Aletha B. Ray v. Castilian Village Townhouse Association, Inc.

Opinion issued April 6, 2006

In The

Court of Appeals

For The

First District of Texas

NO. 01-05-00370-CV

__________

ALETHA B. RAY, Appellant

V.

CASTILIAN VILLAGE TOWNHOUSE ASSOCIATION, INC., Appellee

On Appeal from County Civil Court at Law Number 2

Harris County, Texas

Trial Court Cause No. 802,908

MEMORANDUM OPINION

Appellant, Aletha B. Ray, challenges the trial court’s rendition of summary

judgment in favor of appellee, Castilian Village Townhouse Association, Inc. (the

“Association”), in the Association’s suit against Ray for unpaid maintenance

assessments, late fees, and attorneys’ fees. In two issues, Ray contends that (1) the

trial court erred in granting the Association’s summary judgment motion because the

Association was not entitled to impose, as part of its maintenance assessments,

premiums for a common area insurance policy and because the Association was not

entitled to impose late fees for Ray’s unpaid maintenance assessments, and (2) the

trial court’s granting of the Association’s summary judgment was untimely.

We affirm.

Factual and Procedural Background

Ray owns a town home located in the Castilian Village Town Home complex.

At some point after Ray purchased her town home, the Association began to impose

and collect premiums for a common area insurance policy by including these

premiums as part of the maintenance assessments charged to the owners of the town

homes. The Association filed suit against Ray, seeking to recover maintenance

assessments and late fees that the Association alleged were past due. The Association

further alleged that, pursuant to its governing declarations and bylaws, the

Association was entitled to attorneys’ fees and court costs from Ray as well as a lien

against Ray’s town home.

On July 16, 2004, Ray filed a no-evidence summary judgment motion.

However, there is no indication in the record that Ray’s motion was ever set for

hearing or that the trial court ruled on or considered Ray’s motion. On December 4,

2004, the Association subsequently filed a summary judgment motion, contending

that (1) Ray was an owner of a town home in the complex, (2) pursuant to the

Amendments of Declaration of Covenants, Conditions & Easements (the

“Declarations”) for the Association, which applied to all town homes within the

complex, Ray was responsible for the payment of maintenance assessments, interest,

attorneys’ fees, and court costs, and (3) pursuant to the bylaws of the Association, the

board of directors of the Association was authorized to bring suit against Ray to

recover the outstanding assessments and fees. The Association attached copies of the

Declarations and bylaws to its summary judgment motion. The Declarations provide,

in relevant part:

Article VI Covenants for Maintenance Assessments

Section 1. Creation of the Lien and Personal Obligation of Assessments.

. . . [E]ach Owner of any Lot by acceptance of a Deed therefor; . . . is

deemed to covenant and agree to pay to the Association: (1) annual

assessments or charges, and (2) special assessments for capital

improvements, such assessments to be fixed, established, and collected

from time to time as hereinafter provided. The annual and special

assessments, together with such interest thereon and costs of collection

thereof, as hereinafter provided, shall be a charge on the land and shall

be a continuing lien upon the property . . . .

Section 2. Purpose of Assessments. The assessments levied by the

Association shall be used exclusively for the purpose of promoting the

recreation, health, safety and welfare of the residents in the Properties

and in particular for the improvement and maintenance of the Properties,

services, and facilities devoted to this purpose and related to the use and

enjoyment of the Common Area, and of the Townhouses situated upon

the Properties. Such uses shall include, but are not limited to, the cost

to the Association of all taxes, repairs, replacement and maintenance of

the Common Area and of maintenance of the exteriors of the Lots or

Townhouses as may from time to time be authorized by the Board of

Directors, and other facilities and activities including, but not limited to,

. . . roofs and exterior walls of the Townhouses, . . . and other charges

required by this Declaration . . . or that the Board of Directors of the

Association shall determine to be necessary or desirable to meet the

primary purpose of the Association, including the establishment and

maintenance of a reserve for repair, maintenance, taxes, and other

charges specified herein.

The bylaws provide, in relevant part:

Article XI Assessments

As more fully provided in the Declaration, each member is obligated to

pay to the Association annual and special assessments which are secured

by a continuing lien upon the property against which the assessment is

made. Any assessments which are not paid when due shall be

delinquent. If the assessment is not paid within thirty (30) days after the

due date, the assessment shall bear interest from the date of delinquency

at the rate of 8% (percent) per annum, and the Association may bring an

action at law against the Owner . . . or foreclose the lien against the

property and interest, costs, and reasonable attorney’s fees of any such

action shall be added to the amount of such assessment. No Owner may

waive or otherwise escape liability for assessments provided for herein

by none [sic] use of the Common Area [or] abandonment of his Lot.

The Association asserted that, pursuant to the Declarations and bylaws, it had

the authority to impose and collect premiums for the common area insurance policy

by including such premiums in the maintenance assessments charged to all owners

of town homes within the complex. The Association further asserted that it was

entitled to impose and collect late fees for Ray’s nonpayment of the maintenance

assessments.

Additionally, the Association stated that it had previously filed a separate

lawsuit (the “prior lawsuit”)

against Ray for nonpayment of maintenance assessments

in the 280th District Court of Harris County, the Honorable Tony Lindsay presiding.

The Association attached to its summary judgment motion a copy of the final

judgment, dated February 9, 2001, entered in the prior lawsuit in which Judge

Lindsay entered judgment against Ray for damages plus attorneys’ fees and

established a lien against Ray’s town home in favor of the Association.

The

Association also attached a copy of a letter from Judge Lindsay in the prior lawsuit,

dated January 17, 2001, in which Judge Lindsay stated that the Association “validly

assessed the cost of insurance as part of the maintenance fees, and that . . . Ray was

indebted to [the Association] for past due fees.” The Association contended that in

light of Judge Lindsay’s prior findings, Ray’s arguments concerning the Association’s

authority to impose and collect assessments for the common area insurance premiums

were “barred as a matter of law by collateral estoppel and/or res judicata.” Finally,

the Association contended that while the Declarations and bylaws did not expressly

provide for the imposition of late fees, it was entitled to impose and collect late fees

on Ray’s delinquent payment of the maintenance assessments based on the Texas

Supreme Court’s opinion in Brooks v. Northglen Ass’n , 141 S.W.3d 158 (Tex. 2004)

and section 204.010(a)(10) of the Texas Property Code . See Tex. Prop. Code Ann.

§ 204.010(a) (Vernon Supp. 2005).

The Association also attached to its summary judgment motion the affidavit of

John Hughes, president of JDH Property Management, Inc. (“JDH”), the property

manager for the Association. Hughes testified that as property manager, “JDH is

responsible for collecting maintenance fees as approved and imposed upon property

owners within the . . . complex by the Association and its Board of Directors.”

Hughes further testified that, based on his position as president of JDH, he had

personal knowledge of the following facts:

The board of directors of Castilian Village Townhouse

Association, Inc. has approved the imposition of late fees in the amount

of $25.00 per month against any owner of property within the . . .

complex who is delinquent in payment of their maintenance

assessments. Neither the restrictions applicable to the complex, or the

by-laws or articles of incorporation of the Association provide for late

fees, nor limit the Association’s remedies for late payments to interest

only. As such, late fees have been charged to [Ray’s] account, as shown

on the Account Statement.

As shown on the Account Statement, as of December 1, 2004,

[Ray] owes the Association the sum of $5,092.37 for maintenance

assessments, late fees, and attorneys fees imposed and charged against

[Ray’s] property . . . .

The account statement referred to in Hughes’s affidavit testimony, which was

attached to the Association’s summary judgment motion, reflected all charges,

payments, and balances for Ray’s account from January 1, 1999 to December 1, 2004

and further reflected that Ray’s outstanding balance totaled $5,092.37. In the

conclusion of its summary judgment motion, the Association requested , “as of the

date of filing the motion, the total amount of unpaid assessments, including

maintenance fees, late charges, and attorneys’ fees” in the amount of $5,092.37, an

additional award of attorneys’ fees, interest at a rate of 8% per annum, and a lien on

Ray’s town home. Ray did not file a response to the Association’s summary

judgment motion, and there is nothing in the record to indicate that the trial court

considered anything else in the record to constitute a response to the Association’s

summary judgment motion. There is also no transcript of any hearing on the

Association’s summary judgment motion.

On January 5, 2005, the trial court entered a “final judgment,” granting the

Association’s summary judgment motion, ordering that the Association recover from

Ray actual damages in the amount of $5,092.37, attorneys’ fees in the amount of

$1,000, court costs, and interest. The final judgment also ordered that a lien be

established against Ray’s town home.

On January 12, 2005, Ray filed a motion for new trial. On January 28, 2005,

the trial court entered proposed findings of fact and conclusions of law .

On February

28, 2005, the Association filed a motion to modify the final judgment, stating that,

during a hearing on Ray’s motion for new trial,

the trial court had instructed the

Association to review the account statement upon which the final judgment had been

based and to delete any late fees that were charged to Ray’s account prior to February

7, 2001, apparently in light of Judge Lindsay’s judgment entered in the prior lawsuit

on February 9, 2001. In accordance with the trial court’s instructions, the Association

attached a revised account statement to its motion to modify that deleted certain late

fees and reflected a revised outstanding balance of $4,843.81. On March 3, 2005,

Ray filed an “Affidavit of Accounting.” On March 18, 2005, the trial court entered

a modified final judgment, ordering that the Association recover from Ray actual

damages in the amount of $4,843.81 , attorneys’ fees in the amount of $1,000, court

costs, and interest, and further ordering that a lien be established against Ray’s town

home . On April 5, 2005, Ray filed an “objection and opposition to the Association’s

motion for entry of judgment.”

Standard of Review

A movant for summary judgment has the burden of showing that there is no

genuine issue of material fact and that it is entitled to summary judgment as a matter

of law. Tex. R. Civ. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co. , 690 S.W.2d 546, 548

(Tex. 1985). A plaintiff moving for summary judgment on its claim must establish

its right to summary judgment by conclusively proving all the elements of its cause

of action as a matter of law. Rhone-Poulenc, Inc. v. Steel , 997 S.W.2d 217, 223 (Tex.

1999). If the party opposing a summary judgment relies on an affirmative defense,

she must come forward with summary judgment evidence sufficient to raise an issue

of fact on each element of the defense to avoid summary judgment. Brownlee v.

Brownlee , 665 S.W.2d 111, 112 (Tex. 1984); Parker v. Dodge , 98 S.W.3d 297, 300

(Tex. App.—Houston [1st Dist.] 2003, no pet.). In conducting our review, we assume

that all evidence favorable to the non-movant is true and indulge every reasonable

inference and resolve all doubts in favor of the non-movant. Nixon , 690 S.W.2d at

548–49.

Assessments and Fees

In her first issue, Ray asserts that (1) the Association “illegally defined the term

common area to include single family townhouse (hazard insurance) as part of

Common Area assessment” and (2) the Association “obtained homeowner’s insurance

on private property without the knowledge, approval, and signature of co-owners all

of which constitutes fraud and forgery, without amending restrictions and without

filing such amendments with Harris County within the time requirement.”

Here, the Association attached to its summary judgment motion documentary

evidence, supported by the affidavit testimony of the property manager for the

Association, who was charged with the duty to collect maintenance fees as approved

and imposed by the Association’s board of directors, establishing that Ray owed the

Association $5,092.37 in unpaid maintenance assessments, late fees, and attorneys’

and collection fees. Apparently at the instruction of the trial court, the Association

subsequently submitted a revised account statement reflecting Ray’s outstanding

balance to be $4,843.81. The Association also presented a copy of the Declarations,

which provided for the levy of assessments for the purpose of “promoting the

recreation, health, safety and welfare of the residents in the Properties and in

particular for the improvement and maintenance of the Properties, services, and

facilities devoted to this purpose and related to the use and enjoyment of the Common

Areas, and of the Townhouses situated upon the Properties” and that such uses

included “the cost to the Association of all taxes, repairs, replacement and

maintenance of the exterior of the Lots or Townhouses as may from time to time be

authorized by the Board of Directors.”

In regard to the dispute concerning late fees, Hughes testified that the

Association’s board of directors approved the imposition of late fees in the amount

of $25.00 per month against owners who were delinquent in payment of their

maintenance assessments , and that Ray had been charged late fees accordingly. As

noted by the Association, the Texas Supreme Court has recently addressed the

authority of an association to impose late fees. See Brooks , 141 S.W.3d at 158 . In

Brooks , a group of homeowners argued that a homeowners’ association was not

entitled to unilaterally assess late fees when such fees were not provided for in the

deed restrictions. 141 S.W.3d at 168 . The court, citing section 204.010(a)(10) of the

Texas Property Code , rejected the homeowners’ argument that the imposition of such

fees would defeat the purpose of the restrictions, which only imposed an interest

penalty for nonpayment. Section 204.010(a)(10) provides, in part:

(a) Unless otherwise provided by the restrictions or the association’s

articles of incorporation or bylaws, the property owners’

association, acting through its board of directors or trustees, may:

. . . .

(10) impose interest, late charges, and, if applicable,

returned check charges for late payments of regular

assessments or special assessments.

Tex. Prop. Code Ann. § 204.010(a) (Vernon Supp. 2005). In affirming the

association’s imposition of late fees , the court noted that the deed restrictions did not

say that interest penalties were the exclusive remedies for late payments and did not

say that late charges were not permitted. Brooks , 141 S.W.3d at 169 . Similarly, here,

while the Association’s deed restrictions do not expressly authorize late fees, they do

not make interest the exclusive remedy for delinquent payment of maintenance

assessments nor do they prohibit late fees . In accord with Brooks , we conclude that

section 204.010 authorized the Association’s board of directors to impose late fees

in addition to interest charges and we hold that the Association’s summary judgment

evidence was sufficient to establish the Association’s right to summary judgment on

the Association’s claim against Ray for unpaid maintenance assessments, late fees,

and attorneys’ fees in the amount of $4,843.81.

Additionally, we note that Ray did not file a response controverting any of the

evidence attached to the Association’s summary judgment motion, nor did she dispute

the amount of her outstanding account with the Association. Rule 166a provides that

“[i]ssues not expressly presented to the trial court by written motion, answer, or other

response shall not be considered on appeal as grounds for reversal.” Tex. R. Civ. P.

166a(c). “The term ‘answer’ in the context of the rule refers to an answer to the

motion, not an answer generally filed in response to a petition.” City of Houston v.

Clear Creek Basin Auth. , 589 S.W.2d 671, 677 (Tex. 1979). “[I]ssues a non-movant

contends avoid the movant’s entitlement to summary judgment must be expressly

presented by written answer to the motion or by other written response to the motion

and are not expressly presented by mere reference to summary judgment evidence.”

McConnell v. Southside Indep. Sch. Dist. , 858 S.W.2d 337, 341 (Tex. 1993) (citing

Clear Creek Basin Auth. , 589 S.W.2d at 678 (“the non-movant must expressly present

to the trial court any reasons seeking to avoid movant’s entitlement”)). Because Ray

failed to file any response to the Association’s motion, to the extent that she is

attempting to appeal any issues other than legal sufficiency, she has waived those for

our review. See Clear Creek Basin Auth. , 589 S.W.2d at 678 (providing that if

nonmovant fails to file response to summary judgment motion, nonmovant can attack

only legal sufficiency of movant’s summary judgment evidence on appeal).

Accordingly, we hold that the trial court did not err in granting the Association

summary judgment on its claims against Ray.

We overrule Ray’s first issue.

Timeliness of Summary Judgment Motion

In her second issue, Ray contends that the Association’s motion “was filed as

a response more than 120 days after [Ray] filed her no-evidence summary judgment

motion.” First, we note that there is nothing in the record to suggest that the

Association’s summary judgment motion was filed “in response” to Ray’s no

evidence motion. Although the Association’s motion does address possible defenses

raised by Ray, it makes no direct reference to Ray’s no-evidence motion and instead

sets forth independent arguments for summary judgment. Second, Ray’s motion was

never set for hearing or submission, and there is nothing in the record to indicate that

the trial court ever ruled on Ray’s motion. The Association’s motion was timely

filed, and we hold that the trial court’s granting of the Association’s summary

judgment was not “untimely .”

We overrule Ray’s second issue.

Conclusion

We affirm the judgment of the trial court.

Terry Jennings

Justice

Panel consists of Justices Nuchia, Jennings, and Alcala.