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Click here for the full text of this decision FACTS:Richard D. Daly lives in River Oaks Place, a 123-unit condominium complex. Daly’s unit is one of six units under one roof. All units are subject to covenants, conditions and restrictions, including one that prohibits owners from installing television-receiving antennae on common elements of the structure, which includes the roof. Daly installed a satellite dish on his roof. The condominium owners’ association sued Daly for breach of contract, and declaratory and injunctive relief. Daly filed a counterclaim for breach of contract and declaratory relief; he claimed that he could install the dish on his roof, chimney, patio or mast on his patio. Without considering whether Daly could attach the dish to his chimney, patio or mast on his patio, a jury ruled he could not put it on the roof. A permanent injunction was rendered against Daly, and he was ordered to pay nearly $30,000 in attorneys’ fees. Daly appealed to the Houston 1st Court of Appeals. In a substituted opinion on rehearing, the court of appeals agreed with Daly that the trial court erred in not having the jury consider whether he could attach the dish to his chimney, patio or mast on his patio. The court rejected the rest of Daly’s arguments, including his assertion that attorneys’ fees were prohibited by the 1998 version of 47 C.F.R. 1.4000(a)(3). Daly filed for rehearing, which the court granted, and then issued another substitute opinion. This opinion was the same except on the point about attorneys’ fees, that is, the court of appeals ruled for Daly, agreeing that attorneys’ fees were prohibited. The case was remanded for further consideration of Daly’s counterclaim for declaratory relief and the determination of “any award of attorney’s fees that may be appropriate.” At the second trial, the jury was again not asked to decide whether Daly could attach the dish to his chimney, patio or mast on his patio. Instead, the jury was asked: 1. whether Daly had exclusive use or control of the air space above his patio; 2. whether the condo association’s written request for detailed specifications for a proposed satellite dish on a pole on Daly’s patio was necessary to accomplish a clearly defined safety objective; and 3. whether Daly’s claim that he was entitled to place a satellite dish on the common-element roof was frivolous. The jury answered “no” to the first question and “yes” to the second and third questions. Also as asked, the jury determined what it thought to be reasonable and necessary attorneys’ fees for the association. Daly filed a motion to disregard the jury’s findings and for judgment notwithstanding the verdict. In opposition, the association asked the trial court to take judicial notice of 47 C.F.R. 1.4000 and a May 2001 fact sheet from the Federal Communications Commission, which the trial court denied. The trial court granted Daly’s motion as to the jury’s finding that Daly’s claim was frivolous, and as to the award of attorneys’ fees to the association. On appeal to this court, the association says the trial court erred by refusing to take judicial notice of 47 C.F.R. 1.4000 and the FCC’s fact sheet, by disregarding the jury’s answers and by not awarding attorneys’ fees to the association. HOLDING:Affirmed. In addressing the trial court’s refusal to take judicial notice of, the court describes the regulation and fact-sheet at issue, noting that the regulation prohibits the award of attorneys’ fees in some challenges to the validity antenna restrictions. The court notes that although the regulation does not apply to restrictions affecting property outside the exclusive use or control of an antenna user, such as the roof of Daly’s condo, the regulation’s limit on the availability of attorneys’ fees may still be applicable. Put another way, even though the association’s restriction on roof antennas was not invalidated, the regulation’s limitation on the availability of attorneys’ fees still applies. The court therefore says it cannot conclude that the trial court’s failure to take judicial notice of the regulation probably led to the rendition of an improper judgment. “In our estimation, the judgment would also be no different if the trial court had taken judicial notice of the FCC fact sheet dated May 2001,” the court writes. Turning next to the trial court’s grant of Daly’s motion to disregard the jury’s findings, the court first addresses the ruling on frivolousness: The jury found Daly’s claim that he could put the dish on his roof was frivolous, and the trial court disregarded that finding. The court finds the association’s argument that the claim was frivolous must fail because there was no evidence of bad faith. “Even if we were to agree that Daly’s claim was groundless,” the court notes, “that conclusion would not necessarily mean that Daly acted in bad faith.” Then the court addresses the jury’s determination of reasonable attorneys’ fees for the association, and the trial court’s decision to disregard that finding. The court explains that under the fact that the first trial never addressed whether Daly could attach the dish to his chimney, patio or mast on his patio, and in light of the fact that the court of appeals’ decision in this case, the association could recover attorneys fees only if Daly’s claim was found to be frivolous. Daly argues on appeal that the trial court erred in submitting the jury question on whether he had exclusive use or control of the air space above the patio. The applicable federal regulation � 47 C.F.R. 1.4000 � prohibits restrictions on the placement of antennae in areas within the exclusive use or control of the antenna user. If Daly did not have exclusive use or control of the air space above the patio, the federal regulation would not prevent the association from prohibiting Daly’s installation of a satellite on a mast on his patio. The court therefore concludes that the trial court did not err in submitting this question to the jury. Nor did the trial court err in submitting a question to the jury on whether the association’s written request for detailed specifications for a proposed satellite dish on a pole on Daly’s patio was necessary to accomplish a clearly defined safety objective. The court explains that the answer to this question would have become relevant only had the jury answered the preceding question in Daly’s favor, which it did not. Finally, the court rejects Daly’s argument on appeal that he was entitled to attorneys’ fees. Daly was not a prevailing party under the Texas Condominium Act, the court concludes. The only portion of the counterclaim that Daly arguably prevailed on is placement of a satellite dish on his patio. Even with this claim, though, the final judgment of the trial court does not state that Daly can place a satellite dish on his patio. OPINION:Garza, J., delivered the court’s opinion.

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