LMV-AL Ventures, LLC v. Lakeway Overlook, LLC et al

Filing 20

ORDER DENYING 2 Motion for TRO; DISMISSING AS MOOT 3 Motion to Expedite; DISMISSING 11 Motion to Compel. Signed by Judge Sam Sparks. (ml)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

17 Y

"

'

U

ft

1

14

I'

T

LMV-AL VENTURES, LLC d/b/a The Harbor at
Lakeway,

P)

Plaintiff,
Case No. A-17-CA-272-SS

-vs-

LAKEWAY OVERLOOK, LLC and LAKE WAY
TOWNLINE, LLC,
Defendants.

ORDER
BE IT REMEMBERED on the 31St day of March 2017, the Court held a hearing in the abovestyled cause, and the parties appeared in person or through counsel. Before the Court are Plaintiff

LMV-AL Ventures, LLC d/b/a The Harbor at Lakeway (Harbor)'s Motion for a Temporary
Restraining Order and Preliminary Injunction [#2]; Defendants Lakeway Overlook, LLC and Lakeway
Townline, LLC (collectively, Lakeway)'s Response [#7], Brief [#8], and Supplemental Brief [#16] in
opposition; Harbor's Supplemental Brief [#17] and Reply [#18] in support; Harbor's Motion for Leave
to Conduct Expedited Discovery [#3]; and finally Harbor's Motion to Compel [#1 1], Lakeway's

Response [#12] in opposition, and Harbor's Supplement [#15] in support. Having reviewed the
documents, the evidence presented at the hearing, the arguments of counsel, the relevant law, and the
file as a whole, the Court now enters the following opinion and orders.

This case concerns whether Lakeway's facility, purported to be an independent living facility,

actually constitutes an assisted living facility thereby violating a deed restriction that favors Harbor (the
Use Restriction). The parties' dispute turns on subtle distinctions in the spectrum of types of care

available for the elderly. The parties agree an independent living facility is generally not an assisted

living facility. But where, in the spectrum of care types, the classification "independent living facility"

I

ends and the classification "assisted living facility" begins is ill-defined. Fortunately, the Court need

not determine whether Lakeway' s facility is an assisted living facility today as the only issue currently
before the Court is whether to grant preliminary injunctive relief.
Based on the evidence before the Court at this time, Harbor has not established a substantial

likelihood of success on the merits. There is insufficient evidence for the Court to conclude Lakeway
is likely marketing or preparing to operate an assisted living facility in violation ofthe Use Restriction.

Therefore, because Harbor has not met its burden of proof, the Court DENIES Harbor's motion for
a preliminary injunction. Additionally, in light of the denial of preliminary injunctive relief, the Court

DISMISSES Harbor's motion for leave to conduct expedited discovery and motion to compel.

Background
I.

The Parties

A.

Harbor
Harbor is an assisted living facility licensed by the State of Texas and operating in Lakeway

Regional Medical Center Condominium (Medical Center). Formed in 2010, the Medical Center is

overseen by the Lakeway Medical Center Condominium Association (the Association) and governed
by the Declaration

Declaration).

See

of Condominium Regime for Lakeway Regional Medical Center (Condominium

Compl. [#1-1] Ex. A (Condominium Declaration).

Harbor purchased Unit 4, a condominium plat, of the Medical Center in 2012. Defs.' Suppi.
Br. [#16-41 Ex. C (Timeline) at 1. As part of its purchase ofUnit 4, Harbor bargained for and obtained

the Use Restriction, a deed restriction on the Medical Center's other plats. The Use Restriction
specifies that property other than Harbor's "may not be used, operated, or marketed as an Assisted
Living Facility (as that term is defined in the Condominium Declaration) or a Memory Care Facility.
For avoidance of doubt, the term 'Assisted Living Facility' shall include facilities furnishing services
-2-

to either a Type A or Type B assisted living facility as such terms are defined in Rule 92.3 ofthe Texas

Administrative Code, Title 40, Part I, Chapter 92." Compi. [#1-2] Ex B (Use Restriction) at

1.

With

a term of twenty years, the Use Restriction runs with the land, benefits all future owners of the Harbor,

and binds all future owners of the restricted property. Id. at 1-2.

The Condominium Declaration defines Assisted Living Facility to mean:

a facility that: (i) furnishes, in one or more buildings, food and shelter to long-term
residents of such building(s) and (ii) is licensed as an Assisted Living Facility, if
required under applicable state or federal law and regulations, and provides Personal
Care Services (as hereinafter defined) to its residents.
Condominium Declaration at 19. The Condominium Declaration subsequently defines personal care
services to mean:
(i) assistance with meals, dressing, movement, bathing or other personal needs or
maintenance to the residents; (ii) the administration of medication by a person licensed
to administer medication or the assistance with or supervision of medication to the
residents; or (iii) general supervision or oversight ofthe physical and mental well being
of the residents who need assistance to manage the person's personal life regardless of
whether a guardian has been appointed.
Id. Read together, the Condominium Declaration and Use Restriction prohibit a property within the

Medical Center, other than the property owned by Harbor, from being used, operated, or marketed as
an assisted living facility as it is defined in the Condominium Declaration.
B.

Lakeway
In January 2013, the Condominium Declaration was amended to create Unit 2, which was

designated as the Independent Living Unit (January 2013 Amendment). Defs.' Suppl. Br. [#16-15] Ex.

N (Jan. 2013 Amendment) at

1.

As Harbor is a member of the Association, Harbor's manager signed

the January 2013 Amendment. Id. at 41

The Association amended the Condominium Declaration again on September 4, 2013 to annex additional
property into the Condominium Declaration, including units designated as the Rehabilitation Unit and Skilled Nursing

Over a year later, on November 4, 2014, Lakeway purchased Unit 2. Timeline at

1.

In July

2015, Lakeway began construction of its independent living facility, Lake Travis Independent Living
(LTIL). Id. Lakeway intends to begin operating LTIL in June or July 2017. Defs.' Br. [#8] at 4.

In preparation for opening LTIL, Lakeway hired Spectrum Retirement Communities

(Spectrum) to serve as its agent and the operator of LTIL. Id. at 5. Spectrum owns and manages a
variety of independent living, assisted living, and memory care facilities throughout the country. Id.

At LTIL and through Spectrum, Lakeway plans to offer housing for individuals who are fiftyfive years or older. Id. at 4. Lakeway also intends to equip LTIL with shared amenities such as a

restaurant, organized group activities, a salon and day spa, a concierge service, and a weilness center

housing a gym and fitness classes. Id. Lakeway has not been licensed by the State of Texas as an
assisted living facility. Id.; Mot. Prelim. Inj. [#2] at 11.

Although Lakeway has not yet begun operating, it expects to have each resident sign a
Residency Agreement. Defs.' Suppi. Br. [#16] at 5. The Residency Agreement expressly informs
residents that LTILreferred to as the Community in the Residency Agreement"does not provide

staff to care for residents of the Community's independent living units." Id. [#16-111 Ex. J (Residency
Agreement) at 4. The Residency Agreement reminds residents they "may obtain health care and
personal care from outside service providers

.

.

.

." Id. Moreover, the Residency Agreement

emphasizes "[t]he Community does not supervise the activities of residents of the independent living
units.

... [and] is not licensed to provide and will not provide the Resident with assisted living services

or skilled nursing services of any kind (including but not limited to, assistance with the tasks of daily

Unit. Mot. Prelim. Inj. [#2-12] Ex. L (Sept. 2013 Amendment) at 2.

-4-

living; the services of private duty aides, physicians, and nurses; medications; and items and services

for which a license is required)." Id. at 6.

Additionally, Lakeway intends to pre-screen various healthcare and in-home care providers to
ensure they are licensed and have proper insurance. See Defs.' Br. [#8] at 5. Lakeway plans to give
residents the pre-screened providers list upon request but will not require residents to choose a
provider from that list. Id. Certain third-party services, such as physical therapy or occupational
therapy, may choose to perform their services in LTIL's weliness center, but future residents must

contract separately for any such services. Id.
In advance

of LTIL's opening, Lakeway has been marketing the facility. LTIL's webpage

previously proclaimed:
In-home care providers can come to your apartment when you need some extra
assistance. Just contract with them separately for help with personal care, medication,
health screenings and moreso you can maintain your independent lifestyle at Lake
Travis Independent Living for as long as possible.*
* These providers

are independent contractors and not legally related to or owned by
Lake Travis Independent Living or Spectrum Retirement Communities, LLC
[Lakeway 's manager/operator].
Id. at 42

II.

Texas Law

Texas's statutory framework provides important context. Texas law requires all assisted living
facilities operating in Texas to be licensed. See TEX. HEALTH & SAFETY CODE § 247.021(a). A person

establishing or operating a facility not licensed as an assisted living facility cannot use the term

"assisted living" in referring to the facility or the services provided at the facility. Id.

2

§

247.02 1(b).

Lakeway altered LTIL's website as a result of events immediately proceeding this lawsuit. Defs.' Suppi. Br.

[#16-8] Ex. G (Olson Dep.) at 56:18-57:8.

-5-

However, "[a] person establishing or operating a facility that is not required to be licensed but who
elects to obtain a license under this chapter may use the term 'assisted living' in referring to the facility

or the services provided at the facility." Id.

§

247.02 1(c).

Furthermore, Texas law defines assisted living facility to mean an establishment that:
(A) furnishes, in one or more facilities, food and shelter to four or more persons who
are unrelated to the proprietor of the establishment;
(B) provides:
(i) personal care services; or

(ii) administration of medication by a person licensed or otherwise authorized in
this state to administer the medication; and
(C) may provide assistance with or supervision of the administration of medication.
Id. § 247.002(1) (amended 201 1). Personal care services are defined as:

(A) assistance with feeding, dressing, moving, bathing, or other personal needs or
maintenance; or
(B) general supervision or oversight of the physical and mental well-being of a person
who needs assistance to maintain a private and independent residence in an assisted
living facility or who needs assistance to manage the person's personal life, regardless
of whether a guardian has been appointed for the person.
Id.

§

247.002(5).
Texas law does not require an independent living facility to have a special license. Defs.' Br.

[#8]

III.

at4.
The Dispute
In January 2017, the executive director ofLTIL, a Spectrum employee, selected Capitol Home

Health (Capitol) as the preferred home health provider for LTIL. Timeline at 2; Defs.' Suppl. Br. [#16-

The statutory definition has been amended to include other services an assisted living facility may provide,
but those additions are not relevant here. See TEx. HEALTH & SAFETY CODE § 247.002(1).

4] Ex. D (Patterson Aff.) at 3. The executive director intended to lease Capitol space onsite at LTIL.

Patterson Aff. at 4.
On February 24, 2017, Harbor sent Lakeway a letter, which demanded Lakeway cease

operating or marketing LTIL as an assisted living facility as defined in the Condominium Declaration.
Mot. Prelim. Inj. [#2-5] Ex. E (Notice Letter). On March 10,2017, Lakeway responded, denying LTIL

was operating or being marketed as an assisted living facility. Id. [#2-6] Ex. F (Response Letter).

On March 9, 2017, a private investigator employed by Harbor posed as an individual looking
for a residence for his elderly relative. Id. [#2-4] Exs. D-1 (Meeting Tr.), D-2 (Prado Decl.). While
wearing a recording device, the private investigator met with Paige Parker (Ms. Parker), a sales

representative for LTIL.

See

Defs.' Suppl. Br. [#16-7] Ex. F (Olson Aff.) at 2. An employee of

Spectrum, Ms. Parker had been trained in Colorado and worked as a sales representative for LTIL for
two days before the recorded meeting with the private investigator. See id. [#16-6] Ex. E (Parker Aff.)
at

I

(stating she began working for LTIL on March 7, 2017).
During the meeting, Ms. Parker described some of the amenities and services LTIL expected

to offer. She explained that LTIL intended to offer three meals a day for residents prepared by an onsite

chef, housekeeping, and transportation services. Meeting Tr. at 6:21-28, 13:27-32. Ms. Parker also

described how LTIL features 140 apartments with a variety of floor plans. Meeting Tr. at 12:12-13:25.
Ms. Parker stated Capitol would be renting space inside LTIL and could provide care such as bathing

assistance an elderly resident might need. Id. at 5:6-17. She indicated personnel would staff the
concierge desk twenty-four hours a day and residents would be given a pendant to call for assistance.
Id. at 6:32-7:3.

Ms. Parker also explained the difference between LTIL and an assisted living facility.

According to Ms. Parker, "with[] assist[ed] living you're paying a little bit more money but you're also
-7-

getting care givers that are there on site, uh, all hours of the day.

. . .

and you kind of pay for, the

different services that you need. Some medication reminders, bathing and stuff like that. Uh, our

community is an independent living.

.. .

so the residents that live there are pretty much independent.

We don't provide caregivers to help do these things all the time." Id. at 4:33-5:4. Ms. Parker further

described how a resident may later need to move to a place that "can give her more care or an assisted
living [facility]" when she needs more help. Id. at 8:1-8.

Sometime between February 22, 2017, and March 27, 2017, Spectrum informed LTIL's
executive director LTIL would not be leasing space to Capitol and LTIL would not designate a
preferred home health provider. Patterson Aff. at 4. LTIL's executive director subsequently informed
Capitol of the change. Id. On March 27, 2017, Lakeway notified Harbor LTIL would not feature any

third-party care providers onsite. Mot. Prelim. Inj. [#2-7] Ex. G (Mar. 27, 2017 Email).
Harbor filed this suit on March 30, 2017, alleging a violation of the Use Restriction and
seeking declaratory and injunctive relief. Compl. [#11. Harbor immediately moved for a temporary

restraining order and a preliminary injunction. Mot. Prelim. Inj. [#2]. In its request for relief, Harbor
asks this Court to enjoin Lakeway from marketing or preparing to provide assistance with personal
care services, operating a restaurant on-site, and leasing space to home health providers. Id. at 18-19.

On March 31, 2017, this Court held a hearing, entertaining argument from both parties to gain an
initial understanding of the facts of the case. Postponing ruling on Harbor's motion for preliminary

injunctive relief, the Court authorized limited discovery and requested supplemental briefing. Order

of Apr. 3, 2017 [#10]. The parties have now filed their supplemental briefs.
Analysis
I.

Legal Standard
A preliminary injunction is an extraordinary remedy only issued

if the movant establishes:

(1) a substantial likelihood of success on the merits, (2) a substantial threat of
irreparable injury if the injunction is not issued, (3) that the threatened injury if the
injunction is denied outweighs any harm that will result if the injunction is granted, and
(4) that the grant of an injunction will not disserve the public interest.
Byrum

v.

Landreth, 566 F.3d 442, 445 (5th Cir. 2009).

However, in an action to enforce a covenant restricting the use of land under Texas law, no
showing of irreparable injury is necessary. See Aufinan v. The Gov 't ofJapan, No. CIV.A. H-04-3449,
2005 WL 2030844, at *7 (S.D. Tex. Aug. 22, 2005) (first citing Voice of the Cornerstone Church v.

Pizza Prop. Partners, 160 S.W.3d 657, 668 (Tex.

App.Austin 2005, no pet.) ("A restrictive

covenant may be enforced by injunction where a distinct or substantial breach is shown, without regard
to the amount of damages caused by the breach."); and then citing Protestant Episcopal Church
Council ofthe Diocese of Tex.

v.

McKinney, 339 S.W.2d 400, 403 (Tex. Civ.

App.Eastland

1960,

writ ref d) (explaining no showing of irreparable injury is necessary to enforce a covenant restricting
the use of land)), aff'd sub nom. Aufinan v. Gov 't of Japan, 200 F. App'x 364 (5th Cir. 2006). To
enforce a restrictive covenant by injunction, the movant need only show a distinct or substantial breach

of a valid restrictive covenant. Id.
II.

Application
Deed restrictions are restrictive covenants concerning real property. See

§

TEx. PROP.CODE

202.001(4) (defining restrictive covenant). Restrictive covenants are subject to the general rules of

contract construction. Pilarcik

v.

Emmons, 966 S.W.2d 474, 478 (Tex.1998); Bank United

v.

GreenwaylmprovementAss 'n, 6 S.W.3d 705,707 (Tex. App.Houston [lstDist.J 1999, pet. denied).
As when interpreting any contract, the court's primary duty in construing a restrictive covenant is to

ascertain the drafter's intent from the instrument's language. Bank United, 6 S .W. 3d at 708. In

ascertaining the drafter's intent, the court looks to the covenant as a whole in light of the circumstances

present when the covenant was made. Pilarcik, 966 S.W.2d at 478.
Here, the Use Restriction and the Condominium Declaration together form the applicable deed
restriction. In its entirety,4 the relevant portion of the Use Restriction provides "the Restricted Property
may not be used, operated, or marketed as an Assisted Living Facility (as that term is defined in the

Condominium Declaration) or a Memory Care Facility. For avoidance of doubt, the term 'Assisted
Living Facility' shall include facilities furnishing services to either a Type A or Type B assisted living
facility as such terms are defined in Rule 92.3 of the Texas Administrative Code, Title 40, Part I,

Chapter 92." Use Restriction at

1.

And the Condominium Declaration defines Assisted Living Facility to mean a facility that
(i) furnishes, in one or more buildings, food and shelter to long-term residents of such
building(s) and (ii) is licensed as an Assisted Living Facility, if required under
applicable state or federal law and regulations, and provides Personal Care Services (as
hereinafter defined) to its residents. "Personal Care Services" means (i) assistance with
meals, dressing, movement, bathing or other personal needs or maintenance to the
residents; (ii) the administration of medication by a person licensed to administer
medication or the assistance with or supervision of medication to the residents; or (iii)
general supervision or oversight of the physical and mental well being of the residents
who need assistance to manage the person's personal life regardless of whether a
guardian has been appointed.

Condominium Declaration at 19.

Harbor moves for a preliminary injunction, claiming Lakeway is violating the terms ofthe Use
Restriction. However, Harbor does not object to Lakeway's operation of an independent living facility
in the Medical Center. Rather, Harbor claims Lakeway is violating the Use Restriction by marketing

and preparing to operate LTIL as an assisted living facility as the term is defined in the Condominium

"At no point in its briefing did Harbor fuliy quote the Use Restriction to include the language referencing the
Texas Administrative Code and Type A or Type B assisted living facilities. See Mot. Prelim. Inj. [#2]; Pl.'s Suppi. Br.
[#17].

-10-

Declaration. Harbor contends LTIL meets the definition ofa defacto assisted living because (1) it "will

offer food (three chef-prepared meals a day) and shelter (apartments) to long-term residents" and (2)
it will provide personal care services, such as assistance with meals, maintenance, and medical

services. Mot. Prelim. Inj. [#2] at 5.

Lakeway does not dispute the Use Restriction is valid and prohibits it from operating and
marketing LTIL as an assisted living facility. Instead, Lakeway claims it is not marketing or preparing
to operate LTIL as an assisted living facility. Although Lakeway does not dispute LTIL will provide

food and shelter to long-term residents, Lakeway argues LTIL is not an assisted living facility because
it is not licensed as an assisted living facility and will not provide personal care services. Moreover,

Lakeway explains LTIL residents can independently arrange and pay for any personal care services
they may need from third parties, which Lakeway claims does not violate the Use

Restriction.5

The Court finds Harbor has not established a likelihood of success on the merits for three key

reasons: (1) LTIL does not appear to meet the Condominium Declaration's definition of an assisted
living facility; (2) the current record indicates Lakeway will not provide personal care services, and
(3) the relief Harbor seeks is broader than would be granted if the Use Restriction were violated. The

Court discusses each of these reasons in turn.

Lakeway also argues interpreting the Use Restriction to require LTIL residents to be capable of living
independently without the assistance of others would violate the Fair Housing Act (FHA). Because the Court finds LTIL
likely does not meet the Condominium Declaration's definition of an assisted living facility, the evidence suggests
Lakeway is not preparing to provide or marketing itself as providing personal care services, and Harbor's requested relief
likely exceeds the scope of the Use Restriction, the Court need not examine whether a theoretical interpretation of the
Use Restriction would violate the FHA at this time.

-11-

A.

LTIL does not appear to meet the Condominium Declaration's definition of an assisted
living facility.
In light of the Texas statutory framework, the language of the Use Restriction and the

Condominium Declaration likely prohibits Lakeway's property from being used or marketed as a

licensed assisted living facility. Because LTIL is not a licensed assisted living facility and neither party
argues it should be licensed as such, LTIL does not appear to satisf,' the definition of an assisted living
facility as articulated in the Condominium Declaration.
To begin with, the Condominium Declaration's definition of assisted living facility is

conjunctive rather than disjunctive. See Condominium Declaration at 19. Thus, preliminary analysis

of the definition suggests a facility is an assisted living facility if it:
(1) furnishes food to long-term residents; and
(2) furnishes shelter to long-term residents; and
(3) is licensed as an assisted living facility, if required under applicable state or federal
law and regulations; and
(4) provides personal care services to its residents.
See id. Merely satisfiing some of these criteria is not enough; an assisted living facility as defined

under the Condominium Declaration and prohibited by the Use Restriction must satisfy all four
criteria. See id.

Harbor argues, in order to give effect to the language "if required under applicable state or
federal law and regulations," the Court should find the Use Restriction applies to both licensed and
unlicensed assisted living facilities. Mot. Prelim. Inj. [#2] at 12-14. In essence, Harbor argues the

Court should find the Use Restriction prohibits other properties in the Medical Unit from being
operated or marked as defacto assisted living facilities. This argument is unlikely to be successful.

Texas law requires all assisted living facilities to be licensed.
§

TEx. HEALTH & SAFETY CODE

247.02 1(a), Harbor claims the Condominium Declaration definition of assisted living facility is

-12-

broader than the Texas law definition. The Court disagrees. Instead, it appears the category of facilities
to which Texas grants assisted living facility licenses is broader than the Condominium Declaration

definition.
The Texas law definition and the Condominium Declaration definition ofassisted living facility
are almost identical, except the Condominium Declaration incorporates language referencing a license

"if required by law." See Defs.' Suppl. Br. [#16-2] Ex. A (Definition Comparison). Texas law permits
facilities not operating as assisted living facility to nevertheless apply for an assisted living facility
license and thereby market themselves as an assisted living facility. See

id.

§

247.021(c) ("A person

establishing or operating a facility that is not required to be licensed but who elects to obtain a license
under this chapter may use the term 'assisted living' in referring to the facility or the services provided

at the facility."). Thus, under Texas law, a facility can be licensed as an assisted living facility, even

if it is not technically an assisted living facility and is not required to have such a license. Therefore,
it seems likely the Condominium Declaration's definition of assisted living facility excludes a facility

electing to obtain an optional assisted living facility license but not providing personal care services.6
As "Lakeway is not licensed as an assisted living facility, and neither party contends that it
should be," there is no evidence to suggest Lakeway has or is preparing to violate the Use Restriction
by using, operating, or marketing an assisted living facility as defined in the Condominium

Declaration. See Mot. Prelim. Inj. [#2] at 12. On this ground alone, the Court could deny Harbor's
motion for a preliminary injunction.

6

Court does not need to explore why a facility may elect to obtain an assisted living license but not market
itself as an assisted living facility. It is enough that this possibility exists and valid justification for doing so, such as
maintaining an assisted living license for insurance purposes, might exist.

-13-

B.

The record suggests Lakeway is not preparing to provide or marketing itself as
providing personal care services.
Alternatively, even if the Condominium Declaration definition included a

de facto

assisted

living facility, there is little evidence to suggest Lakeway is preparing to provide or is marketing itself
as providing personal care services.

The Condominium Declaration defines personal services to mean:
(i) assistance with meals, dressing, movement, bathing or other personal needs or
maintenance to the residents; (ii) the administration of medication by a person licensed
to administer medication or the assistance with or supervision of medication to the
residents; or (iii) general supervision or oversight of the physical and mental well being
ofthe residents who need assistance to manage the person's personal life regardless of
whether a guardian has been appointed.

Condominium Deci. at 19.
Harbor claims Lakeway will be indirectly providing assistance with meals, bathing, and
medication management by allowing a third-party healthcare provider to lease space at LTJL and by
providing twenty-four hour assistance. Mot. Prelim. Inj. [#2] at 15. As evidence for this claim, Harbor
cites one secretly-recorded conversation with Ms. Parker, a sales representative who had only been

working on Lakeway's behalf for two days before the recorded conversation. See id. at 15-17.
By contrast, Lakeway marshals evidence to refute Harbor's claim. In particular, Lakeway

supplies the Residency Agreement it will have all residents sign, which states LTIL will not provide

staff to care for residents and will not provide skilled nursing services of any kind, such as the services

of aids or nurses or assistance with medication. Residency Agreement at

4-6.

The Residency

Agreement also emphasizes how LTIL will not supervise the activities of residents ofthe independent

Lakeway argues Ms. Parker erred in her representations to Harbor's private investigator because she was a
brand new a sales representative for LTIL, had been trained in Colorado, and was an employee of Spectrum, which
operates both assisted living and independent living facilities. See Olson Aff. at 2; Parker Aff. at 1.
-14-

living units. Id. Instead, the Residency Agreement reminds LTIL residents they can independently

contract with outside service providers to secure any healthcare or other services they may need. Id.
There is no evidence the Residency Agreement is inaccurate or misleading.

Furthermore, Lakeway states LTIL will not provide twenty-four hour assistance, will not have
nurses onsite, and will not employ a medical director. See Defs.' Suppl. Br. [#16-3] Ex. B (Lakeway
and Harbor Comparison). Additionally, Lakeway cites evidence indicating it will not be leasing space

to a third-party healthcare provider, even though it initially considered doing so. See Patterson Aff. at
4; see also

Olson Dep. at 75 :23-76:8. Finally, Lakeway also provides evidence showing it informed

Harbor no healthcare provider would be leasing space at LTIL before this lawsuit was filed.

See

Timeline at 4; Mar. 27, 2017 Email. There is no evidence to suggest Lakeway's representations are
false.
Yet, Harbor also complains Lakeway will be providing personal care services because it
advertises Lakeway "take[s] care ofeveryday chores like cooking, cleaning, laundry, and maintenance"
and offers transportation services to medical appointments and the grocery store. Mot. Prelim. Inj. [#2]

at 15. Yet, such a complaint ignores the difference between amenities and personal care services. As

defined by the Condominium Declaration, personal care services appear to relate to the personal care
of the residents themselves, such as help with feeding or bathing oneself, as opposed to amenities a

luxury living facility might provide, such as housekeeping or laundry.

See

Condominium Declaration

at 19.
In sum, there is insufficient evidence to support the allegation Lakeway is preparing to provide

or is marketing itself as providing personal care services.

-15-

C.

Harbor seeks relief broader than would be granted if the Use Restriction were violated.
Harbor requests a preliminary injunction prohibiting Lakeway from marketing or preparing to

provide assistance with personal care services, operating a restaurant on-site, and leasing space to
home health providers. Mot. Prelim. Inj. [#2] at 18-19. However, Harbor's requested relief exceeds

the scope of relief to which it is likely entitled to under the Use Restriction.

The Use Restriction explicitly prohibits properties other than Harbor's from being "used,
operated, or marketed as an Assisted Living Facility.. . ." Use Restriction at

1.

On its face, it does not

prohibit providing personal care services. If the Use Restriction did preclude properties other than

Harbor's from furnishing personal care services, then properties supplying skilled nursing or
rehabilitation services might violate the Use Restriction. See Sept. 2013 Amendment at 2. Relatedly,
no evidence in the record suggests the prohibition on operating or marketing property as an assisted

living facility includes a bar on operating a restaurant or leasing space to third-party home health
provider.
Consequently, in light of the current record, Harbor's requested relief likely exceeds the relief
to which it would be entitled under the Use Restriction.

Conclusion
For these reasons, the Court finds Harbor has not met its burden to show a substantial
likelihood of success on the merits. Thus, the Court DENIES Harbor's motion for a preliminary
injunction. In addition, as the Court already granted tailored discovery for the limited purpose of

determining if preliminary injunctive relief was merited, Harbor's motion for leave to conduct

expedited discovery and motion to compel are DISMISSED. In particular, the motion to compel need
not be considered at this time as the parties shall comply with the full scope of their discovery

obligations. Simultaneously with the entry of this order, the Court issues a scheduling order as the
delay in entering the preliminary injunction order caused the parties a delay in obtaining a trial date.

Accordingly,
IT IS ORDERED that Plaintiff LMV-AL Ventures, LLC d/b/a The Harbor at

Lakeway's Motion for a Temporary Restraining Order and Preliminary Injunction [#2] is
DENIED;
IT IS FURTHER ORDERED that Plaintiff LMV-AL Ventures, LLC dlb/a The Harbor

at Lakeway's Motion for Leave to Conduct Expedited Discovery [#3] is DISMISSED AS

MOOT; and
IT IS FINALLY ORDERED that Plaintiff LM V-AL Ventures, LLC d/b/a The Harbor
at Lakeway's Motion to Compel [#1 1] is DISMISSED.

SIGNED this the

30

lay of May 2017.

//34?4C

SAM SPARKS
UNITED STATES DISTRICT JUDGE

-17-