The opinion
Opinion issued May 1, 2014
In The
Court of Appeals
For The
First District of Texas
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NO. 01-12-00750-CV
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KENSINGTON PARK HOMEOWNERS ASSOCIATION, INC., Appellant
V.
KARL NEWMAN, Appellee
On Appeal from the 129th District Court
Harris County, Texas
Trial Court Case No. 2011-13604
MEMORANDUM OPINION
This is a restricted appeal from a no-answer default judgment. Appellant
Kensington Park Homeowners Association, Inc. argues that the trial court erred in
entering a default judgment in favor of plaintiff-appellee Karl Newman because the
return of service did not strictly comply with the Texas Rules of Civil Procedure.
Newman argues that we lack jurisdiction over this restricted appeal, as appellant is
not the party against whom the default judgment was taken.
We dismiss the appeal for lack of jurisdiction.
BACKGROUND
This appeal involves a lawsuit by a condominium owner, Newman, against a
homeowners’ association. As a condition of owning several condominium units in
Kensington Park Condominiums, Newman is obligated to pay monthly dues. In
exchange, the homeowners’ association is required, among other things, to
maintain common areas and utilities, provide insurance, pay governmental fees,
and hold regular board of directors’ meetings.
A. The Previous Dispute
A previous dispute about whether the homeowners’ association was
fulfilling these obligations led to Newman’s discontinuing payment of his dues and
to the homeowners’ association, in turn, attempting to foreclose on Newman’s
properties. Newman and another homeowner obtained an injunction against the
homeowners’ association, and the dispute was ultimately resolved through a
settlement agreement in late 2006. That settlement agreement identified the
homeowners’ association as “The New Kensington Park Homeowners Association,
a non-profit corporation, dba Kensington Park Homeowners Association, chartered
under the laws of the State of Texas on September 6, 2006.”
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B. The Underlying Lawsuit
In March 2011, Newman sued, alleging that the homeowners’ association
failed to fulfill certain terms of the settlement agreement and therefore breached
the contract. He brought claims for breach of fiduciary duty, breach of contract,
and intentional infliction of emotional distress, seeking $250,000 in actual
damages, punitive damages, attorneys’ fees, costs of court, and prejudgment and
post-judgment interest. His petition identified the defendant as “New Kensington
Park Homeowners Association Inc. d/b/a Kensington Park Homeowners
Association.”
C. The Default Judgment
No answer was filed. On August 8, 2011, Newman filed a motion for
default judgment seeking actual damages for breach of contract, plus attorneys’
fees, interest, and court costs. On May 21, 2012, following an unrecorded hearing,
the trial court signed a Final Default Judgment awarding to Newman actual
damages, attorneys’ fees, costs, and post-judgment interest against “Defendant
New Kensington Park Homeowners Association, Inc. D/B/A Kensington Park
Homeowners Association.”
On August 15, 2012, “Kensington Park Homeowners Association, Inc.” filed
a Notice of Restricted Appeal. That notice of appeal acknowledges that it is not
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the actual entity against which judgment was taken, but appellant nonetheless
requests that we review for error on the face of the record:
Although Kensington is incorrectly named in this suit and thus not the
entity against whom the Final Default Judgment was taken,
Kensington has determined that it is the intended party against whom
the suit was filed and is a party directly affected by the final Default
Judgment as Plaintiff Karl Newman is seeking to enforce the Final
Default Judgment—which he unlawfully obtained against it and has
expressed an intent to execute on property managed by Kensington
and owned by its members.
In response, Newman has filed a Motion to Dismiss and Plea to the Jurisdiction.
According to Newman, appellant’s admission that it is “not the entity against
whom the Final Judgment was taken” is a judicial admission that Appellant lacks
standing to bring a restricted appeal challenging it.
RESTRICTED APPEAL
Generally, if a defendant does not timely file an answer and a return of
service has been on file for ten days, the plaintiff may take judgment by default.
See TEX. R. CIV. P. 107(h) & 239. The defendant can prevail on a restricted appeal
challenging that default judgment only if (1) it filed notice of the restricted appeal
within six months after the judgment was signed, (2) it was a party to the
underlying lawsuit, (3) it did not participate in the hearing that resulted in the
judgment complained of and did not timely file any postjudgment motions or
requests for findings of fact and conclusions of law, and (4) error is apparent on the
face of the record. TEX. R. APP. P. 26.1(c) & 30; Ins. Co. of Pa. v. Lejeune, 297
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S.W.3d 254, 255 (Tex. 2009) (per curiam). “These requirements are jurisdictional
and will cut off a party’s right to seek relief by way of a restricted appeal if they
are not met.” Clopton v. Pak, 66 S.W.3d 513, 515 (Tex. App.—Fort Worth 2001,
pet. denied).
ISSUES ON APPEAL
In five issues, appellant complains of errors in the service of process,
mathematical errors in the damages calculation, and a variance between the
pleadings and judgment. In response, Newman contends that Kensington Park
lacks standing to bring this appeal, and that Kensington Park’s arguments on the
merits should be rejected.
IS APPELLANT A “PARTY TO THE UNDERLYING SUIT”?
A well-settled requirement of a restricted appeal is that the appellant be a
party to the underlying suit. TEX. R. APP. P. 30; e.g., Vazquez v. Vazquez, 292
S.W.3d 80, 83 (Tex. App.—Houston [14th Dist.] 2007, no pet.); Roventini v.
Ocular Scis., Inc., 111 S.W.3d 719, 720 (Tex. App.—Houston [1st Dist.] 2003, no
pet.)1 Here, appellant concedes it was “incorrectly named in this suit and thus not
the entity against whom the Final Default Judgment was taken.” It argues,
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An exception to this rule applies when the nonparty appellant can show itself “to
be ‘one whose privity of estate, title or interest appears from the record of the
cause in the court below,’ or one who is the legal representative of such party.”
Johnson v. Johnson, 841 S.W.2d 114, 115 (Tex. App.—Houston [14th Dist.] 1992,
no pet.). Appellant has not argued that this exception applies, and nothing in the
trial court record supports its application.
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however that, under general standing principles, it “has a sufficient relationship
with the lawsuit” to have a justiciable interest in its outcome, see Austin Nursing
Ctr. v. Lovato, 171 S.W.3d 845, 848 (Tex. 2005), such that we should deem it a
“party” for purposes of satisfying this restricted-appeal element. We disagree.
Default judgment was entered against “Defendant, New Kensington Park
Homeowners Association, Inc. D/B/A Kensington Park Homeowners
Association.” According to appellant Kensington Park Homeowners Association,
Inc., it is not a D/B/A or assumed name of New Kensington Park Homeowner’s
Association, Inc. Moreover, appellant acknowledges that this is not a case of
misnomer (i.e., where the correct defendant’s name is simply misspelled or
otherwise erroneous). Rather, appellant represents that “Kensington Park
Homeowners’ Association, Inc.” (appellant here), and “New Kensington Park
Homeowners’ Association” (the subject of the trial court’s judgment) are “two
entities. . . separate and apart from one another and were established at different
times.” Their common thread is that each “has at one time, provided property
management serves to the same community of condominiums.”
According to appellant, “New Kensington Park is no long in existence” and,
thus, Newman is “seeking to enforce the Final Default Judgment” against appellant
and has “expressed an intent to execute on property managed by [appellant] and
owned by its members.” But Newman never sued appellant. Thus, appellant
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Kensington Park Homeowners’ Association, Inc. was “not a party before the trial
court, and we have no jurisdiction over it now.” Ibrahim v. Young, 253 S.W.3d
790, 800 (Tex. App.—Eastland 2008, pets. denied) (dismissing defendant/appellant
“Kreit PA” from direct appeal, because only “Dr. Kreit” and “Camil Kreit M.D.,
P.A.” were actually sued in the trial court).
Because appellant “was not a party to the underlying suit . . . we conclude
we lack jurisdiction over this restricted appeal.” In re Baby Girl S., 353 S.W.3d
589, 591 (Tex. App.—Dallas 2011, no pet.).
CONCLUSION
We dismiss the appeal for want of jurisdiction.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Massengale and Huddle.
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