury fee. Id. at 446. The trial court refused to conduct a jury trial even though both attorneys were ready and prepared to proceed with a jury trial, the parties and witnesses had been advised that there would be a jury trial, the court personnel had prepared for a jury trial, three docket control orders had indicated that there would be a jury trial, a jury panel was available to hear the case, and one of the parties offered to pay the jury fee before commencement of the trial. Id. at 446^47. Based on these facts, this Court determined that the trial court abused its discretion in denying the parties their right to a jury trial. Id.

Here, however, appellants never offered to pay a second jury fee. Also, appellants have not demonstrated that a jury trial of the G.R. and C.R. case would not have interfered with the court’s docket, delayed the trial, or prejudiced the other parties. Id. Appellants did not object to the bench trial until the charge conference, after the jury had been selected and all the evidence had been presented. The other parties had conducted voir dire and presented evidence with the understanding that only the D.R. case would be submitted to the jury. This fact is supported by the attorney ad litem, who informed the court that he opposed submitting the G.R. and C.R. case to the jury because he had conducted his voir dire questions, opening statements, and cross-examination of witnesses with this understanding. Accordingly, we hold that the trial court did not abuse its discretion in denying appellants’ request for a jury trial of the G.R. and C.R. case.

Furthermore, we note that, even assuming that appellants were entitled to a jury trial of both cases, a perfected right to a jury trial in a civil case may be waived by a party’s failure to act when the trial court proceeds with a bench trial. See, e.g., In re A.M., 936 S.W.2d 59, 61 (Tex.App.-San Antonio 1996, no writ); Sunwest Reliance Acquisitions Group, Inc. v. Provident Nat’l Assurance Co., 875 S.W.2d 385, 387-88 (Tex.App.-Dallas 1993, no writ). In order to preserve a trial court’s error in conducting a bench trial despite a party’s perfected right to a jury trial, the party must timely object to the trial court’s action or affirmatively indicate that it intends to exercise its right to a jury trial. Id. Here, when the trial court stated, during both the pretrial conference and the voir dire, that only the D.R. case would be tried to the jury, appellants did not object to the trial court’s statements or indicate affirmatively that they possessed a “perfected” right to a jury trial in both cases. Instead, when the trial court explained that the G.R. and C.R. case would be tried to the bench, appellants responded, ‘Tes ma'am.” Furthermore, appellants filed a jury strike list only in the D.R. case, not the G.R. and C.R. case. Appellants’ objection to the bench trial of the G.R. and C.R. case, made for the first time during the charge conference, was not timely.

We overrule appellants’ sole issue in the G.R. and C.R. case.

The D.R. Appeal

In his first and second issues in the D.R. case, Rocchi contends that the trial court’s submission of unnecessary evidentiary issues in the jury charge precluded the jury from appointing him as the sole managing conservator of D.R., and that the trial court made an impermissible comment on the weight of the evidence in the wording of the questions contained in the jury charge.

A trial court has broad discretion in submitting jury questions, and we review a complaint regarding the submission of jury questions for an abuse of discretion. See Rosell v. Cent. West Motor Stages, Inc., 89 S.W.3d 643, 653 (Tex.App.-Dallas 2002, pet. denied); Varme v. Gordon, 881 S.W.2d 877, 881 (Tex.App.-Houston [14th Dist.] 1994, writ denied). This discretion is subject to the requirement that the questions submitted must fairly place the disputed issues before the jury. Id. Error in the jury charge is only reversible if it probably caused the rendition of an improper judgment or probably prevented the appellant from properly presenting the case on appeal. Tex.R.App. P. 44.1; Wal-Mart Stores, Inc. v. Johnson, 106 S.W.3d 718, 723 (Tex.2003).

Rocchi asserts that the only controlling issue in the case was who should be appointed conservator for D.R. and that whether there was a history or pattern of family violence in the Rocchi home during the two years preceding the suit was merely an evidentiary issue. Rocchi further contends that, while the Texas Family Code creates a presumption that it is not in a child’s best interest to appoint a parent with a pattern or history of family violence as the child’s sole managing conservator, this presumption is rebuttable. Rocchi argues that the jury charge improperly precluded his being named as D.R.’s sole managing conservator upon a finding by the jury of a pattern or history of family violence in the Rocchi home.

TDPRS argues that, by agreeing to the preliminary language of the charge, including certain instructions, Rocchi agreed to the application of the law that made a finding of family violence a controlling and ultimate issue. TDPRS further argues that Rocchi failed to preserve his complaints about the charge for appellate review because he did not obtain rulings on his objections and because he did not make the specific objections that are being raised on appeal.

The version of section 153.004 in effect at the time of trial stated, in pertinent part:

(a) In determining whether to appoint a party as a sole or joint managing conservator, the court shall consider evidence of the intentional use of abusive physical force by a party against the party’s spouse, a parent of the child, or any person younger than 18 years of age committed within a two-year period preceding the filing of the suit or during the pendency of the suit.
(b) The court may not appoint joint managing conservators if credible evidence is presented of a history or pattern of past or present child neglect, or physical or sexual abuse by one parent directed against the other parent, a spouse, or a child.
(d) The court may not allow a parent to have access to a child for whom it is shown by a preponderance of the evidence that there is a history or pattern of committing family violence during the two years preceding the date of the filing of the suit or during the pendency of the suit, unless the court:
(1) finds that awarding the parent access to the child would not endanger the child’s physical health or emotional welfare and would be in the best interest of the child; and
(2) renders a possession order that is designed to protect the safety and well-being of the child and any other person who has been a vie-tim of family violence committed by the parent....

Act of April 6,1995, 74th Leg., R.S., ch. 20, § 1, 1995 Tex. Gen. Laws 113, 147, amended by Act of May 17,1999, 76th Leg., R.S., ch. 787, § 3, 1999 Tex. Gen. Laws 3411, 3412, amended by Act of May 26, 1999, 76th Leg., R.S., Ch. 774, § 1, 1999 Tex. Gen. Laws 3394, 3394, amended by Act of May 17, 2001, 77th Leg., R.S., ch. 586, § 1, 2001 Tex. Gen. Laws 1119, 1119 (current version at Tex. Fam.Code Ann. § 153.004 (Vernon 2004-2005) (emphasis added)).

Nothing in section 153.004 automatically precluded Rocchi from being appointed as D.R.’s sole managing conservator upon a showing of a history or pattern of abuse or family violence. Id. Moreover, section 153.004(d) indicates that, even after a jury finding of family violence, Rocchi could still have been permitted “access” to D.R. if such access would not have endangered D.R.’s physical or emotional welfare and would have been in D.R.’s best interest. Id. Yet, question two instructed the jury that if it found, by a preponderance of the evidence, that there was a history or pattern of committing family violence in the Rocchi home at any time during the period of January 25, 1997 until the present, it was to skip question three, which included Rocchi among the possible appointees to serve as D.R.’s sole managing conservator, and instead answer question four, which only listed Carnal or TDPRS as possible appointees as D.R.’s conservator. Contrary to the plain language of the Texas Family Code, the trial court’s charge to the jury precluded the jury, once it made an affirmative finding on question two, from considering whether Rocchi should have been appointed as D.R.’s sole managing conservator. We hold that the trial court erred in submitting question two to the jury and predicating question three so that the jury could answer that question only if it answered question two in the negative.

TDPRS argues that Rocchi waived his right to complain about these questions by agreeing to certain instructions contained in the jury charge. However, the jury charge merely contained instructions that were consistent with sections 153.004(a) and (d). In accordance with section 153.004, the court instructed the jury that it was required to consider evidence of the intentional use of abusive physical force in appointing D.R.’s sole managing conservator and that a parent with a history or pattern of committing family violence was precluded from having access to D.R., unless such access would not endanger D.R. and would be in the best interest of D.R. Tex. Fam.Code Ann. 153.004(a), (d).

These agreed preliminary instructions were consistent with the law; questions two and four were not. By agreeing to include these instructions, Rocchi did not agree that the jury’s right to answer question three should be predicated upon a negative answer to question two. See Washington v. Reliable Life Ins. Co., 581 S.W.2d 153, 160 (Tex.1979) (remanding case for new trial because conditioned question was not reached by jury); Varme, 881 S.W.2d at 881 (holding trial court improperly conditioned submission of cause of action in jury charge).

Moreover, we must reject TDPRS’ argument that Rocchi failed to preserve this issue for our review. Rocchi made the following objections during the charge conference:

[Rocchi]: Judge, Question 1 and Question 2 actually are matters that are evidentiary but not decisive with regard to Question 3.
[Trial Court]: Well, I disagree with that.
[TDPRS]: Yes, ma’am. And because— even if the jury found that there was an intentional use of abusive physical force, the jury could still find that now a period of time in excess of a year later that it’s in the best interests for the child to be placed back in the Rocchi home.
[Trial Court]: No, I disagree with you Mr. Lee.
[Rocchi]: We object to having Question No. 3 being predicated upon an answer to Question 1 because Question No. 1 does not leave open for the jury a finding of rehabilitation and the best interests of the child. We object to Question No. 3 being predicated upon Question No. 2 because Question No. — the predications does not leave open for to the jury the possibility of finding that there has been a rehabilitation and that it’s now in the best interests of the child to be with the Rocchis. And we object finally once again to Question No. 4 because it constitutes a comment upon the weight of the evidence and we have objected to the — respectfully objected to the Court’s jury charge.

The trial court expressly overruled Roc-chi’s objections when it stated its “disagreement” with his objections. Additionally, because the trial court submitted the charge without making any changes after Rocchi objected, we consider his objections to have been overruled. See Acord v. Gen. Motors Corp., 669 S.W.2d 111, 114 (Tex.1984); Wal-Mart Stores, Inc. v. Redding, 56 S.W.3d 141, 150 (Tex.App.-Houston [14th Dist.] 2001, pet. denied); see also Tex.R. Crv. P. 272. Moreover, Rocchi’s objections at trial were specific and clearly identified the error and the grounds for his complaint. Tex.R. Crv. P. 274. Rocchi specifically stated in his objections that the evidentiary issues raised by question two were “not decisive” on question three and that the structure of the charge improperly precluded the jury, after finding of a pattern or history of family violence in the Rocchi home, from considering whether to appoint Rocchi as D.R’s sole managing conservator based on evidence that Rocchi had been “rehabilitated” and that it was in D.R.’s best interest. These objections are substantively identical to those being raised on appeal.

Having held that the trial court erred in submitting question two to the jury and predicating that the jury could answer question three only if answered question two in the negative, we further hold that the error constitutes reversible error, because it probably caused the rendition of an improper judgment by precluding the jury from even considering whether Roc-chi should have been appointed as D.R.’s sole managing conservator.

Accordingly, we sustain Rocchi’s first and second issues in the D.R. case.

Conclusion

We affirm the judgment of the trial court with regard to the G.R. and C.R. case, and reverse the judgment of the trial court with regard to the D.R. case. We remand the D.R. case to the trial court for a new trial.

      .The name of the agency has changed to the Texas Department of Family and Protective Services effective September 1, 2003. See Act of June 2, 2003, 78th Leg., R.S., ch. 198, §§ 1.01(b)(4)(J), 1.27, 2003 Tex. Gen. Laws 611, 641, 729.

      . Trial court cause number 1999-00453J; appellate cause number 01-00-00583-CV.

      . Trial court cause number 1999-00453JA; appellate cause number 01-00-005 82-CV.

      . Campbell is not a party to this appeal.

      . The versions of subsections (a) and (d) of section 153.004 in effect at the time of trial remain unchanged. However, subsection (b) was amended in 2001, and citation to the official sessions laws is included to reflect the amendment in 2001.

      . The amended version of section 153.004(b) makes clear that there is a rebuttable presumption that the appointment of a parent as the sole managing conservator is not in the best interest of the child if there is credible evidence of a history or pattern of past or present child neglect, or physical or sexual or abuse. Tex. Fam.Code Ann. § 153.004(b) (Vernon Supp.2004-2005). The amended version provides guidance to courts on how to consider evidence of abuse when appointing a sole managing conservator. The statute in effect at the time of trial provided virtually no guidance to courts on how to handle this type of evidence.

      . The jury charge included a list of 22 nonexclusive factors that the jury could consider in determining D.R's best interest. For example, the jury was entitled to consider the plans for the child by those seeking custody, the stability of the home, the willingness and ability of the child’s parents and family to seek out, accept and complete counseling services, and the availability of an adequate social support system consisting of an extended family and friends.

      .We note that the current Texas Pattern Jury Charges provide that a trial court should simply ask the jury to answer the question, "Who should be appointed sole managing conservator of [the minor child].” Texas Pattern Jury Charge 216.2A, Family Law, 3d ed. (2003). The Texas Pattern Jury Charges further indicate that a trial court should only address the issues referenced by the trial court in questions one and two with jury instructions. See Texas Pattern Jury Charge 215.2, Family Law, 3d ed. (2003) (instructing a jury that "In determining whether to appoint a party a sole or joint managing conservator, you shall consider evidence of the intentional use of abusive physical force by a party against the party’s spouse, a parent of the child, or any person younger than 18 years of age committed within a two-year period preceding the filing of the suit or during the pendency of the suit”);Texas Pattern Jury Charge 215.4, Family Law, 3d ed. (2003) (instructing a jury that "a parent may not be allowed access to a child if the parent has a history or pattern of committing family violence during the two years preceding the date of the filing of the suit or during the pendency of the suit unless awarding access to the child would not endanger the child’s physical health or emotional welfare and would be in the child’s best interest.”).

      .We recognize that these instructions are not necessarily appropriate simply because they correctly state the law. See Maddox v. Denka Chem. Corp., 930 S.W.2d 668, 671 (Tex.App.-Houston [1st Dist.] 1996, no pet.). However, we reject the argument that Rocchi’s agreement to include the trial court’s instructions precludes him from making the arguments that he now asserts on appeal. We also note that the trial court’s instructions, which were based on sections 153.004(a) and (d) of the Texas Family Code, are substantially similar to instructions set forth in the Texas Pattern Jury Charges. See Texas Pattern Jury Charge 215.2 and 215.4, Family Law, 3d ed. (2003).

      . Rocchi does not challenge the jury’s finding on question two.

      . Rocchi does not challenge question one on appeal. Furthermore, question one was consistent with the law in that it properly instructed the jury to merely consider a finding of intentional use of abusive physical force against a child in the appellants' home in appointing TDPRS, Rocchi, or Carnal as D.R’s sole managing conservator. Tex. Fam. Code Ann. § 153.004(a).