# Eileen K. Starbranch v. Elizabeth Howard Crowell > Texas Court of Appeals, 1st District (Houston) · September 11, 2015 URL: https://www.frixlaw.com/law-library/cases/4068843 ## Case - **Court:** Texas Court of Appeals, 1st District (Houston) - **Decided:** September 11, 2015 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4068843 ## Opinion text ACCEPTED 01-15-00429-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 9/11/2015 12:00:31 PM CHRISTOPHER PRINE CLERK No. 01-15-00429-CV FILED IN 1st COURT OF APPEALS In The First District Court of Appeals HOUSTON, TEXAS Houston, Texas 9/11/2015 12:00:31 PM CHRISTOPHER A. PRINE Clerk Eileen K. Starbranch, Appellant, v. Elizabeth Howard Crowell, Appellee. On Appeal from the 55th Judicial District Court Harris County, Texas Cause No. 2013-14192 BRIEF OF APPELLANT Nelson S. Ebaugh NELSON S. EBAUGH, P.C. 2777 Allen Parkway, Ste. 1000 Houston, Texas 77019 Tel. (713) 752-0700 Fax (713) 739-0500 nebaugh@ebaughlaw.com Texas Bar Card No. 24007139 ATTORNEY FOR APPELLANT Oral Argument Requested IDENTITY OF PARTIES AND COUNSEL Appellant: Eileen K. Starbranch Trial and Appellate Counsel Nelson S. Ebaugh for Appellant: NELSON S. EBAUGH, P.C. 2777 Allen Parkway, Ste. 1000 Houston, Texas 77019 Appellee: Elizabeth Howard Crowell Trial and Appellate Counsel John B. Shely for Appellee: Courtney B. Glaser ANDREWS KURTH, LLP 600 Travis, Suite 4200 Houston, TX 77002 i TABLE OF CONTENTS Page Identity of Parties and Counsel ............................................................................. i Index of Authorities ..............................................................................................v Statement of the Case.......................................................................................... xi Issue Presented ................................................................................................... xii Statement of the Facts ...........................................................................................1 A. Overview ..................................................................................................1 B. The parties and their relationships ...........................................................1 C. Neighbors ask Starbranch to execute signature pages for the Association ...............................................................................................3 D. Crowell files suit ......................................................................................4 E. Termination of the Association in 2013...................................................5 F. The trial court grants Crowell’s Motion for Summary Judgment on Attorney’s Fees against Starbranch ....................................................7 G. The trial court grants Starbranch’s motion to dismiss Crowell’s action for declaratory judgment as moot .............................................. 12 H. Order and Final Judgment leads to this appeal ..................................... 12 Summary of Argument ...................................................................................... 14 Argument............................................................................................................ 16 A. The Declaratory Judgments Act cannot be used as a vehicle to obtain otherwise impermissible attorneys’ fees .................................... 17 ii B. The trial court improperly usurped the jury’s fact-finding role during a summary-judgment proceeding .............................................. 21 C. The attorneys’ fees are neither equitable nor just ................................. 25 1. The trial court awarded attorneys’ fees before it even declared the representative rights and interests of Crowell and Starbranch ........................................................................................ 26 2. It is inequitable and unjust to award attorneys’ fees against a person who was not even a proper party to the declaratory judgment action ................................................................................ 29 3. There is no evidence that Starbranch prolonged the case or prevented a complete and final resolution to this case .................... 33 D. The summary judgment evidence raised genuine issues of material fact ........................................................................................... 36 1. The affidavit of Nelson S. Ebaugh raised genuine issues of material fact...................................................................................... 37 2. The affidavit of Eileen K. Starbranch raised genuine issues of material fact...................................................................................... 39 3. Genuine issues of material fact necessarily existed because the trial court sustained Starbranch’s objections to Crowell’s failure to segregate ........................................................................... 40 4. Crowell’s own evidence established the existence of genuine issues of material fact....................................................................... 42 E. The trial court abused its discretion by considering evidence filed after the submission date and which Starbranch did not have the opportunity to controvert ...................................................................... 43 F. The trial court granted more relief than was requested in Crowell’s Motion for Summary Judgment on Attorneys’ Fees............ 46 Conclusion and Prayer ....................................................................................... 49 iii Certificate of Compliance .................................................................................. 51 Certificate of Service ......................................................................................... 51 Appendix ............................................................................................................ 52 iv INDEX OF AUTHORITIES Page Cases Adiuku v. Ikemenefuna ex rel. Ada Mbaise Ass’n of Houston, No. 14–13–00722–CV, 2015 WL 778487, *12 (Tex. App.—Houston [14th Dist.] Feb. 24, 2015, no pet.) .......................... 24 Almaguer v. Jenkins, 882 S.W.2d 903, 904 (Tex. App.—Corpus Christi 1994, no writ).................................................. 22 AMX Enters., L.L.P. v. Master Realty Corp., 283 S.W.3d 506 (Tex. App.—Fort Worth 2009, no pet.) ........................................................ 41 Arkoma Basin Exploration Co. v. FMF Assocs. 1990-A Ltd., 249 S.W.3d 380 (Tex. 2008) ........................................................................ 34 Armbruster v. Memorial Southwest Hosp., 857 S.W.2d 938 (Tex. App.—Houston [1st Dist.] 1993, no writ) .......................................... 42 Beavers v. Goose Creek Consol. I.S.D., 884 S.W.2d 932, 935 (Tex. App.—Waco, 1994, writ denied) ........................................................ 43 Bocquet v. Herring, 972 S.W.2d 19 (Tex. 1998)............................................. 22, 23, 25, 26, 35, 37 Bonham State Bank v. Beadle, 907 S.W.2d 465 (Tex. 1995) ........................................................................ 32 Ca Partners v. Spears, 274 S.W.3d 51, 81 (Tex. App.—Houston [14th Dist.] 2008, pet. denied) .................................. 40 Caldwell v. Carrollton Air Conditioning, Inc., No. 07-05-0241-CV, 2007 WL 2390425 *6 (Tex. App.—Amarillo Aug. 22, 2007, pet. denied) (mem. op.) ................... 43 v Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682 (Tex. 2002)..................................................................... 43, 48 City of Carrollton v. RIHR Inc., 308 S.W.3d 444 (Tex. App.—Dallas 2010, pet. denied) ......................................................... 27 Crown Asset Management, LLC v. Short, No. 01-08-00042-CV, 2009 WL 1025729 (Tex. App.—Houston [1st Dist.] Apr. 16, 2009, no pet.) (mem. op.) ................................................................................................. 28, 35 Engel v. Pettit, 713 S.W.2d 770, 771-73 (Tex. App.—Houston [14th Dist.] 1986, no writ) ........................................ 38 Extended Servs. Program, Inc. v. First Extended Serv. Corp., 601 S.W.2d 469 (Tex. Civ. App.—Dallas 1980, writ ref’d n.r.e.) .......................................... 46 Fuqua v. Oncor Elec. Delivery Co., 315 S.W.3d 552, 559-60 (Tex. App.—Eastland 2010, pet. denied) ................................................ 21, 22 Garland v. Dallas Morning News, 22 S.W.3d 351, 367 (Tex.2000) ................................................................... 22 General Elec. Supply Co. v. Gulf Electroquip, Inc., 857 S.W.2d 591 (Tex. App.—Houston [1st Dist.] 1993, writ denied) .............................. 23, 36 Goldman v. Olmstead, 414 S.W.3d 346 (Tex. App.—Dallas 2013, pet. denied) ......................................................... 40 Guity v. C.C.I. Enter., Co., 54 S.W.3d 526 (Tex. App.—Houston [1st Dist.] 2001, no pet.) ........................................... 36 vi Hahn v. Love, 321 S.W.3d 517 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) .................................... 19 Highland Capital Mgmt., L.P. v. Ryder Scott Co., 402 S.W.3d 719 (Tex. App.—Houston [14th Dist.] 2012, no pet.)......................................... 47 Hourani v. Katzen, 305 S.W.3d 239 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) .................................... 49 Jay Petroleum, L.L.C. v. EOG Res., Inc., 332 S.W.3d 534 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) .................................... 36 Kennesaw Life & Accident Ins. Co. v. Goss, 694 S.W.2d 115 (Tex. App.—Houston [14th Dist.] 1985, writ ref’d n.r.e.) ..................... 27, 32 LaGoye v. Victoria Wood Condo Ass’n, 112 S.W.3d 777 (Tex. App.—Houston [14th Dist.] 2003, no pet.)......................................... 49 MBM Fin. Corp. v. Woodlands Operating Co., 292 S.W.3d 660 (Tex. 2009) ........................................................................ 17 McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 377 (Tex. 1993) .................................................................. 46, 47 McGlown v. Ashford Park Homeowners Asso’, Inc., No. 01-08-00619-CV, 2009 WL 1635310 (Tex. App.—Houston [1st Dist.] Jun. 11, 2009, no pet.) (mem. op.) ............................................................................................... 24, 25 Mortg. Elec. Registration Sys., Inc. v. Groves, No. 14-10-00090-CV, 2011 WL 1364070 (Tex. App.—Houston [14th Dist.] Apr. 12, 2011, pet. denied) (mem. op.) ..................................................................................................... 19 vii Parker v. Hunegnaw, 364 S.W.3d 398 (Tex. App.—Houston [14th Dist.] 2012, no pet.)......................................... 18 Pentico v. Mad-Wayler, Inc., 964 S.W.2d 708 (Tex. App.—Corpus Christi 1998, pet. denied) ........................................... 23 Positive Feed, Inc. v. Guthmann, 4 S.W.3d 879 (Tex. App.—Houston [1st Dist.] 1999, no pet.) ........................................... 49 Reiner v. Ehrlich, 66 A.3d 1132 (Md. Ct. Spec. App. 2013) ............................................... 30, 31 Sams v. N.L. Indus., Inc., 735 S.W.2d 486 (Tex. App.—Houston [1st Dist.] 1987, no writ) .......................................... 45 Sanders v. Capitol Area Council, 930 S.W.2d 905 (Tex. App.—Austin 1996, no writ) .............................................................. 45 SW. Guar. Trust Co. v. Hardy Road 13.4 Joint Venture, 981 S.W.2d 951 (Tex. App.—Houston [1st Dist.] 1998, pet. denied) .................. 18, 19, 20, 21 State v. Heal, 917 S.W.2d 6 (Tex. 1996)....................................................................... 16, 25 State & County Mut. Fire Ins. Co. ex rel. S. United Gen. Agency of Tex. v. Walker, 228 S.W.3d 404 (Tex. App.—Fort Worth 2007, no pet.) .................................................. 26, 29 Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1 (Tex. 1991)............................................................................. 37 viii Tanglewood Homes Ass’n, Inc. v. Feldman, 436 S.W.3d 48 (Tex. App.—Houston [14th Dist.] 2014, pet. denied) .................................. 28 Texan Dev. Co. v. Hodges, 237 S.W.2d 436 (Tex. Civ. App.—Amarillo 1951, no writ) ................................................... 19 Tex. Div.-Tranter v. Carrozza, 876 S.W.2d 312 (Tex. 1994) ........................................................................ 34 Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299 (Tex. 2006) .................................................................. 40, 41 U.S. Nat’l Bank Ass’n v. Johnson, No. 01-10-00837-CV, 2011 WL 6938507 (Tex. App.—Houston [1st Dist.] De. 30, 2011, no pet.) (mem. op.) ........... 18 Universal Printing Co. v. Premier Victorian Homes, Inc., 73 S.W.3d 283 (Tex. App.—Houston [1st Dist.] 2001, pet. denied) .................................... 21 Valence Operating Co. v. Dorsett, 164 S.W.3d 656 (Tex. 2005) ........................................................................ 16 VICC Homeowners’ Ass’n v. Los Campeones, Inc., 143 S.W.3d 832 (Tex. App.—Corpus Christi 2004, no pet.) .................................................. 27 Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) (orig. proceeding) .......................................... 25 Wheeler v. Green, 157 S.W.3d 439, 442 (Tex.2005) ................................................................. 43 White Motor Co. v. Loden, 373 S.W.2d 863, 865 (Tex. Civ. App.—Dallas 1963, no writ) ....................................................... 22 ix Wise v. Conklin, No. 01-13-00840-CV, 2015 WL 1778612 (Tex. App.—Houston [1st Dist.] Apr. 16, 2015, no pet. h.) (mem. op.) ...... 20 Yancy v. United Surgical Partners Intl., Inc., 236 S.W.3d 778 (Tex. 2007) ........................................................................ 16 Statues Md. Code Ann., Cts. & Jud. Proc. § 5-422 ........................................................ 30 Tex. Bus. Orgs. Code § 22.152 .................................................................... 30, 31 Tex. Bus. Orgs. Code § 22.221 .......................................................................... 30 Tex. Bus. Orgs. Code § 22.235 .......................................................................... 30 Tex. Civ. Prac. & Rem. Code § 37.009 ................................................. 21, 25, 28 Tex. Prop. Code § 204.006 ........................................................................ 2, 3, 32 Rules Tex. R. Civ. P. 5 ........................................................................................... 43, 48 Tex. R. Civ. P. 21(b) .......................................................................................... 45 Tex. R. Civ. P. 166a ........................................................................................... 46 Tex. R. Civ. P. 166a(c) .......................................................................... 36, 47, 49 Other Authorities 2 TEX. PRAC. GUIDE CIVIL TRIAL § 14:25 (Thomson Reuters 2014) ................ 22 65 AM. JUR. 2d Quieting Title § 63 (Database updated May 2015) ............ 30, 31 74 C.J.S. Quieting Title § 3 (April 2015)........................................................... 19 BLACK’S LAW DICTIONARY 308 (9th ed. 2009) ................................................. 34 x STATEMENT OF THE CASE Nature of the Case: Elizabeth Howard Crowell sued twenty-seven defendants, including Eileen K. Starbranch, in connection with a property owners’ association that was allegedly invalidly formed. CR6-25. Trial Court: The Honorable Jeff Shadwick, 55th District Court, Harris County, Texas, cause number 2013-14192. Trial Court Proceedings: In 2013, Crowell settled with all of the defendants, except for Starbranch. CR866-908 (App. 4). In 2015, Crowell filed her Motion for Summary Judgment on Attorneys’ Fees against Starbranch. CR366-674. Subsequently, Starbranch filed a motion to dismiss Crowell’s action for declaratory judgment arguing the claim was moot. 1st Supp. CR7-122. Trial Court’s Disposition: The trial court did not find Starbranch liable to Crowell or declare the respective rights and interests of Crowell and Starbranch. However, the trial court did grant Crowell’s Motion for Summary Judgment on Attorneys’ Fees, in part, awarding attorneys’ fees in the amount of $26,462.00 against Starbranch. CR917. The order became final and appealable on April 28, 2015, when the trial court entered a final judgment denying Starbranch’s motion for reconsideration and motion to dismiss. CR1059-60. xi ISSUE PRESENTED Did the trial court err by granting Crowell’s Motion for Summary Judgment on Attorneys’ Fees? A. Did the trial court err by awarding attorneys’ fees when Crowell’s claim for declaratory relief merely duplicated the issues set forth in her action to quiet title? B. Did the trial court err by deciding a fact question on reasonable and necessary attorneys’ fees that was reserved for the jury? C. Did the trial court abuse its discretion by awarding fees that were neither equitable nor just? D. Did the trial court err by granting any relief to Crowell because there were fact issues as to the amount of reasonable and necessary attorneys’ fees? E. Did the trial court abuse its discretion by considering evidence filed after the submission date and which Starbranch did not have the opportunity to controvert? F. Did the trial court err by granting more relief than was requested in Crowell’s motion? xii STATEMENT OF THE FACTS A. Overview This appeal arises from Appellee Elizabeth Howard Crowell’s suit to quite title and declaratory judgment action seeking the same relief. CR19-21. Crowell sued a property owners’ association, its officers and directors, and all of the association members, claiming the association was not properly formed. CR6-25. Among the defendants was Appellant Eileen K. Starbranch, who was not an officer or director but instead a mere member of the association. CR6-25. Starbranch has never been found liable for anything, and the trial court made no declarations concerning the respective rights and interests of Crowell and Starbranch. CR1040 (App. 2); CR1059-60 (App. 1). Crowell’s suit to quiet title, and her duplicative declaratory judgment action, were dismissed without any finding of liability or declaration against Starbranch. CR1040 (App. 2); CR1059- 60 (App. 1). Yet the trial court, on summary judgment, ordered Starbranch to pay Crowell $26,462.00 in attorneys’ fees. CR917 (App. 3). That order underlies Starbranch’s appeal, and the facts germane to this appeal are as follows: B. The parties and their relationships In March 2009, Crowell acquired over 25,000 square feet of property in the Jandor Gardens subdivision with the following address: 5326 Institute Lane, 1 Houston, Texas 77005 (hereinafter, the “Property”). CR75; 92. Crowell and all of the defendants, including Starbranch, are homeowners in the Jandor Gardens subdivision. CR7-9. In 2012, several of the homeowners in Jandor Gardens formed a property owners’ association for Jandor Gardens. CR99-124. The name of the property owners’ association was the “Jandor Gardens Association, Inc.,” a Texas nonprofit corporation (hereinafter, the “Association”). CR100. To form a property owners’ association, a petition committee must be formed first. Tex. Prop. Code § 204.006(a). Defendants Anna Stock, Fred Sharifi, and Wyman H. Herendeen served on the petition committee for the Association. CR154-157. Defendant Ron Whitte incorporated the Association. CR217-21. Defendants Rick Rambo, Ron Witte, and Wyman H. Herendeen served as the initial directors for the Association. CR101; 191; 218-219. Starbranch did not serve as either an officer or a director for the Association. CR217-21. In addition, Starbranch did not serve on the petition committee for the Association. CR154-157. Instead, Starbranch was simply a member of the Association. CR755-58; 181; 211; 260; 302. Starbranch has never asserted any interest in Crowell’s Property. CR758. In fact, Starbranch has disclaimed any and all interest in Crowell’s Property. CR758. 2 C. Neighbors ask Starbranch to execute signature pages for the Association. It was not Starbranch’s idea to form the Association. CR755-58. On or about November 8, 2012, Starbranch was in her vehicle exiting her garage onto Dora Street, one of the streets in Jandor Gardens. CR756. While doing so, about four or five people claiming to be homeowners in Jandor Gardens stopped her and stated that they were forming the Association. CR756. They asked Starbranch to execute one of more signature pages in connection with the Association. CR756. Starbranch executed the signature pages presented to her. CR181; 211; 260; 302. On or about November 18, 2012, Starbranch noticed that one or more signature pages in connection with the Association were left on her front doorstep. CR756. Starbranch picked up the document, signed where necessary, and then left the document on her front doorstep. CR756. Starbranch did not sign two of the instruments that Crowell sought to declare as void in the trial court. Starbranch did not sign the “Notice of Formation of Petition Committee”1 or the “Petition Pursuant to Property Code § 204.006 To Create The Jandor Gardens Association, Inc.,” 2 which were the subjects of the first and fourth declarations sought by Crowell in her later suit to quiet title and duplicative declaratory judgment action. CR20. 1 CR154-57. 2 CR100-04. 3 Starbranch never proposed or circulated the instruments that created the Association. CR756. In addition, Starbranch did not file any instruments in the Harris County real property records in connection with the Association. CR756. In short, Starbranch did nothing more than give her okay to the Association idea proposed by others. CR755-58. D. Crowell files suit. In her Original Petition, Crowell asserted an action to quiet title against all of the defendants, including Starbranch, wherein she alleged as follows: the documents filed by Defendants [including Starbranch] in the real property records (see Harris County Clerk File Nos. 20120521806, 20120521807, 20120521808, 201205436661, and 2012054016216) are clouds or encumbrances on Ms. Crowell’s right of ownership of the Property, which affect impair Ms. Crowell's title to the Property. Ms. Crowell seeks to nullify the effect of these disputed filings and encumbrances. Ms. Crowell is entitled to a judgment that sets aside these improper filings and removes them as clouds on her title. CR21. Crowell sought the same the relief in her claim for declaratory relief against all of the defendants, including Starbranch. CR19-20. On April 7, 2013, a jury trial was requested and the jury fee was paid. CR56-58; 1093. The following defendants did nothing more that than approve instruments prepared by the Association: Eileen K. Starbranch, George L. Parker, Eva K. Parker, Garret S. Madderra, Georgia W. Hitchcock, James Carper, and Eric 4 Mazziotta. CR106-114; 167-185; 197-215; 246-264; 275-283; 293-302. Crowell later dismissed each of these defendants, except for Starbranch, from the lawsuit. CR26-46; 59-61; 65-68; 72-74. The Association was never Starbranch’s idea, and she did not oppose the relief that Crowell sought in her action to quiet title and in her declaratory judgment action (although Starbranch did contest her liability). CR724-810. In fact, upon learning that Crowell wanted Starbranch to execute a Rescission of Real Property Filings in connection with the Association, Starbranch voluntarily executed the same and filed it in the real property records. CR755-767. E. Termination of the Association in 2013. On June 24, 2013, Crowell filed her Motion for Summary Judgment as to Liability against several of the defendants in this lawsuit. CR75-344. In her summary judgment motion, Crowell sought partial summary judgment on her action for declaratory judgment and her action to quiet title. CR75-344; 368. On August 19, 2013, this Court granted Crowell’s Motion for Summary Judgment as to Liability against several of the defendants in the lawsuit. CR345- 346. However, because Starbranch had not made an appearance in this lawsuit when the Motion for Summary Judgment as to Liability was filed and granted, the order granting partial summary judgment was not entered against Starbranch. 5 CR722-23. Starbranch has never been found liable for anything. CR1059-60 (App. 1). On October 15, 2013, Crowell entered into a settlement agreement with the Association, Sarah Whiting, Ron Witte, Lawrence E. Plotsky, Rick Rambo, Frances Rambo, David D. Stock, Anna L. Stock, Wyman H. Herendeen, Mary Herendeen, Fereidoon Sharifi, Soody Sharifi, Edward G. Rizk, Billie Rizk, Benjamin Levit, Erica Levit, Walter J. Taylor, and Anita J. Taylor (the “Settling Defendants”) wherein the Settling Defendants agreed to “terminate the [Association] by filing a Certificate of Termination of a Domestic Nonprofit Corporation or Cooperative Association with the Secretary of State.” CR866-908 (App. 4). On November 20, 2013, the Settling Defendants filed the Certificate of Termination as to Jandor Gardens Association, Inc. with the Texas Secretary of State. 1st Supp. CR120-22 (App. 5). In the settlement agreement, Crowell and the Settling Defendants also agreed as follows: 4. Filing of Order. The Parties acknowledge and agree that Crowell will file a certified copy of the Order signed October 8, 2013, which is attached as Exhibit C, in the real property records. The Parties acknowledge and agree that they have waived any right to appeal the Order. 5. Applicable Deed Restrictions. All Parties hereto acknowledge that the 1929 deed restrictions of Jandor Gardens, recorded in Volume 811, Pages 285-286 of the Deed 6 Records of Harris County, Texas, remain in effect, and all Parties hereto agree to comply with the deed restrictions. CR868 (App. 4). On December 5, 2013, Crowell filed the trial court’s order, dated October 8, 2013, in the real property records for Harris County. CR790-94. Filing the trial court’s October 8, 2013, order in the real property records removed the cloud of title on the Property that had been created by the Association. CR368.3 F. The trial court grants Crowell’s Motion for Summary Judgment on Attorneys’ Fees against Starbranch. On February 25, 2015, Crowell filed her Motion for Summary Judgment on Attorney’s Fees against Starbranch seeking $71,345.80 in attorneys’ fees, incurred by Crowell between February 28, 2013, and October 1, 2014. CR366-674. In that motion, Crowell claimed that she had obtained an August 19, 2013, summary judgment order on her action to quiet title and her claim for declaratory relief against Starbranch. CR368.4 Starbranch filed a motion for reconsideration of the summary judgment order, 5 arguing that the order could not have been against Starbranch because “[w]hen Crowell filed and served her Motion for Summary 3 In her Motion for Summary Judgment on Attorneys’ Fees, Crowell admitted the following: in 2013, the trial court “granted Ms. Crowell’s Motion for Summary Judgment on Liability, thereby nullifying the actions of defendants’ bogus POA . . . .” CR368. 4 In her Motion for Summary Judgment on Attorneys’ Fees, Crowell made the following claim: “On August 19, 2013, [the trial court] granted Ms. Crowell’s Motion for Summary Judgment on Liability, thereby nullifying the actions of defendants’ bogus POA, and establishing the liability of the defendants in this case with respect to certain causes of action including Ms. Crowell’s action for declaratory judgment.” CR368. 5 CR675-708. 7 Judgment on Liability, this Court did not even have jurisdiction over Starbranch.” CR677. On March 10, 2015, the trial court entered an order ruling as follows: ORDERED that the August 19, 2013 Order Granting Motion for Summary Judgment did not apply to Starbranch since Starbranch was not a party at that time. The Motion for Reconsideration is MOOT. ORDERED that the Court will consider Plaintiff’s Motion for Summary Judgment as to Liability (filed 6-24-13) and its application to Starbranch by submission on March 30, 2015, along with Plaintiff’s Motion for Summary Judgment on Attorneys’ Fees. CR722-23. Crowell’s Motion for Summary Judgment as to Liability, filed on June 14, 2013, sought the following five declarations concerning the respective rights and interests of Crowell and Starbranch: 1) the “Notice of Formation of Petition Committee” filed November 8, 2012 (Harris Co, Clerk File No. 20120521806) has no force and effect, is nullified, and is no longer a cloud on the title to, and right of ownership of, the Property; 2) the “Petition Approval” filed November 8, 2012 (Harris County Clerk File No. 20120521807) has no force and effect, is nullified, and is no longer a cloud on the title to, and right of ownership of, the Property; 3) the “Petition and First Amendment to Declaration for Jandor Gardens” filed November 8, 2012 (Harris County Clerk File No. 20120521808) has no force and effect, is nullified, and is no longer a cloud on the title to, and right of ownership of, the Property; 8 4) the “Petition Pursuant to Property Code § 204.006 To Create The Jandor Gardens Association, Inc.” filed November 19, 2012 (Harris County Clerk File No. 201205436661) has no force and effect, is nullified, and is no longer a cloud on the title to, and right of ownership of, the Property; and 5) the “First Amendment to Declaration for Jandor Gardens” filed November 20, 2012 (Harris County Clerk File No. 20120540162) has no force and effect, is nullified, and is no longer a cloud on the title to, and right or ownership of, the Property. CR88-89. In other words, Crowell sought declarations to nullify the same five documents that she sought to nullify in her action to quiet title against Starbranch. Compare CR21 with CR88-89. On March 23, 2015, Starbranch filed her Response to Crowell’s Motion for Summary Judgment as to Liability and Crowell’s Motion for Summary Judgment on Attorneys’ Fees. CR724-810. Starbranch filed the Affidavit of Nelson S. Ebaugh and the Affidavit of Eileen K. Starbranch, M.D. in response to the attorneys’ fee affidavit submitted by Crowell. CR755-83. Mr. Ebaugh testified that “it is unreasonable to assess $71,354.80 against Starbranch when Crowell’s attorneys have spent so little time prosecuting Crowell’s declaratory judgment action against Starbranch.” CR771. In addition, Starbranch objected to Crowell’s failure to segregate nonrecoverable fees from recoverable fees and Crowell’s failure to segregate the fees owed by different parties. CR747-50. 9 On April 1, 2015, two days after the submission date for Crowell’s summary judgment motions, Crowell filed a “Motion to Consider the Supplement to the Affidavit of John B. Shely Filed in Connection with the Pending Motions on Summary Judgment as to Attorneys’ Fees” (hereinafter, the “Motion to Consider the Supplemental Affidavit”) that raised new and independent summary-judgment grounds. CR834-63; 1st Supp. CR3-6. The Supplement to the Affidavit of John B. Shely identified $19,345.506 in attorneys’ fees that Crowell had not requested in her Motion for Summary Judgment on Attorneys’ Fees. Compare CR366-480 with CR836-63 and 1st Supp. CR3-6. Shely claimed that Crowell incurred $19,345.50 in attorneys’ fees between November 3, 2014, and March 28, 2015. CR836-63; 1st Supp. CR3-6. In her Motion to Consider the Supplemental Affidavit, Crowell stated that she decided to submit the Supplement to the Affidavit of John B. Shely to the trial court because: [It] describes additional fees incurred by Ms. Crowell in connection with the pending motions on summary judgment as to attorneys’ fees and for work performed on other litigation activities related solely to Defendant Dr. Eileen K. Starbranch since November 1, 2014. These fees are not included in the pending filings. Consideration of the Supplement will allow the Court to simultaneously evaluate the most recent attorneys’ fees incurred by 6 Calculated from the addition of the following amounts: $6,110.50 (November-December 2014), $5,848.00 (January-February 2015), and $7,387.00 (March 2015). 10 Ms. Crowell along with those previously submitted and will promote judicial efficiency in resolving matters currently before the Court. CR834-35. Crowell did not serve a notice identifying when the Motion to Consider the Supplemental Affidavit would be set for hearing or for submission. On April 6, 2015, the trial court entered an interlocutory summary judgment order that neither granted nor denied Crowell’s Motion for Summary Judgment as to Liability against Starbranch. CR917 (App. 3). Instead of declaring the respective rights and interests of Crowell and Starbranch, the summary judgment order simply provided as follows: Plaintiff Elizabeth Howard Crowell is awarded judgment for attorneys’ fees in the amount of 26,462.00 [sic], from Defendant Eileen K. Starbranch. This amount reflects the unrebutted $19,245.50 set out in John Shely’s April 1, 2015 affidavit and $7,116.50 awarded from the amounts requested in Crowell’s February 25, 2015, motion. To the extent the full amount requested by Plaintiff was not awarded, this Court is sustaining the objections raised by Starbranch. CR917 (App. 3). In other words, the trial court reduced the amount of attorneys’ fees initially requested on February 25, 2015, from $71,345.80 to $7,116.50. Compare CR371 with CR917 (App. 3). In addition, the trial court reduced the amount of attorneys’ fees requested on April 1, 2015, from $19,345.50 to $19,245.50. Compare CR836- 63 and 1st Supp. CR3-6 with CR917 (App. 3). 11 G. The trial court grants Starbranch’s motion to dismiss Crowell’s action for declaratory judgment as moot. On April 3, 2015, Starbranch filed a motion to dismiss Crowell’s claim for declaratory relief as moot because the Association was terminated in 2013 pursuant to a settlement agreement. 1st Supp. CR7-122. Crowell did not file a response to this motion. On April 22, 2015, the trial court entered an interlocutory order stating “that Plaintiff Elizabeth Howard Crowell’s action for declaratory judgment that she filed against Starbranch is dismissed because the claim is moot.” CR1040 (App. 2) (underline in original). On April 24, 2015, Starbranch filed a motion to vacate any order or judgment previously issued and to dismiss the case for want of jurisdiction. 1st Supp. CR124-26. The trial court did not rule on this motion. H. Order and Final Judgment leads to this appeal. On April 16, 2015, Starbranch filed an amended motion for reconsideration objecting to the trial court’s consideration of Crowell’s late evidence filed after the submission date for Crowell’s summary judgment motions. CR981-1011. In her amended motion for reconsideration, Starbranch identified her objections to Crowell’s late evidence and presented affidavits controverting Crowell’s late evidence. CR981-1011. 12 In Crowell’s Response to Starbranch’s Post Judgment Motions, Crowell requested the denial of Starbranch’s amended motion for reconsideration and various other post-trial motions filed by Starbranch. CR1041-43. On April 28, 2015, the trial court granted Crowell’s request and entered an Order and Final Judgment denying Starbranch’s amended motion for reconsideration and awarded Crowell “attorneys’ fees in the amount of $26,462.00 from Defendant Eileen K. Starbranch.” CR1059-60 (App. 1). In its Order and Final Judgment, the trial court held as follows: On April 6, 2015, the Court entered an order resolving Crowell’s claim for declaratory relief . . . (the “Summary Judgment Order”) . . . . * * * On April 22, 2015, the Court entered an [o]rder . . . dismissing Crowell’s claim for declaratory relief as moot because it was resolved by the Summary Judgment Order. CR1060 (App. 1). The trial court never made any declaration of the respective rights and interests of Crowell and Starbranch. CR1059-60 (App. 1). Finally, the trial court made the following statement in its Order and Final Judgment: The Court has considered Starbranch’s objections and took them into account in carefully reviewing the subject attorneys’ fees. The Court eliminated requested fees that were not segregated or were related solely to parties other than Starbranch. Fees were awarded only for causes of action which support attorneys’ fees. 13 CR1059 (App. 1). SUMMARY OF ARGUMENT Crowell misused the Declaratory Judgments Act by duplicating the relief she already sought in her action to quiet title in a claim for declaratory relief. Crowell violated the rule that a party cannot use the Declaratory Judgments Act as a vehicle to obtain otherwise impermissible attorneys’ fees. Consequently, the judgment must be reversed and a take-nothing judgment rendered. For several other independent reasons, the trial court erred or abused its discretion by awarding attorneys’ fees against Starbranch. The trial court improperly usurped the jury’s fact-finding role during a summary-judgment proceeding. For instance, the trial court unilaterally reduced the amount of attorneys’ fees initially requested in Crowell’s motion for summary judgment on attorneys’ fees from $71,345.80 to $7,116.50. Accordingly, the attorneys’ fee award should be reversed and the case should be remanded to the trial court for further proceedings. The trial court abused its discretion by awarding attorneys’ fees that were neither equitable nor just. The trial court awarded attorneys’ fees under the Declaratory Judgments Act before it even declared the representative rights and interests of Crowell and Starbranch. In addition, Starbranch was not even a proper party to Crowell’s declaratory judgment action. Finally, there is no evidence that 14 Starbranch prolonged the case or prevented a complete and final resolution to this case. For each of these independent reasons, the attorneys’ fee award should be reversed and a take nothing judgment rendered or, in the alternative, remanded to the trial court for further proceedings. The trial court improperly issued a summary judgment even though the summary judgment evidence raised several genuine issues of material fact. The Ebaugh Affidavit and the Starbranch Affidavit each raised genuine issues of material fact. In addition, genuine issues of material fact necessarily existed because the trial court sustained Starbranch’s objections to Crowell’s failure to segregate her attorneys’ fees. Finally, Crowell’s own evidence established the existence of genuine issues of material fact. For each of these independent reasons, the attorneys’ fee award should be reversed and the case should be remanded to the trial court for further proceedings. The trial court abused its discretion by considering evidence filed after the submission date and which Starbranch did not have the opportunity to controvert. Two days after the submission date on her Motion for Summary Judgment on Attorneys’ Fees, Crowell filed new evidence supporting a ground for summary judgment that had not been sought in Crowell’s initial summary judgment motion. Because the motion was not supported by good cause and the new evidence unduly 15 prejudiced Starbranch, the attorneys’ fee award should be reversed and the case should be remanded to the trial court for further proceedings. The trial court improperly awarded more relief than was requested in Crowell’s Motion for Summary Judgment on Attorneys’ Fees. The new evidence submitted by Crowell two days after the submission date for the summary judgment motion entailed an independent ground for summary judgment that had not been sought in Crowell’s summary judgment motion. Accordingly, this Court should reverse and remand as to the attorneys’ fees which were never specifically requested in Crowell’s summary judgment motion. ARGUMENT This Court reviews a grant of summary judgment under a de novo standard. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). Questions of law are reviewed “without deference to a lower court’s conclusion.” State v. Heal, 917 S.W.2d 6, 9 (Tex. 1996). “When reviewing a summary judgment, [this Court] ‘must examine the entire record in the light most favorable to the nonmovant, indulging every reasonable inference and resolving any doubts against the motion.’” Yancy v. United Surgical Partners Int’l, Inc., 236 S.W.3d 778, 782 (Tex. 2007) (italics in original). For several independent reasons, the trial court erred by granting Crowell’s Motion for Summary Judgment on Attorneys’ Fees. First, the Declaratory 16 Judgments Act cannot be used as a vehicle to obtain otherwise impermissible attorneys’ fees. Second, the trial court improperly usurped the jury’s fact-finding role during a summary-judgment proceeding. Third, the summary judgment evidence raised genuine issues of material fact. Fourth, the trial court granted Crowell more relief than was requested in her Motion for Summary Judgment on Attorneys’ Fees. In addition, for at least a couple of independent reasons, the trial court abused its discretion by granting Crowell’s Motion for Summary Judgment on Attorneys’ Fees. First, the trial court abused its discretion by awarding attorneys’ fees against Starbranch under circumstances that were neither equitable nor just. Second, the trial court abused its discretion by considering evidence filed after the submission date and which Starbranch did not have the opportunity to controvert. A. The Declaratory Judgments Act cannot be used as a vehicle to obtain otherwise impermissible attorneys’ fees. Crowell has misused the Declaratory Judgments Act. Crowell duplicated the relief she already sought in her action to quiet title via declaration. Thus, any award of attorneys’ fees for Crowell’s declaratory judgment action violates the rule that “a party cannot use the [Declaratory Judgments Act] as a vehicle to obtain otherwise impermissible attorney’s fees.” MBM Fin. Corp. v. Woodlands Operating Co., 292 S.W.3d 660, 669 (Tex. 2009). 17 As the Texas Supreme Court has explained, “[i]f repleading a claim as a declaratory judgment could justify a fee award, attorney’s fees would be available for all parties in all cases. That would repeal not only the American Rule [prohibiting fee awards unless specifically provided by contract or statute] but also the limits imposed on fee awards in other statutes.” Id. For these reasons, “[a] declaratory judgment action may not be used solely to obtain attorney’s fees that are not otherwise authorized by statute or to settle disputes already pending before a court.” Sw. Guar. Trust Co. v. Hardy Road 13.4 Joint Venture, 981 S.W.2d 951, 956 (Tex. App.–Houston [1st Dist.] 1998, pet. denied). The phrases “action to quiet title” and “suit to quiet title” are used interchangeably and refer to the same claim. E.g., U.S. Nat'l Bank Ass’n v. Johnson, No. 01-10-00837-CV, 2011 WL 6938507, at *2-3 (Tex. App.—Houston [1st Dist.] Dec. 30, 2011, no pet.) (mem. op.). “[T]he term ‘suit to quiet title’ has been used broadly in reference to legal disputes regarding (1) title to, and possession of, real property—a trespass-to-try-title action, and (2) validity of other ‘clouds’ which indirectly have an adverse effect on an undisputed owner’s title to real property.” Parker v. Hunegnaw, 364 S.W.3d 398, 402 (Tex. App.—Houston [14th Dist.] 2012, no pet.). In other words, an action to quiet title and an action to 18 remove a cloud on title are one and the same. 7 “[A] suit . . . to remove encumbrances, or remove a cloud or quiet title may be maintained even though the adversary is not actually occupying or in possession of the land.” Texan Dev. Co. v. Hodges, 237 S.W.2d 436, 439 (Tex. Civ. App.—Amarillo 1951, no writ). In fact, an action to quiet title may be asserted, as done so by Crowell in this case, where any instrument 8 “would cast a cloud on the owner’s enjoyment of the property.” Mortg. Elec. Registration Sys., Inc. v. Groves, No. 14–10–00090–CV, 2011 WL 1364070, at *3 (Tex. App.—Houston [14th Dist.] Apr. 12, 2011, pet. denied) (mem. op.). Attorneys’ fees are not recoverable in an action to quiet title. Sw. Guar. Trust Co., 981 S.W.2d at 957. Here, an examination of the pleadings reveals that Crowell’s declaratory- judgment action duplicated her action to quiet title. Crowell sought a declaration that five documents filed in connection with the property owners’ association have “no force and effect,” are “nullified” and are “no longer a cloud on Ms. Crowell’s title to, and right of ownership of, the Property . . . .” CR19-20. In her action to quiet title, Crowell alleged as follows: 7 Lonnie E. Griffith, Jr., J.D., 74 C.J.S. Quieting Title § 3 (April 2015) (Texas does “not observe the distinction between an action to quiet title and to remove a cloud on title, treating the actions as one and the same”). 8 Hahn v. Love, 321 S.W.3d 517, 531 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) (“A cloud on title exists when an outstanding claim or encumbrance is shown, which on its face, if valid, would affect or impair the title of the owner of the property.” . . . “Any deed, contract, judgment or other instrument not void on its face that purports to convey an interest in or make any charge upon the land of a true owner, the invalidity of which would require proof, is a cloud upon the legal title of the owner.”). 19 the [five] documents filed by Defendants in the real property records (see Harris County Clerk File Nos. 20120521806, 20120521807, 20120521808, 201205436661, and 2012054016216) are clouds or encumbrances on Ms. Crowell’s right of ownership of the Property, which affect or impair Ms. Crowell’s title to the Property. Ms. Crowell seeks to nullify the effect of these disputed filings and encumbrances. Ms. Crowell is entitled to a judgment that sets aside these improper filings and removes them as clouds on her title. CR21. In other words, Crowell sought the same relief in her claim for declaratory relief that she sought in her action to quiet title. CR19-21. Because Crowell’s claim for declaratory relief merely duplicated the issues set forth in her action to quiet title, Crowell is not entitled to attorney’s fees based on her claim for declaratory relief. Wise v. Conklin, No. 01–13–00840–CV, 2015 WL 1778612, at *8 (Tex. App.— Houston [1st Dist.] Apr. 16, 2015, no pet.) (mem. op.) (collecting cases and affirming the trial court’s denial of Crowell’s claim for attorneys’ fees because the UDJA could not be used to recover attorney's fees for a suit brought to remove cloud from title); Sw. Guar. Trust Co., 981 S.W.2d at 956 (“Attorney’s fees are not available in a suit to quiet title or to remove cloud on title.”). In addition, in her claim for declaratory relief, Crowell did not seek to construe any terms of the instruments filed by the Association. CR19-21. Consequently, Crowell’s declaratory judgment action could offer her no more relief than her action to quiet title. 20 For these reasons, this Court should reverse the portion of the trial court's judgment awarding attorneys’ fees to Crowell and render judgment that Crowell take nothing on her requests for attorneys’ fees. Universal Printing Co. v. Premier Victorian Homes, Inc., 73 S. W.3d 283, 296 (Tex. App.—Houston [1st Dist.] 2001, pet. denied) (“There is no basis for declaratory relief when a party is seeking in the same action a different, enforceable remedy, and a judicial declaration would add nothing to what would be implicit or express in a final judgment for the enforceable remedy.”); Sw. Guar. Trust, 981 S.W.2d at 956. (denying request for attorneys’ fees where the declaratory judgment action simply sought to nullify the clouds of title rather than to construe the terms of the challenged instruments). Because Crowell only obtained attorneys’ fees from Starbranch, and Crowell cannot recover attorneys’ fees under her claim for declaratory relief as a matter of law, the judgment must be reversed and a take-nothing judgment rendered. B. The trial court improperly usurped the jury’s fact-finding role during a summary-judgment proceeding. “Pursuant to Section 37.009, the judge is to determine whether an award of attorney’s fees is equitable and just; however, even when declaratory relief has been determined by summary judgment, the issue of whether attorney’s fees are reasonable and necessary is a question of fact for the jury to determine when the jury is the trier of fact.” Fuqua v. Oncor Elec. Delivery Co., 315 S.W.3d 552, 559- 21 60 (Tex. App.—Eastland 2010, pet. denied) (citing City of Garland v. Dallas Morning News, 22 S.W.3d 351, 367 (Tex.2000); Bocquet, 972 S.W.2d 19, 20–21 (Tex. 1998)). On April 7, 2013, defendants Anita J. Taylor and Walter J. Taylor requested a jury trial in this case and the jury fee was paid. CR56-58; 1093. “A jury request by one party inures to the benefit of all other parties.” 9 Consequently, Starbranch always had a right to a jury trial in this case. Starbranch never waived her right to a jury trial in this case. Here, Crowell submitted an affidavit stating that $71,354.80 was a reasonable amount for the legal services rendered as of February 24, 2015. CR386-468. Starbranch submitted an opposing affidavit in which her attorney opined that “it is unreasonable to assess $71,354.80 against Starbranch when Crowell’s attorneys have spent so little time prosecuting Crowell’s declaratory judgment action against Starbranch.” CR771. In its Order and Final Judgment, the trial court stated that it had partially granted Crowell’s Motion for Summary Judgment on Attorneys’ Fees on April 6, 2015, and further stated in relevant part as follows: 9 Judge Adele Hedges & Daniel K. Hedges, Involuntary bench trial—No request for a jury trial—Request binding all parties, 2 TEX. PRAC. GUIDE CIVIL TRIAL § 14:25 (Thomson Reuters 2014) (“A jury request by one party inures to the benefit of all other parties. White Motor Co. v. Loden, 373 S.W.2d 863, 865 (Tex. Civ. App.—Dallas 1963, no writ). The inquiry is simply whether one party made a proper jury request, not which party made it. Almaguer v. Jenkins, 882 S.W.2d 903, 904 (Tex. App.—Corpus Christi 1994, no writ) (jury request and fee payment inure to benefit all parties).”). 22 The Court eliminated requested fees that were not segregated or were related solely to parties other than Starbranch. Fees were awarded only for causes of action which support attorneys’ fees. CR1059 (App. 1). In other words, the trial court inappropriately engaged in fact finding when it decided a fact dispute about the amount of attorneys’ fees, if any. General Elec. Supply Co. v. Gulf Electroquip, Inc., 857 S.W.2d 591, 601 (Tex. App.—Houston [1st Dist.] 1993, writ denied) (“Cases dealing with the fixing of attorneys' fees by the trial judge when acting as the trier of fact have no application to a summary judgment proceeding.”). In addition, the trial court inappropriately engaged in fact finding when it decided to award Crowell $19,245.50 of the $19,345.50 initially sought by Crowell in her Motion to Consider the Supplemental Affidavit. Compare CR836-63 and 1st Supp. CR3-6 with CR917 (App. 3). In a declaratory judgment action, the jury, not the judge, decides the amount of attorneys’ fees. Bocquet, 972 S.W.2d at 21. Because the Order and Final Judgment specifies the grounds on which the court bases summary judgment, this Court should limit its review to those grounds. Pentico v. Mad-Wayler, Inc., 964 S.W.2d 708, 712-13 (Tex. App.—Corpus Christi 1998, pet. denied) (“Where the summary judgment order specifies the grounds on which it bases summary judgment, we limit our review to those grounds. The summary judgment will be affirmed on appeal if the specified grounds are 23 meritorious. Even if the motion contained other independent grounds on which summary judgment was sought, the grounds specified in the order are the only ones on which summary judgment may be affirmed.”) (citations omitted). Significantly, “[a] trial court is . . . not permitted to take judicial notice of reasonable and necessary fees under the Declaratory Judgments Act.” Adiuku v. Ikemenefuna ex rel. Ada Mbaise Ass’n of Houston, No. 14–13–00722–CV, 2015 WL 778487, at *12 (Tex. App.—Houston [14th Dist.] Feb. 24, 2015, no pet.) (mem. op.) (“There is no presumption that a request for attorney’s fees under the Declaratory Judgments Act is reasonable.”). Again, only a jury, not the judge, could decide the amount of attorneys’ fees in this case. In McGlown v. Ashford Park Homeowners Association, Inc., No. 01-08- 00619-CV, 2009 WL 1635310 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (mem. op.), this Court held that the trial court’s reduction of the attorney’s fees awarded in a summary judgment proceeding “reflect[ed] that the trial court was duly concerned about the issue [of attorney’s fees], but the court was not authorized to make a fact finding at this stage.” Id. at *4. “[C]ontroverting evidence before the trial court bar[red] summary judgment on the Association's attorney’s fees claim.” Id. For these reasons, this Court reversed the trial court’s summary judgment on the attorney’s fee award and remanded the case for trial. Id. 24 As in McGlown, the trial court below was not authorized to engage in fact finding at the summary judgment stage. The summary judgment rule does not provide for a trial by deposition or affidavit. The rule provides a method for summarily ending a case involving only a question of law and no genuine fact issues. See Gaines v. Hamman, 163 Tex. 618, 358 S.W.2d 557, 563 (1962). The trial court must determine whether fact issues exist, not weigh the evidence or its credibility and try the case on affidavits. Gulbenkian, 252 S.W.2d at 931. Thompson v. Community Health Inv. Corp., 892 S.W.2d 440, 441-42 (Tex. App.—Dallas 1995), rev'd on other grounds, 923 S.W.2d 569 (Tex. 1996). For these reasons, the amount of Crowell’s reasonable attorneys’ fee is still a factual issue to be tried. Accordingly, the attorneys’ fee award should be reversed and the case should be remanded to the trial court for further proceedings. C. The attorneys’ fees are neither equitable nor just. In a declaratory judgment action, the trial “court may award costs and reasonable and necessary attorney’s fees as are equitable and just.” Tex. Civ. Prac. & Rem. Code § 37.009. Though a question of law, the determination of whether attorneys’ fees are equitable and just under the Texas Declaratory Judgment Act is reviewed for an abuse of discretion. Bocquet, 972 S.W.2d at 20-21. “[A] clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion.” Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). In addition, “[i]t is an abuse of discretion for a trial court to rule . . . without 25 supporting evidence.” Bocquet, 972 S.W.2d at 21. “[I]n reviewing an attorney fee award under the [Declaratory Judgments] Act, the court of appeals must determine whether the trial court abused its discretion by awarding fees . . . when the award was inequitable or unjust.” Id. at 21; State & Cnty. Mut. Fire Ins. Co. ex rel. S. United Gen. Agency of Tex. v. Walker, 228 S.W.3d 404, 407 (Tex. App.—Fort Worth 2007, no pet.) (“A court of appeals will determine that the trial court abused its discretion in granting attorney’s fees in a declaratory judgment action if ‘the award was inequitable or unjust as a matter of law.’”). For at least three independent reasons, the trial court abused its discretion by awarding fees that were not equitable and just. First, the trial court awarded attorneys’ fees before it even made any declarations between Crowell and Starbranch or determined that Starbranch had any liability at all. Second, Starbranch was not even a proper party to Crowell’s claim for declaratory relief. Third, despite Crowell’s bald claim to the contrary, Starbranch did not prevent a complete and final resolution to this case. 1. The trial court awarded attorneys’ fees before it even declared the respective rights and interests of Crowell and Starbranch. “Only after the trial court declares the parties’ rights under the Uniform Declaratory Judgments Act, [should the trial court address] whether the evidence is factually sufficient to support a finding that the fees are reasonable and necessary 26 and determine if the award is equitable and just.” VICC Homeowners’ Ass’n v. Los Campeones, Inc., 143 S.W.3d 832, 839-40 (Tex. App.—Corpus Christi 2004, no pet.) (Castillo, J., concurring). In support of this holding, Justice Castillo reasoned as follows: A claim for attorney fees under the Uniform Declaratory Judgments Act is not severable from the merits of the declaratory judgment action itself. See Dalisa, Inc. v. Bradford, 81 S.W.3d 876, 880 (Tex. App.—Austin 2002, no pet.). “‘That a suit for the statutory attorney’s fees as a separate action could not be maintained is evident from the wording of the statute . . . . The attorney’s fees, while not costs, partake of the nature of the costs of suit and are assessed in accordance with the judgment’ reached in the proceeding.” Dalisa, Inc., 81 S.W.3d at 881 (quoting Huff v. Fidelity Union Life Ins. Co., 158 Tex. 433, 312 S.W.2d 493, 501 (1958)). I conclude that the reasonableness, necessity, equitableness, and justness of an award of attorney fees in a declaratory judgment action necessarily are related to the trial court’s declaration of the rights of the parties. I would hold that an award of attorney fees in this case must abide the declaration itself. Id. at 839. Here, the trial court awarded attorneys’ fees before it even declared the respective rights and interests of Crowell and Starbranch. “The purpose of the [Declaratory Judgments] Act is to provide a procedural device whereby litigants can obtain a judicial determination of a controversy.” Kennesaw Life & Accident Ins. Co. v. Goss, 694 S.W.2d 115, 117 (Tex. App.—Houston [14th Dist.] 1985, writ ref'd n.r.e.) The Act is not a “vehicle to recover attorney’s fees.” City of Carrollton v. RIHR Inc., 308 S.W.3d 444, 454–55 (Tex. App.—Dallas 2010, pet. 27 denied). In fact, “fees are not permissible under § 37.009 where [the declaration is sought] solely for the purpose of obtaining attorney’s fees.” Tanglewood Homes Ass’n, Inc. v. Feldman, 436 S.W.3d 48, 69 (Tex. App.—Houston [14th Dist.] 2014, no pet. h.). Because an attorneys’ fee award is merely ancillary to a declaration under the Act, and an attorney fee award is “not severable from the merits of the declaratory judgment action itself,” it is inequitable and unjust as a matter of law to award attorneys’ fees under the Act until a declaration of the rights of the parties has been made. Cf. Crown Asset Mgmt., LLC v. Short, No. 01-08-00042-CV, 2009 WL 1025729, at *4 (Tex. App.—Houston [1st Dist .] 2009, no pet.) (mem. op.) (“In the instant case, the trial court’s award of attorney's fees to Short for his declaratory judgment action was inequitable and unjust because . . . Short produced no evidence to support his claim for declaratory judgment.”). To hold otherwise would turn the American Rule, prohibiting fee awards unless specifically provided by contract or statute, on its head. It also would put the cart before the horse by allowing a party to recover attorneys’ fees without the court first determining liability. For these reasons, the award of attorneys’ fees was neither equitable nor just and the trial court abused its discretion in making the award. Accordingly, the 28 attorneys’ fee award should be reversed and the case should be remanded to the trial court for further proceedings. 2. It is inequitable and unjust to award attorneys’ fees against a person who was not even a proper party to the declaratory judgment action. Because Starbranch raised a fact issue on her defense that she has never been a proper party in this case, it was inequitable and unjust as a matter of law for the trial court to assess attorneys’ fees against Starbranch. If anything, the trial court should have awarded attorneys’ fees against Crowell for unnecessarily joining Starbranch as a party in this lawsuit, “causing her to incur fees that she otherwise would not have had to incur.” E.g. State and Cty. Mut. Fire Ins. Co., 228 S.W.3d at 411 (holing it was just and equitable to award attorneys’ fees to a party that was unnecessarily joined in a declaratory judgment action). In her response to Crowell’s Motion for Summary Judgment on Liability, Starbranch asserted that she was not a proper party to Crowell’s declaratory judgment action. CR740-43. Significantly, Crowell’s evidence did not identify Starbranch as either an officer or a board member of the Association. CR 217-21. Crowell’s evidence demonstrated that Starbranch was nothing more than a member of the Association. CR 181; 211; 260; 302. Consequently, Crowell’s own summary-judgment evidence raised a fact issue as to whether Starbranch was a proper party to the declaratory judgment action. Starbranch also produced 29 summary-judgment evidence that raised a fact issue as to whether she was a proper party to Plaintiff’s declaratory judgment action. CR755-62. A property owners association, its officers, and board members are proper parties to a landowner’s claim for declaratory relief. Tex. Bus. Orgs. Code §§ 22.221 and 22.235. However, “[t]he members of a [nonprofit] corporation are not personally liable for a debt, liability, or obligation of the corporation.” Tex. Bus. Orgs. Code § 22.152. To show that she was not a proper party, Starbranch explained in her response to Crowell’s summary judgment motions that she was nothing more than a member of the Association and that she had never asserted an interest in the Property. CR 740-743. In sum, it is undisputed that the Association was a nonprofit corporation. CR 100. It is undisputed that Starbranch was neither an officer nor a board member for the property owners’ association. CR 217-21. Starbranch testified that she had never asserted any interest in Crowell’s Property. CR 758. In fact, Starbranch disclaimed any and all interest in Crowell’s Property. CR 758. Under these facts, Section 22.152 shielded Starbranch from personal liability arising out of her participation as a member in the Association. Cf. Reiner v. Ehrlich, 66 A.3d 1132, 1143 (Md. Ct. Spec. App. 2013) (affirming dismissal of Plaintiff’s declaratory judgment action against individual homeowners due to homeowners’ immunity from liability under Md. Code Ann., Cts. & Jud. Proc. § 5-422); 65 AM. 30 JUR. 2d Quieting Title § 63 (Database updated May 2015) (“An action to quiet title lies against those who, at the time it is instituted, are the present claimants to the land under the instruments that creates the cloud.”). In Reiner, a married couple sought declaratory relief not only against the homeowners association but also against sixteen individual homeowners in the community. Reiner , 66 A.3d. at 1134-35. The trial court dismissed the plaintiffs’ claim for declaratory relief against the individual homeowners because under Maryland law the homeowners were immune from liability as long as they were acting within the scope of their duties under the homeowners’ association. Id. at 1143. Under Texas law, Starbranch is similarly shielded from personal liability arising out of her participation as a member in the Association at issue in this case. Tex. Bus. Orgs. Code § 22.152. This conclusion is supported by Crowell’s decision to dismiss defendants that were similarly situated to Starbranch. Like Starbranch, the following defendants did nothing more that than approve instruments prepared by the petition committee or another representative of the Association: George L. Parker, Eva K. Parker, Garret S. Madderra, Georgia W. Hitchcock, James Carper, and Eric Mazziotta. CR106-114; 167-185; 197-215; 246-264; 275-283; 293-302. Crowell dismissed each of these defendants from the lawsuit, and none paid any attorneys’ fees. CR26-46; 59-61; 65-68; 72-74. When Crowell dismissed these defendants 31 before obtaining any judgment in the lawsuit, Crowell knew that they were not proper parties to a declaratory judgment action. In addition, it is important to note that Starbranch did not even sign two of the instruments that Crowell sought to declare as void. It is undisputed that Starbranch did not sign the “Notice of Formation of Petition Committee” 10 or the “Petition Pursuant to Property Code § 204.006 To Create The Jandor Gardens Association, Inc.,”11 which are the subjects of the first and fourth declarations sought in Crowell’s Motion for Summary Judgment on Liability. CR20. Consequently, even if she was not shielded from liability under the Texas Business Organizations Code, Starbranch could not have been a proper party to the first and fourth declarations sought against her. After all, there can be no controversy between Crowell and Starbranch in connection with documents that Starbranch did not even sign. Bonham State Bank v. Beadle, 907 S.W.2d 465, 467 (Tex. 1995) (“To constitute a justiciable controversy, there must exist a real and substantial controversy involving genuine conflict of tangible interests and not merely a theoretical dispute.”). Viewed in the light most favorable to Starbranch, the evidence demonstrated that Starbranch was not a proper party to the declaratory judgment action or suit to quiet title. Cf. Kennesaw Life & Accident Ins. Co, 694 S.W.2d at 118 (holding that 10 CR154-57. 11 CR100-04. 32 declaratory judgment was inappropriate against a party in an action to remove a cloud on plaintiff’s title to real property, even though the party may have played a role in creating the cloud, because the party had disclaimed any interest in the property and was not in possession of the property). Consequently, if a take- nothing judgment is not rendered, this Court should reverse the trial court's judgment awarding attorneys’ fees to Crowell and remand for trial. 3. There is no evidence that Starbranch prolonged the case or prevented a complete and final resolution to this case. The only evidence presented to the trial court regarding whether it was equitable or just to assess attorney’s fees against Starbranch was the conclusory and self-serving affidavit testimony of Crowell’s lead attorney, John B. Shely. CR 386-389. Shely testified “[f]inal resolution of the suit . . . has been drawn out by the failure of Starbranch to file an answer for over fourteen months, despite being served with process, and by her failure to rescind her signature to various documents at issue in the case.” CR 389. Nowhere does Shely testify how or why final resolution of the suit depended upon Starbranch’s appearance in this lawsuit or rescission of her signatures. In fact, final resolution of the suit did not depend upon whether Starbranch appeared in this suit or rescinded her signatures; it depended on settlement with the proper parties to the case. 33 Before Starbranch even made an appearance in this suit, Crowell had already obtained all the relief that she sought through her suit to quiet title and her duplicative declaratory judgment action. CR345-46. In 2013, Crowell entered into a global settlement with the Association, its officers and directors. CR866-908 (App. 4). The global settlement agreement removed all clouds of title and terminated the Association. CR866-908 (App. 4). In other words, Crowell’s claim for declaratory relief was completely resolved in 2013 prior to Starbranch’s appearance. CR866-908 (App. 4); 1st Supp. CR 119-22; CR 790-94. Moreover, as explained above, Starbranch has never been a proper party to this lawsuit. See Argument C(2). Consequently, despite Crowell’s claim to the contrary, Starbranch could not have prolonged the case or “prevent[ed] a complete and final resolution to this case.” CR371. For these reasons, Shely’s testimony is conclusory and therefore not competent summary judgment evidence. Texas Division-Tranter v. Carrozza, 876 S.W.2d 312, 314 (Tex. 1994) (holding conclusory statements in support of a motion for summary judgment are “not competent summary judgment evidence”). An affidavit is conclusory if it states a conclusion “without any explanation” or asks the fact-finder to “take my word for it.” Arkoma Basin Exploration Co. v. FMF Assocs. 1990-A Ltd., 249 S.W.3d 380, 389 (Tex. 2008); see also BLACK’S LAW DICTIONARY 308 (9th ed. 2009) (defining “conclusory” as “[e]xpressing a 34 factual inference without stating the underlying facts on which the inference is based”). A conclusory statement does not provide the underlying facts to support the conclusion. Dolcefino v. Randolph, 19 S.W.3d 906, 930 (Tex. App.—Houston [14th Dist.] 2000, pet. denied). A conclusory statement may set forth an unsupported legal conclusion or unsupported factual conclusion. S & I Mgmt., Inc. v. Sungju Choi, 331 S.W.3d 849, 856 (Tex. App.–Dallas 2011, no pet.); Choctaw Props., L.L.C. v. Aledo Indep. Sch. Dist., 127 S.W.3d 235, 242 (Tex. App.— Waco 2003, no pet.). Conclusory affidavits are not sufficient to raise fact issues because they are not credible or susceptible to being readily controverted. Ryland Group v. Hood, 924 S.W.2d 120, 122 (Tex. 1996) (per curiam). Objections that statements in an affidavit are conclusory assert defects of substance, which may be raised on appeal for the first time. S & Mgmt., Inc., 331 S.W.3d at 856; Rockwall Commons Assocs., Ltd., 331 S.W.3d at 507. Pipkin v. Kroger Texas, L.P., 383 S.W.3d 655, 670 (Tex. App.— Houston [14th Dist.] 2012, pet. denied). Simply put, Crowell offered no competent evidence to establish it was equitable or just to assess attorneys’ fees against Starbranch. Crowell offered no other grounds for supporting her claim that attorneys’ fees against Starbranch were just and equitable. Because there is no evidence that Starbranch prolonged the case or prevented a complete and final resolution to this case, it was inequitable and unjust as a matter of law for the district court to assess attorneys’ fees against Starbranch. Bocquet, 972 S.W.2d at 21 (“It is an abuse of discretion for a trial court to rule . . . without supporting evidence.”); Crown Asset Mgmt., LLC, 2009 WL 1025729, at *4 (“In the instant case, the trial court’s award 35 of attorney’s fees to Short for his declaratory judgment action was inequitable and unjust because . . . Short produced no evidence to support his claim for declaratory judgment.”). Accordingly, the attorneys’ fee award should be reversed and a take nothing judgment rendered or, in the alternative, remanded to the trial court for further proceedings. D. The summary judgment evidence raised genuine issues of material fact. “The award of attorney’s fees in a summary judgment is improper unless the evidence of the reasonableness of those fees is uncontroverted.” Guity v. C.C.I. Enter., Co., 54 S.W.3d 526, 528 (Tex. App.—Houston [1st Dist.] 2001, no pet.). Because Starbranch introduced the affidavit of Nelson S. Ebaugh 12 and the affidavit of Eileen K. Starbranch 13 in response to Crowell’s motion for summary judgment on attorneys’ fees, Starbranch created genuine issues of fact regarding the reasonableness of the fees that precluded the granting of summary judgment under Tex. R. Civ. P. 166a(c). Jay Petroleum, L.L.C. v. EOG Res., Inc., 332 S.W.3d 534, 542-43 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) (holding it was improper to award attorneys' fees in partial summary judgment because appellant raised a fact issue by submitting a controverting affidavit from its attorney); General Elec. Supply Co., 857 S.W.2d at 601 (“The only authority we find permitting the award of attorneys’ fees on a summary judgment does not apply 12 CR 769-94 13 CR 755-62 36 unless the evidence of the reasonableness of those fees is uncontroverted; it does not apply when, as here, conflicting affidavits from opposing attorneys are presented.”) (collecting cases). For several independent reasons, the summary judgment evidence raised genuine issues of material fact as to whether the attorneys’ fees were reasonable and necessary. First, the Affidavit of Nelson S. Ebaugh controverted Crowell’s summary judgment evidence. Second, the Affidavit of Eileen K. Starbranch controverted Crowell’s summary judgment evidence. Third, Crowell’s own evidence established the existence of genuine issues of material fact on her claim for attorneys’ fees. 1. The Affidavit of Nelson S. Ebaugh raised genuine issues of material fact. “As a general rule, the party seeking to recover attorney’s fees carries the burden of proof.” Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 10 (Tex. 1991). “Although courts should consider several factors when awarding attorney’s fees, a short hand version of these considerations is that the trial court may award those fees that are ‘reasonable and necessary’ for the prosecution of the suit.” Id. Whether an award of attorneys’ fees is reasonable and necessary is a fact question. Bocquet, 972 S.W.2d at 21 (interpreting the Declaratory Judgments Act to allow a jury, not the trial court, to determine the amount of “reasonable and necessary” attorney’s fees). 37 In the Affidavit of John B. Shely, Shely testified that $71,354.80 was “a reasonable fee for the work which has been performed by Andrews Kurth in this matter as of the date of this affidavit . . . .” CR387. Starbranch controverted this opinion with the Affidavit of Nelson S. Ebaugh. Ebaugh testified as follows: [I]t is my opinion that the amount of $71,354.80 sought by Crowell against Starbranch is unreasonable because Crowell has only served one request for disclosure on Starbranch, has only served one request for production on Starbranch, has not taken any depositions in this case, and has not filed any discovery motions against Starbranch in this case. Under the circumstances, it is unreasonable to assess $71,354.80 against Starbranch when Crowell’s attorneys have spent so little time prosecuting Crowell’s declaratory judgment action against Starbranch. CR 771. Consequently, the Ebaugh Affidavit raised a genuine issue of material fact as to whether $71,354.80 was a reasonable and necessary fee for the prosecution of Crowell’s claim for declaratory relief against Starbranch. Engel v. Pettit, 713 S.W.2d 770, 771-73 (Tex. App.—Houston [14th Dist.] 1986, no writ) (holding that trial court erred in granting summary judgment because of fact issue raised by attorney’s fees affidavit of nonmovant). The remainder of Ebaugh’s affidavit created additional genuine issues of material fact. For instance, paragraphs four and five of the Ebaugh Affidavit also controverted Shely’s opinion that $71,354.80 was “a reasonable fee for the work which has been performed by Andrews Kurth in this matter as of the date of this affidavit . . . .” CR770-771; 387. Because the 38 evidence was sufficient to raise genuine issues of material fact, the trial court erred in granting summary judgment in favor of Crowell. 2. The Affidavit of Eileen K. Starbranch raised genuine issues of material fact. In the Affidavit of John B. Shely, Shely testified as follows: Starbranch was served with the correspondence attached as Exhibit 4- E contemporaneously when the lawsuit was served on her. She did not respond to me regarding Exhibit 4-E nor did she rescind her signature to the documents in issue. CR389. In her affidavit, Starbranch contradicted this statement by testifying as follows: In his affidavit attached to Crowell’s Motion for Summary Judgment on Attorneys’ Fees as Exhibit 4, John B. Shely claims that, on July 1, 2013, I was served with a letter and its enclosure entitled ‘Rescission of Real Property Filings.’ However, I did not receive this letter inviting me to execute the ‘Rescission of Real Property Filings’ when Mr. Shely claimed it was served upon me. The first time that I saw the letter and its enclosure was as an attachment to Crowell’s Motion for Summary Judgment on Attorneys’ Fees as Exhibit 4-E. CR758. Consequently, the Starbranch Affidavit raised a genuine issue of material fact as to whether Starbranch had ever been served with Exhibit 4-E 14, a letter and its enclosure entitled ‘Rescission of Real Property Filings,’ before February 25, 2015. Because the evidence was sufficient to raise a genuine issue of material fact, as to 14 CR 475-79. 39 whether Starbranch prolonged the litigation, the trial court erred in granting summary judgment in favor of Crowell. 3. Genuine issues of material fact necessarily existed because the trial court sustained Starbranch’s objection to Crowell’s failure to segregate. “A party seeking to recover attorney’s fees has the burden to show that the fees were reasonable and necessary which, among other things, requires the party to show the fees were incurred on a claim that allows recovery of such fees.” Goldman v. Olmstead, 414 S.W.3d 346, 367 (Tex. App.—Dallas 2013, pet. denied). The trial court sustained Starbranch’s objections to Crowell’s failure to segregate nonrecoverable fees from recoverable fees and Crowell’s failure to segregate the fees owed by different parties. CR 917. Consequently, as acknowledged by the trial court, there was a genuine issue of material fact as to how much of the attorneys’ fees, if any, incurred by Crowell should have been apportioned to her claim for declaratory relief against Starbranch. “[T]he need to segregate attorney’s fees is a question of law, while the extent to which certain claims can or cannot be segregated is a mixed question of law and fact.” Ca Partners v. Spears, 274 S.W.3d 51, 81 (Tex. App.—Houston [14th Dist.] 2008, pet. denied) (citing Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 312-13 (Tex.2006)). Once the trial court has decided that attorneys’ fees need to be segregated, only under limited circumstances may the trial court 40 participate in the segregation of attorneys’ fees. Chapa, 212 S.W.3d at 341. For example, a court may decide as a matter of law whether overcoming an affirmative defense was necessary to prevail on a claim under which attorneys’ fees are recoverable. Id. However, “when . . . it cannot be denied that at least some of the attorney’s fees are attributable only to claims for which fees are not recoverable, segregation of fees ought to be required and the jury ought to decide the rest.” Id. Because some of the attorneys’ fees that Crowell sought were “attributable only to claims for which fees are not recoverable,” Starbranch was entitled to have a jury, not the trial court, segregate Crowell’s attorneys’ fees. In sum, as acknowledged by the trial court, the summary judgment evidence raised a genuine issue of material fact as to whether the attorneys’ fees sought were appropriately segregated. Accordingly, the attorneys’ fees award should be reversed and remanded to the trial court for a jury, not the judge, to segregate the attorneys’ fees. AMX Enters., L.L.P. v. Master Realty Corp., 283 S.W.3d 506, 523 (Tex. App.—Fort Worth 2009, no pet.) (“remand is required to calculate the segregated award”). 41 4. Crowell’s own evidence established the existence of genuine issues of material fact. Crowell presented contradictory evidence as to the amount of reasonable and necessary attorneys’ fees incurred by her. First, Crowell introduced the Affidavit of John B. Shely wherein Shely testified as follows: In my opinion, a sum equal to $71,354.80 is a reasonable fee for the work which has been performed by Andrews Kurth in this matter as of the date of this affidavit [February 24, 2015]. CR387. In other words, Shely claimed that $71,354.80 was a reasonable and necessary fee for representing Crowell from February 28, 2013, through February 24, 2015. Then, Crowell introduced the Supplement to the Affidavit of John B. Shely wherein Shely claimed that reasonable and necessary attorneys’ fees incurred by Crowell from November 3, 2014, through March 28, 2015, amounted to $19,345.50. 1st Supp. CR3-6. These two affidavits were inconsistent with one another because they each identified a different amount for the allegedly reasonable and necessary attorneys’ fees incurred between November 3, 2014, and February 24, 2015. Armbruster v. Memorial Southwest Hosp., 857 S.W.2d 938, 941 (Tex. App.—Houston [1st Dist.] 1993, no writ) (“The movant’s own evidence may establish the existence of a genuine issue of material fact . . . .”). Given the conflicting evidence presented by Crowell on the amount of her reasonable and 42 necessary attorney’s fees between November 3, 2014, and February 24, 2015, there are genuine issues of material fact as to the amount of her reasonable and necessary attorneys’ fees. E. The trial court abused its discretion by considering evidence filed after the submission date and which Starbranch did not have the opportunity to controvert. A trial court’s decision to allow evidence to be filed after the submission date on a motion for summary judgment and before summary judgment is rendered is reviewed for an abuse of discretion. Beavers v. Goose Creek Consol. I.S.D., 884 S.W.2d 932, 935 (Tex. App.—Waco, 1994, writ denied). Late-filed summary judgment evidence may be considered by the trial court only upon a showing of (1) good cause, and (2) no undue prejudice. Caldwell v. Carrollton Air Conditioning, Inc., No. 07-05-0241-CV, 2007 WL 2390425, at *6 (Tex. App.—Amarillo Aug. 22, 2007, pet. denied) (mem. op.) (citing Wheeler v. Green, 157 S.W.3d 439, 442 (Tex.2005)); see also Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 686 (Tex.2002) (“Our rules . . . provide that a trial court may permit an act to be done after a period prescribed in other procedural rules upon a showing of ‘good cause.’ Tex. R. Civ. P. 5.”). “Good cause exists when a failure was the result of accident or mistake and not intentional or the result of conscious indifference.” Id. “Undue prejudice depends on whether allowing late submission will delay trial or significantly hamper the opposing party’s ability to prepare for it.” Id. 43 Two days after the submission date on her Motion for Summary Judgment on Attorneys’ Fees, Crowell filed new evidence, entitled the “Supplement to the Affidavit of John B. Shely.” 1st Supp. CR3-6. The Supplement to the Affidavit of John B. Shely identified $19,345.50 in additional attorneys’ fees that Crowell had not requested in her Motion for Summary Judgment on Attorneys’ Fees. Compare CR366-480 with CR836-63 and 1st Supp. CR3-6. Significantly, Crowell failed to demonstrate that her late filing of evidence was accidental instead of intentional or the result of conscious indifference. CR836-63; 1st Supp. CR3-6. In addition, Crowell failed to demonstrate that her late filing would not cause Starbranch undue prejudice. CR836-63; 1st Supp. CR3-6. Without giving Starbranch an appropriate opportunity to object or otherwise respond, and less than a week after Crowell filed the new evidence, the trial court awarded $19,245.50 (of the $19,345.50 sought in Crowell’s Motion to Consider the Supplemental Affidavit). CR917 (App. 3). Starbranch filed an amended motion for reconsideration objecting to the trial court’s consideration of the new evidence. CR 981-1011. In her amended motion for reconsideration, Starbranch identified her objections to Crowell’s new evidence and presented affidavits controverting Crowell’s new evidence. CR 981-1011. The trial court denied Starbranch’s motion for reconsideration. CR 1059-60 (App. 1). 44 Because summary judgment is a “harsh remedy,” the notice requirements of the rule must be “strictly construed.” Sams v. N.L. Indus., Inc., 735 S.W.2d 486, 487 (Tex. App.—Houston [1st Dist.] 1987, no writ). Starbranch should have been given notice of when the trial court would consider Crowell’s new evidence. Tex. R. Civ. P. 21 (b) (“An application to the court for an order and notice of any hearing thereon, not presented during a hearing or a trial, must be served upon all other parties not less than three days before the time specified for the hearing, unless otherwise provided by these rules or shortened by the court.”). However, Crowell did not provide Starbranch with notice of either a hearing or a submission date on Crowell’s Motion to Consider the Supplemental Affidavit. Consequently, Starbranch had no way of knowing how long she had to respond to Crowell’s new evidence. Under these circumstances, Starbranch was unduly prejudiced. To give Starbranch a full opportunity to respond to Crowell’s new evidence, Starbranch should have been given notice of a hearing or submission date on Crowell’s Motion to Consider the Supplemental Affidavit and adequate time to respond to Crowell’s new evidence. Without notice of when Crowell’s new evidence would be considered by the trial court or an opportunity to object or otherwise respond to the new evidence, Starbranch was unduly prejudiced. Cf. Sanders v. Capitol Area Council, 930 S.W.2d 905, 911 (Tex. App.—Austin 1996, no writ) (“[A]llowing arguments made in the movant’s reply to be considered, after 45 the fact, as independent grounds for summary judgment would subvert the orderly process contemplated by rule 166a and put the nonmovant to an unfair burden.”); Extended Services Program, Inc. v. First Extended Serv. Corp., 601 S.W.2d 469, 470 (Tex. Civ. App.—Dallas 1980, writ ref'd n.r.e.) (“To hold otherwise would permit the movant to take unfair advantage of the nonmovant by permitting the movant to serve his summary judgment evidence on the nonmovant on the seventh day before the hearing, thus requiring the nonmovant’s response to depend upon leave of the court. This would be untenable under our summary judgment practice.”). For these reasons, the trial court abused its discretion by entering summary judgment based upon new evidence that was not supported by good cause and that unduly prejudiced Starbranch. Accordingly, the attorneys’ fee award should be reversed and the case should be remanded to the trial court for further proceedings. F. The trial court granted more relief than was requested in Crowell’s Motion for Summary Judgment on Attorneys’ Fees. A “motion for summary judgment must itself state specific grounds on which judgment is sought.” McConnell v. Southside Independent School Dist., 858 S.W.2d 337, 339 (Tex. 1993). “The motion for summary judgment must stand or fall on the grounds it specifically and expressly sets forth.” Id. “[A] summary judgment cannot be sustained on a ground not specifically set forth in the motion.” 46 Id. “[A] literal reading of Rule 166a(c) and [other] authorities indicate that the motion itself must state the grounds.” Id. (bold in original). In other words, a movant may not file supplemental evidence to amend her motion for summary judgment or to raise new and independent summary-judgment grounds. Cf. McConnell, 858 S.W.2d at 339 (“When a motion for summary judgment asserts grounds A and B, it cannot be upheld on grounds C and D, which were not asserted, even if the summary judgment proof supports them and the responding party did not except to the motion.”); Highland Capital Management, L.P. v. Ryder Scott Co., 402 S.W.3d 719, 740 n.12 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (“A movant is not entitled to use its reply to amend its motion for summary judgment or to raise new and independent summary-judgment grounds.”). In her motion for summary judgment on attorneys’ fees, Crowell specifically sought $71,354.80 because, “[a]s outlined in Mr. Shely’s affidavit, $71,354.80 is a reasonable fee given the actions of Starbranch and other defendants after Ms. Crowell purchased property intended for her home and other development.” CR 370-71. This amount represented the fees allegedly incurred by Crowell between February 28, 2013, and October 1, 2014. CR 386-479. Crowell’s motion did not expressly seek the recovery of any other attorneys’ fees incurred by Crowell. CR 366-72. 47 Without demonstrating good cause,15 Crowell filed her Motion to Consider the Supplemental Affidavit after the submission date for the summary judgment motion. Compare CR836-63 and 1st Supp. CR3-6 with CR722-23. As expressly acknowledged by Crowell, she filed her Motion to Consider the Supplemental Affidavit to raise new and independent summary judgment grounds that she had not presented in her summary judgment motion. CR834-35. Crowell submitted the supplement to the affidavit of John B. Shely to the trial court because: [It] describes additional fees incurred by Ms. Crowell in connection with the pending motions on summary judgment as to attorneys’ fees and for work performed on other litigation activities related solely to Defendant Dr. Eileen K. Starbranch since November 1, 2014. These fees are not included in the pending filings. Consideration of the Supplement will allow the Court to simultaneously evaluate the most recent attorneys’ fees incurred by Ms. Crowell along with those previously submitted and will promote judicial efficiency in resolving matters currently before the Court. CR834-35 (bold and italics added for emphasis). According to Crowell’s lead counsel, the attorneys’ fees incurred since November 1, 2014, totaled $19,345.50. 1st Supp. CR3-6. The trial court awarded most of these fees (i.e., $19,245.50) even though they entailed a new and independent ground for summary judgment that had not been sought in Crowell’s initial 15 Carpenter, 98 S.W.3d at 686 (“Our rules . . . provide that a trial court may permit an act to be done after a period prescribed in other procedural rules upon a showing of ‘good cause.’ Tex. R. Civ. P. 5.”). 48 summary judgment motion. Compare CR366-480 with CR836-63 and 1st Supp. CR3-6. The trial court erred by awarding $19,245.50 which was never specifically requested in Crowell’s summary judgment motion. Tex. R. Civ. P. 166a(c); Hourani v. Katzen, 305 S.W.3d 239, 255 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) (“A trial court errs in granting more relief than was requested” in the summary judgment motion); LaGoye v. Victoria Wood Condominium Ass'n, 112 S.W.3d 777, 786 (Tex. App.—Houston [14th Dist.] 2003, no pet.) (“a trial court cannot grant more relief than was requested by a motion for summary judgment”). “When, as here, a trial court grants more relief by summary judgment than requested, by disposing of issues never presented to it, the interests of judicial economy demand that [this Court] reverse and remand as to those issues, but address the merits of the properly presented claims.” Positive Feed, Inc. v. Guthmann, 4 S.W.3d 879, 881 (Tex. App.—Houston [1st Dist.] 1999, no pet.). Accordingly, this Court should reverse and remand as to $19,245.50 which was never specifically requested in Crowell’s summary judgment motion. CONCLUSION AND PRAYER For the foregoing reasons, Starbranch respectfully requests that the Court reverse the district court’s judgment and render judgment that Crowell take nothing on her claim for attorneys’ fees under the Declaratory Judgments Act. 49 Alternatively, Starbranch requests that the Court modify the judgment to dismiss the claim for declaratory relief and remand for a new trial on attorneys’ fees. Starbranch also asks for all other relief to which she is entitled, including vacatur of the award of attorneys’ fees when the judgment to which it relates is either modified or set aside. Respectfully submitted, NELSON S. EBAUGH, P.C. /s/ Nelson S. Ebaugh Nelson S. Ebaugh Texas Bar No. 24007139 NELSON S. EBAUGH, P.C. 2777 Allen Parkway, Suite 1000 Houston, TX 77019 Ph (713) 752-0700 Fax (713) 739-0500 nebaugh@ebaughlaw.com COUNSEL FOR APPELLANT 50 CERTIFICATE OF COMPLIANCE Based on a word count run in Microsoft Word 2007, this brief contains 11,742 words, excluding the portions of the brief exempt from the word count under Texas Rule of Appellate Procedure 9.4(i)(1). /s/ Nelson S. Ebaugh Nelson S. Ebaugh CERTIFICATE OF SERVICE On September 11, 2015, I electronically filed this Brief for Appellant with the Clerk of Court using the eFile.TXCourts.gov electronic filing system which will send notification of such filing to the following: John B. Shely Courtney B. Glaser ANDREWS KURTH, LLP 600 Travis, Suite 4200 Houston, Texas 77002 JShely@andrewskurth.com CGlaser@andrewskurth.com /s/ Nelson S. Ebaugh Nelson S. Ebaugh 51 APPENDIX Tab Item 1. Order and Final Judgment, signed April 28, 2015 (CR1059-60) 2. Order on Defendant Starbranch’s Motion to Dismiss Action for Declaratory Judgment and Action to Quiet Title, signed April 22, 2015 (CR1040) 3. Order Granting Motion for Summary Judgment on Attorneys’ Fees, signed April 6, 2015 (CR917) 4. Settlement Agreement and Mutual Release, effective October 15, 2013 (CR866-908) 5. Certificate of Termination of a Domestic Nonprofit Corporation or Cooperative Association (Jandor Gardens Association, Inc.), filed on November 20, 2013 (1st Supp. CR120-22) 6. Tex. Bus. Orgs. Code § 22.152 7. Tex. Bus. Orgs. Code § 22.221 8. Tex. Bus. Orgs. Code § 22.235 9. Wise v. Conklin, No. 01–13–00840–CV, 2015 WL 1778612 (Tex. App.—Houston [1st Dist.] Apr. 16, 2015, no pet.) 10. McGlown v. Ashford Park Homeowners Association, Inc., No. 01-08- 00619-CV, 2009 WL 1635310 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (mem. op.) 52 -t/'2312015 4;37:35 PM ctlrl$ Dilnlel - Dl~trlct Clcti( H~rrl5 County l!nvclopc No: 8013488 B).': TOLMAN, TAMMY E Ftled: 4123f2015 4::37:35 PM CAUSE NO. 2013·14192 e ELIZABIITH BOWARD CROWELL § IN THE DISTRICT COURT § vs. § § § /fHRt_ JANDOR GARDENS ASSOClA1'fON, INwever, Starbranch' s request for dismissal of Plaintiff's claim for declaratory relief is well taken. Accordingly, it is hereby ORDERED that Plaintiff Elizabeth Howard Crowell's action for declaratory judgment that she filed against Starbranch is dismissed because the claim is moot. 0 2-z Signed on --~--"--'1--------'' 2015. 1040 CAUSE NO. 2013-14192 tl ELIZABETH HOWARD CROWELL § § IN THE DISTRICT COURT OF {1/A § § vs § HARRIS COUNTY, TEXAS § § JANDOR GARDENS ASSOCIATION, § et al. § § 55TB JUDICIAL DISTRICT ORDER GRANTING MOTION FOR S UMMARY JUDGMENT ON ATTORNEYS' FEES Upon consideration of Plaintiffs Motion for Summary Judgment on Attorneys' Fees, Defendant Starbranch's 1response and objections, Plaintiff's reply and supplement, t he Court finds that the Motion should be granted to the following extent: Plaintiff Elizabeth Howard Crowell is awarded judgment for attomeys' fees in the a mount of 26,462.00, from Defend:mt Eileen K. Starbrancb. This amount reflects the unrebutted $19,245.50 set out in John Shely's April 1, 2015, affidavit, and $7,116.50 awarded from the amounts requested in Plaintiffs February 25, 2015, motion. To the extent the full amount requested by Plaintiff was not awarded, the Court is sustaining the objectlons raised by Starbranch. IT IS SO ORDERED. SIGNED on the ~ day of A~ FILED Chris Daniel Dlstrlct Clerk APR 0 6 2015 nme~~--,~~~~---­ Hanlo County, Texa. By-----~~-----­ Deputy 917 SF.TfLJ:M f.ST A GR ~F.MENT AND ~flJTlJAt R F.L f.i\Sf. Thi !' Se1tlemem Agreement and Mutual Relea~ (the "Ag.reemC7lt'") is bet\H!ffi: Elizah'J)Utes. claim~. and caw;es of action made the subject of thi s Agreement No ()(her Defendantslw!sides Rick Rambo ;mel Frctne1on. Te;(as (U)c - Appenn. The L1w1mit. the Cet•nterc.taim. :uld the Appeal may be coTi ectively referred to as the ''Liti ~'ltion.~ E. WllER.t:AS. tbt: Court grumed Plai.ntifrs M.o1ion for Summary Judgment and in tlmt ~rd signed Orders Or\ Augu-st 19, 20'13, and Or\ Oe1. 2013 and OctoberS. 20IJ Ordtrs for a. more thoroush deS(;ription of the 1eal ptQJ)erty filing.s at issue ial the L.itisalion 866 Plaintiff002761 F. WHEREAS, Defendants deny ar1y liability to PlaintitT for a.ny disputes, claims, or alleged causes ofactiou made the basis of the Litig.1tion. G. WHEREAS, Plaintilf dMies any liability to Defendants for any disputes, claims, or nllcgcd c.ausy em;)il or fax. M email or f;r\: transmission showing that the signatory l1as signed this Agreernem shall be the cqtJivaJent of an original $i~n"-tu re for al1 purposes 21. Notices. 1\ll notices that any Patty to this 1\ Sfccmem may be required or may wish to give in connection, wi th this Agreement shall, be addressed to counsel: of record at the addresses set fortb below (or at other sucJ1 C. 1415 Couisiana. 3CJII:i Floor, Houston, T~xa.s 77002, .e/ippt>r '§lm·svhwest.com. 871 Plaintiff002766 IN WITNESS WHEREOF, the Parties have executed this Agreement on the dates set forth below. EFFECTIVE DATE: October 15, 2013 [end of page] 7 872 Plaintiff002767 IMPORTANT: READ TlilS AGREEMENT ANU CONSULT WJ'I'H YOUR l..A'-VVF.R JJI!.:fORE SlGNlNG! THE STATE O.F TEXAS COUNTY OF HARRIS OE.FORE ME, the undetsij!;lled authority, onlhi~ day personally appeared ELT7..ABETH HOWARD C)t0\"'ELL, known to me to be tl~e person wl1ose nam" is subscribed to the fnrcgoing instrumem und acknowledged to me that she execute-d the same for the purpose& ruld eom•idt•ration thet-ein exptt:sllt:d, aod in the capaeity tl)etein stated, and as h~r act and deed. d.:!. GIVF.N \JNDF.R MY HAND AND SF..AL Of OFFlCH lbis __L_~.~ day of __jl~.tt--···---' W 13. ___.._______ -- _,. ,.......,_.,_ ...__ .. __ ........____ ______ ...,...__ _ ... ___ ........""""'"'_______ ,_______,,,..... _...,..,...,..._,_ ..._._____ . . . .............. ...._.. ................,. ~ _ . _ - · - · " · " · " " ' ~ - ~ - 873 Plaintiff002768 IMPORTANT ~ REAl} TJJIS AGRJ:o:f:MENT AN:O CONSULT Wfl'fl YOUlt u \.WYF.R RK"Ii'ORE SlGNlNG! JANDOR G.ARDE'NS ASSOCfATlON, INC f?.·ic..k @etM-ko ___ _ l itle: ~----'- 'bir-rdu s~.ated. tul•.l ~s lw; I·:! I acr .mel deed. (i!VE>J UNDER MY rl!\NO AND SEAl . or OffiCI" ~hi~ --~ ~ ---~4!1ORTANT: IUt~l) nns AG~tsed. and.in the capacity therein $rated, and. m; her act and deed. Gi VEN UNDER M'\' BAND AND SEAL OI·~ OJ'FlCF !his /t;> ----'-- day of ___ f.'!_ tn.unent :1.nd GIVEN UNOF.R MY HA"ff) ANTI SEAL OF Off iCE this ____ [4 '2,_ day of 1\ I() 'v-r; Yn ~~ ')Q I 3 _;_ I "_' - - - - - ------"' .. . U:~~J -df!-~:6 . N()iary Puhlic In u.nd Por The Stat~ of Texas !J - ·-· · -- - --~,-- · - ...... . ..... ..... .................... •• _ . . - - - - ... --·-·--·""'·~""'"..- · ··- ··· - · .............. ..... . . - . . ...... ....... ...... .. ..... . ....... ...... . . . ..... ... .. \ .''1'\\......\ . 876 Plaintiff002771 IMPORTANT: READ 1'HIS AGREEMENT ANll CON'SlJLT WITH YOUR Lt.\WY:ER BEFOJU!: SIGNING! _, .JP bJ-1£) By: ;~~VI IJ::'IJ(l~VJC tf6~ed, alld io tlte capacity lh~rein stated, arJ.d as his aot ond deed. r GtVEN tiNDER MY HAND AND SEAL OF OFFICE this /'J b day of /}/17/C)I.. /::uvL ~-------·- 2013. __/::~~i&::;__)- / ) Notury .Public In ilnd For The State ofTe.x.as 12 - - - - · -·-•-•··•·"''''''' ...,,,,.,,,.,, .. ,,,,,,.,.,u,_ __...,.. ..... .,...,..,,~,,,,,,,,,,.,,,,,,,,,.,,,, ...,,.,.,,.... -----~~~-.....--- _ ...... ............-...---....-....-..... -.----- 877 Plaintiff002772 IMPORTANT: Rt-:AO TlJIS AG REEMENT ANO CO~Sti LT WITH \'OCR J_\\VYER RF..FORF.. SlGNlNG! rHE STI\Tf: OF TEXAS § COUNn· OF HA RR,lS *§ BEFORE ME. the undcr~ignl!d au:thonty, on !.his da) per:-N)ally ~[ip~at ~d RICh. RAMBO. known to me to b.! the persuu whose name is subscribed to the f,)r-~going instrument aml. ad.-ntwtleJ gt.-d tn me that l1e exe..:uted thc. same for tht~ purposes and constde.mtiou therein tlXpressed. and in ·the capacity therein stated, and as h is her act and deed. GIVE"l U:-JDER MY HAND AND Sl!J\.L OF OHlCE thii' ..ffi·t¥1-'?>l-~-· 2013. /J P;/.:? ./'A·-.... t'~f.~ ?.:.!::::. .:f:::.~-!'..!!:"ii.?. Notary Pt•blk !n ::1nd F01' 1 he Stale of Texas l4 ="'~-----·· --·----·--...------•··-••. ' '"'.. "''''''''''v•••••••• ••-....... •• _ _ _ _ _ _ _......,_,..,....,,..,....,,,,,,,.,, .. ,..,,_ ,,,.,,,,,,, ........- - -· · • 879 Plaintiff002774 J liE S'l ATf Of~TEX.~S 'COtlNlY 01· l-1 :\RRJ~ STOCK. knowl'l lj) me I:!J be Ole p~rson whqse Hl).IHC is subscribigncd aulhon:y, OJl this da} j)\!rsonull>· apJX""!.It..-J WVMAI\' H. HERENDEEN, knou'tl l•) m:: lo h;,; lhe p.!~('f1 whose n:une is subscrib~d 111 the fi.H~going instrument and acknowlcdger The Stat.e ofTexa~ 17 882 Plaintiff002777 IMI'~ORTAN'f: R EAD THIS AGREEMF~NT ANU CON~1JLT WHH VOVR l.AWYER BEFORE Sl(iNfN'G! I)Jt ~ Dy: MA~RENO.EEN - -. - - - - - - - THES1ATE OFT!;:XAS § § COUNTY OF HARRIS § Bli'-rORE ME. the 1111d~-:11li£ned authority, on thi ~ day pt:rs&MIIy appc:tlr'ecl MARY HEUENDEE;N. known w me to be the person whose name is subscnbe.d l .:!013. ~a) .--/ _ /~ - · - ~-·%~ Notary Public ln and For ----·- -- f'he State ofTexllll ·-· ·- ···- ..........._........... • . . . . . . . . . . . . . . . . . . _ _ _ _ _, _ _ , , . 00400010 . . . . . . . . . . . . . . . . . . . . . . .. -.. -....... . ........... . . . . . . . . . . . . . . . . . . . ........... ~ _~-o ~·······--·-··4-. ............- . . ____ ,_____,_,______ 883 f.MPOR'JAJ.~l': .REAJ) THIS ACREE.I\-'tENT A,ND CONSUlT 'W{Tll YGU~ L AWYf!:R BEFORE SIGNING! Hy: 1 f.JF STATE Qf TC:XAs ~ ~ COUNTY 0¥ HARRTS § BEFORE Mt:.. the uodcrsigf1cd authoritY, on this day personaU:y- appettr;Ms tktober 6, 2018 ---·· '-=""---· '"""'"" ' '" '""'" """'- -~---·--· . -· ' ''"' ' '''"""""'"'"'"""'"""'"""''"""'"""''"""''"'"""-"'""'' ""'' . _,_. . ,v....,_...._..___ .,._.,.....__ _ _..,.__ 885 Plaintiff002780 tMl'UllTANT: RE A]) TJ:HS AGltE.3Ml>.:NT AND CONSIJLT WITH Y()U{ LAWYKR .B'lses. and com:iu· ·:·woll lhcn:ir• GIVEN UNOJ:R MY IJAND A D SEAL OF OFFrCE t!Hs :' 6>_ _ , _ day of _::_(/~',ht?~~~---· zo !3 Nott•ry Publ.ic Jn and f or The State ofTcxa.'l ----------~-- -- -·----·-···-·····-··-·····..········· ............. '' -- ,.... 886 .................................... Plaintiff002781 l~·IPOJH.~'IIT: RKAJ> THIS AGREE MJ . 7 /J. Notarj>...-l'~•blio !n 141d For The State of Texas ' ----·"'~'""""""''''"'""'''"'''''''''"'"''''''"''''''~········--··· 888 Plaintiff002783 Il\IPORTi\NT: READ Tf11S AGRtE.M ENT AND CONSt:LT W(TH YOUR LAWYER .l lF.FORg SlGI'!l"G! By; ~vf ·.RTCA LE\"ff -·--------: THl:' STATE OF TEXAS § § COlTNl Y OF HARRIS § BEFORE ME, thc the person wh,>Sc name is subscl'ibed 1o \he foregoing itllltnJJ'nem .and acl-.nowledgcd lo me that :)ile executed lho;; '>ame for the purpose~ and consideration thcrdn e~prt!SS!!d, and lll t:he capacity therein SUited, and ttS bet act and deed. 01VEN UNDER MY HANl) AND SEAL OF OFFICE this ~fn whose name 1s subscribed to lhe~ t{m~gDin t! instrumt'1ll cxprcss;ed, ~md in the capacity tht::.l'l::iJ1 sltiled. and a;; his acl and dt:ed ;d G!VFI\' CKDF.R \1V I L~ND AND SEAL OF OFrrll. thi:.. I t( -:- - c.b y of =.zz_v>t:~·vt~"l/-- . . 2013. - - ·-·--· -· ---- Not.ary Public lJ~ nnd For 'l he SMe of rexas 25 ..............................,.,_,.,..................,..______________________ , ...,. ..... ___ ,. ------ 890 Plaintiff002785 JMPORTAJ\"T: REA D HHS AGR.EEME!'\I'f ANU CONSUL'l' Wl TH YOVR LA.WY!tR U£Ji'ORJ~: S1GNJNG'! THE STATE Of TEXAS § ~ COl l'NTY OF HARRIS * BEFORE M(!, rJw undt:rsigned authority, on this Qay pers(')nally a,ppcared A.al'll code provinon$. 7ht.eedur.::s for· windl1\g up rhe busioes~ and a0a1ts of the e.~lity in the mannef p• ovided irl chapter II ofth~ Texas Business OrgBllizations C'ode (BOC). On completion of the winding up pJoce.ss, a tllintt en tit)' mu.st li.le t1 ~rtitieatc: of tcrmlNition "itb tltc sc:cret:uy of Slate. /rrl\ fnrm ' n11ly app/Jcoh/1! IO t/N! lt!I'»>IIKtlfnn tif(J IKNtj)N~flf C.'OJ'jXN'ttlllJJI t'N' 0 COO{~fY-1111'1! ll...~/afiOJI. rn:u ructiou~ for Form • Items l-4--Entity Information: The certifi cate of termination musi contain tJte le.gal name of ltle t'tltity IIJXfJ.{il t'()I]}I'J{'fl fiQII or ( I C:WJXlrtllilf'it (~'l!Cified. Do not use pceftxes (e.g., Mr , Mrs , M$. ). Use the suffix box only (or titles of lincag.c (c...g., Jr , Sr.. IU) and not for oilier sutftxt:S or titles (e.g" M.D.• Ph D ). An address i~ .always required fi')( escll gcweming person. Please note that a dooument on tile wiUl tbc secre1JUy or state IS a public record tha1 is subject 10 public aoce.ss a11d disclosure. When providing addtess infonnation for g:OSt office box: address ntthcr than a rcsidooce address i 1 privacy concerns are an issue. • hem 6-Everlt Rt>quiring Windin,2 lip: The certificate of tentlinatiOJl nlll$t state the natu~ of the CJ\I fl'lelu.irin(l windUI(l up of tJte entity. $().';tions J 1.0$ I lO ll .059 of the {.'\1 noc C II and 22 of the BOC. {2) There i$ no suit pending againSt the noopmlit corporation (}IT adeqtmte prov isioo has been made t"or tl~ S1ll\l , or simil3t pu rpose:~. b~Jt tht= nonp•olit oorporatioo did nOt bold 1fte propcsty 001 a COJlditioo requiring rewm, transfer. or cou\lcyance bec..'lu~ oft he windi 11~ up a•.d tl!ll'llintniM, the tlisuit>ution ofthr11 propeny hilS been efl'ect.:tl in accordan~ w'ith a plan of distribution ~dopted in compliance widt the BOC for the distributiOil of th~t PfOper1)' • Rrrcec iv en ~ (If Filing: ,\ Ce1"tific.'lte of t~nination becom.~s enective wt•en rlled b)' the ~creta ')' of suue (optioo A). Hm.,e.v.er, pursuant to seclimts 4.052 and 4.053 of the BOC the etTecti~neS$ of the irt~nnn..:n t may bt: dtla)' ~ h> ;1 date not mOJ'I! than ninely (trument is signed (option B}. The elfectivenes:$ of the imtrument also mar be delayed 00 the ()CCUrT'ellCe of a fl1tll•'l! e ...·wt or fWrds of the sec~ary of state will be ch3fl...!;Cd to show the filing of the doet1 nH~nt~ the date of the Iii ins, and the future date 011 which the dO was condi tioned on tile occurrence of a fitture event Of' fact ln addition, at the time of such fili1\_g, the Status 6f tht: fil ii~ entity will be :shown as "voluntarily tcnmnated" oo d1e records of the secretary of st3te • F.-'l:ere not:uh::ed How.:vl!f, bt:fore si~lli!Jg , please reaf!Ti-•· OR 111 01WA;\IIZAT IIIN 0 1'J;IUJfZ:'tJiitm .LV Omit ADDRESS Srr~l'l or Mmling IJ(/dre ..._, Store Ziv Cod¢ - - - C.w c;,''"'"'' COVE.RNING PERSON 2 NAME ()'RESS ,Wr.:.·r o1· .~ failio~ vlddrtle GOVERNING PERSONA NAME ( l!.n1« 1h~ muue- nf cuhcr•Htt andivitlu!\1 or :111 ot g:utiZlii HH\.. hu1nQt hffik) Ill' l NDIYffil::\1. J•w.:u Nom{· M. J / J(I.tl .Vamc :;uj]i."letion of Winding Up 7. The tiling entity has complied with the provisions of the Texas Business Organizations Code governing 1ts winding up Sut>r lemental Inforrnnti:on Required For a Nonprofit Corporntiotl The twder!signed authorized person actin~ 011 behalf of the named nonprofit corporation certilies that. 3 EXHIBIT B - PAGE 5 OF 6 901 Plaintiff002796 I. Any prop~rty of the nonprofit corpomtion l1as been transfened. conveyed. applied. or di sttibutcd in accordance with chapter l Tand chapteJ 22 of the Texas Busine~s Orsanizations Code. 2 There is no suir per1ding against the nonprofi! corporation or that adequate ptovisio1' has been made for the satisfaction of any judgment, order or decree that may be entered against the nonprofit col'poration in a pending ~uil ~ T'f the nonprofit corporation r'eceived G. t RJZK. BILLm RIZK, BENJAMIN LEVIT, § ElUCA LEVlT, GARRETS. MADDERRA, § Gl!.ORGE W. HAWKlNS, EILEEN K. § STARDRANCD, CATHERJNE A. MORGAN, § . ~., GEORGIA W. HITCHCOCK, JAMES § CARl'ER, WAVl'ER J. TAYLOR, .ANITA J . § TAYLOR, AND ERlKMAZt.lOTTA § HARRIS COUNTY, TEXAS ORDER Oa tbia day, the Court considered tho Unopposed Motion for Entry of Order £ilod by Plninti!f Eli:Gllhcth H"ow(U'd Crowell. The Cout't flnds Ulnt good oause o.xistB to GRANT the mellon. For the reasons act out In PJ11intifrs Motion for Su.n\Jnory 1udgmcnt, and beoD\1$0 notice required under Property Code § 204.006(1) & § 204.00S(c) wu not (liVen to PlaintlO', lt is, cher·efore ORDERED that the "Notioc of Jlormnlion of Petition Committee" filed Novc;mber 8, 2012 (Ha.rris CountY Clc:rk File No. 20120521806) hils no force and elleol, is ,. ' nullified, and is no longer a cloud on the tlllc to, and t ight of ownership o~ the Proper1y; t~ is further ORDERED that the "Pel\llon Approval" tiled Novernbor 8, 2012 (Harrl.s Count)' Clerk Pilo No. 20120S21807) has no foroc -"d effeot, ir. nulliflod, e.nd is no loneer a cloud on the title to, nnd right of ownership of, the l'ropet1y; FILED Chrl& DaniOI Dl•trlct Cltrk IJOU:3lS019U OCT 0 8 2013 EXHIBIT C - PAGE 1 OF 4 903 Pia intiff002798 J It ia further ORDERED that the "Petition and First Amondmoat to Declaration Cot Jandor Oardens" fJJcd November 8, 2012 (HilU"is County Clerk File No. 20 12052 1808) has no force and effect, is nullified, and b no longer o cloud on tho title to, und right of ownership of, the Property; lt Is further ORDERED that the "Petition Pursuant to Pcopert)' Cod.e § 204.006 To Crelltc TI1e Jandor Gardens Association, lno.'' filed November 19, 2012 (Ha·rris Collnty CleTk File No. 20!20536661) has no force und effect, is nullified, and is no loogcr a olou.d on the title to, and .' right of ownership of, the Property; lt is furthor ORDERED that the "First Amendment to Deoloretion for Jandor GDrdeos" r filed November 20, 2012 (Harris County Clerk File No. 20120S40l6'2)hu no fon:e and effect, is nullified, and is no longe1' a cloud on the title to, a.nd right of ownership of, the Ptoporty; It is further ORDERED that the "Notice of Porroatlon of Petition Ulmmittu'' filed November 14, 2012 (Harris County Clerk File No. 20120530364) has no force and effect, Is nullified, and is no lonur a cloud on the title to, lllld right of owntll'ship of: the Pro pony; sud It ir further ORDERED that tho ''First Amcndrnont to Docloradon for J'andor Gardens" fllcc:l March 19, 2013 (Harri~ County Cl11rk File No, 20130126400) hns no tbcoo and e!Tect, is . ' •f . nullltlcd, and Js no longcc a clo\ld on the Iillo to, and right of ownership of. the Property. 'l'hls Order in no manner affcot5 tl1c right of any party to appeal the Order. ~~ ~. Y:;' day of_....:rO~J- '- 0 ..... 0 SIONBD this _ ___.2013. l!• .,.,..., ~ g ,... .,., Rou.mom.2 EXHIBIT C • PAGE 2 OF 4 l f 904 Plaintiff002799 JuniY m, Shely Eri~ppcr { / · S c arNo .. lS215300 ~lo.Bar N~920.0.Q, C u ·ey B. Glaser HIRSCH & WESTHETMER., P.C. S Bar No. 24059824 1415Louisiona, 36th Floor ~ RRWS KURTH LLP Houston, Texas 77002 600 Travis, Suite 4200 7t3.220.9181 Telephone Houston, Texas 77002 713.223.9319 Facsimile 713.220.4200 Telephone 71 ~.220.4285 Facsimile ATTORNEYFORDEFBNOANTS WYMAN & MARY RBRENDEEN, ATIORNBYS FOR PLAINTIFF BENJAMIN & ERlCA LEVIT, ELIZABETH HOWARD CROWELL LAWRENCE E. PLOTSKY, RlCK & FRANCES RAMBO, .E!DW hRD & BlLLTE RlZK. FE.RBIDOON & SOODY SHAlUFl, DAVID & ANNA STOCK, WALTER & ANITA TAYLOR. and ~t&- · SARAH WHITING & RON WITTE By: ~ .. J&Jnes 1. McConn, Jr. State Bar No. 13439700 HAYS McCONN RICE & PlCKBRlNG 1233 Wost Loop South, Suite 1000 Houston, Tex.as 77027 713.654.111 1 Telephone 713.650.0027 Facsimile ATTORNEY FOR DEFENDANTS JANDOR GARDENS ASSOCIA-TION, INC., !tON WITr.B, RICK RAMBO, WYMAN H. HERENDEEN, ANNAL. STOCK., and FBREIDOON SHARJFI ,IIOU:3lS0701.l EXHIBIT C - PAGE 3 OF 4 905 Plaintiff002800 I, Chris Daniel, District Clerk ofHanis County, Texas certify tbat t.his i.s a true and correct copy of the original record filed artd or recorded in my office, electronically or hard copy, as it appears on this date. Witness my oftloiaJ hand and seal of office this October25. 201.3 Certified Doc.umcnt Number: 57702657 Total Pages: 3 Chris Daniel, DISTRICT CLERK HARRIS COUNTY, TEXAS Tn accorda'nce with Texas Gove)·nment Code 406.0l3 electronically transmitted authenticated documents are valid. If there is a ques tion regarding the validity of this document and or seal please e-mail support@hcdistrictclerk.com · EXHIBIT C- PAGE 4 OF 4 906 Plaintiff002801 ~~~..-~r- .. n ~ .... ~'!ltt Q6 •' EXHIBIT 0 - PAGE 1 OF 2 907 Plaintiff002802 EXHIBIT 0 - PAGE 2 OF 2 908 Plaintiff002803 Corporations Section Carlos Cascos P.O.Box 13697 Secretary of State Austin, Texas 78711-3697 Office of the Secretary of State The undersigned, as Secretary of State of Texas, does hereby certify that the attached is a true and correct copy of each document on file in this office as described below: Jandor Gardens Association, Inc. Filing Number: 801686494 Certificate of Termination November 20, 2013 In testimony whereof, I have hereunto signed my name officially and caused to be impressed hereon the Seal of State at my office in Austin, Texas on April 02, 2015. -- Carlos Cascos Secretary of State Come visit us on the internet at http://www.sos.state.tx. us/ 119 Phone: (512) 463-5555 Fax: (512) 463-5709 Dial: 7-1-1 for Relay Services Prepared by: SOS-WEB TID: 10266 Document: 599592520005 1112a12013 12 37 7135211633 SCHULTZ PAGE a2/Hl Thts space reserved for office use Form 652 (Rev1sed OS/11) F ll E 0 In the Offtce of tne Return m duphcate to Secretary of State of Texas Secretary of State P 0 Box 13697 NOV 2 0 2013 Austm, TX 78711-3697 Certificate of Termination 512 463-5555 of a Domestic Corporations Sectron FAX 512 463-5709 Nonprofit Corporation or Filing Fee $5 Coo erabve AssQCJatlon Enttty Information v 2 The enttty ts orgamzed under Texas law as a 12?nonprofit corporation 0 cooperatt~e assocultiOO 3 The date of formatiOn of the entity IS II- I~- I'- 4 The file number Jssued to the entity by the secretary of state IS Governmg Persons 5 The names and addresses of each of the entity's govemmg persons are (see m>tmn•l GOVERNING PERSON I NAME (Entcr the name ot c1ther an mdrv1du11l or at~ Of"&\lOI?.3tJOn. but not both} IF li'olJIVItll'AL Ftr~Name f!:.·'ck. '- 1 OR IF ORGANIZATION Organl:all()n Name ADDRESS 5 3:l.'Zl X:p,;f,-{,.r.~ Street or MalitnJ?. Addres> L,., tfo .. s.fPt~ Oty IX 77ao5 Stat IV /v r TX: +7-aor- 'ib·eet or Ma•lmg Address Cuy Mate '()!t!fff'\J 7to CQde GOVERNING PERSON 4 NAME {Enter m, natl'l¢ ofetttu:r an mdlVIdual or an ()rgamzabon llut not both} IF 11'1)1\'ID\lAJ,. Fu•st Name Ml Last~ame Stif}" OR IF ORGANIUTION Orgam::;.afion Varne ADDRESS ,_ Stteer or Mailing Address Cltv State ('ntmtJ \ Zm ('Qde Event Requmng Wmdmg Up (See mstruc:tton& ) 6 The nature of the event requmng wmdmg up IS set forth below {'>elect etthcr "' B C' D orE ) A voluntary dec1ston to wmd up the ent1ty has been approved m the mannet requrred by the Texas Busmess Orgamzat1ons Code and by the govermng documents of the enltl)' DB The penod of duration spectfied m the govermng documents of the enuty has exprred De The occurrence of an event spec1fied m the govemmg documents of the enttty that reqmres the wmdmg up, dtssolutJon, or termmatwn of the entlly DD The occurrence of an event spectfied tn the Texas Busmess Orgaruzanons Code that reqmre~ the wmdmg up, dtssolutton, or termmatton of the entity A court decree requmng the wmdmg up, dtssolutwn, or termmatton ofthe entlt} has been rendered under the provtstons of the Texas Bustness Orgaruzabons Code or other Jaw Completion ofWmdmg Up 7 The fihng entity has comphed wtth the provtstons of the Texas Busmess Organmttlon~ Code govermng tts wmdmg up Supplemental Information Requu·ed For a Nonprofit Corporatum The understgned authom:.ed person actmg on behalf of the named nonprofit corporatiOn certifies that Fmm652 5 121 EXHIBIT 8 ~PAGE 5 OF 6 11/20/2013 12 37 7135211633 SCHULTZ PAGE 04/16 'I Any property of the nonprofit corporation has been transferred, conveyed, apphed, or d!stnbuted 111 accordance w1th chapter 11 and chapter 22 of the Texas Busmess Orgamzat10ns Code 2 There 1s no su1t pendmg agamst the nonprofit corporatiOn or that adequate provisiOn has been made for the satJsfactton of any JUdgment, order or decree that may be entered agamst the nonprofit corporat10n m a pendmg smt 3 If the nonprofit corporation recetved and held property perrmtted to be used only tor chantable rehg1ous, eleemosynary, benevolent, educational, or s1m1lar purposes, bUt the nonprofit corporatiOn d1d not hold the property on a condtt1on requmng return, transfer, or con'l>eyance because of the wmdmg up and termmatton, that the d!Stnbubon of that property has been effeeted m accordance w1th a plan of d1stnbutton adopted m comphaoce wtth the BOC for the d1stnbut1on ot that property Effectiveness of F1hng (Select either A B, or c ) ~Tills document becomes effectJVe when the document ts filed by the secretary of ~tate B D Thts document becomes effe<:ttve at'a later date, whtch IS not more than nmety (90} days from the date of s1gmng The delayed effective date IS C D Tills document takes effect upon the occurrence of the future event or fact, other than the passage of tJme The 90'0 day after the date of s1gmng ts Execuhon The undersigned stgns th1s document subject to the penalt1es rrnposed by law for the ~ubmtsston of a matena!ly false or fraudulent mstrument and certifies under penalty of perJury that the undersigned IS autbonzed under the provtsJons of law govermng the ent1ty to execute the filmg mstrument Date By A person authonz;d by law to ~ecute tht. tHing mo;lrumcm (sec tnsttuctton:s} 1(/eK L /{.4/?'JE{) Prmted or typed name of a.uthonzcd persoQ Fonn 652 6 122 EXHIBIT 8 - PAGE 6 OF 6 § 22.152. Immunity from Liability, TX BUS ORG § 22.152 Vernon's Texas Statutes and Codes Annotated Business Organizations Code (Refs & Annos) Title 2. Corporations (Refs & Annos) Chapter 22. Nonprofit Corporations Subchapter D. Members V.T.C.A., Business Organizations Code § 22.152 § 22.152. Immunity from Liability Effective: January 1, 2006 Currentness The members of a corporation are not personally liable for a debt, liability, or obligation of the corporation. Credits Acts 2003, 78th Leg., ch. 182, § 1, eff. Jan. 1, 2006. V. T. C. A., Business Organizations Code § 22.152, TX BUS ORG § 22.152 Current through Chapters effective immediately through Chapter 46 of the 2015 Regular Session of the 84th Legislature End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 § 22.221. General Standards for Directors, TX BUS ORG § 22.221 Vernon's Texas Statutes and Codes Annotated Business Organizations Code (Refs & Annos) Title 2. Corporations (Refs & Annos) Chapter 22. Nonprofit Corporations Subchapter E. Management V.T.C.A., Business Organizations Code § 22.221 § 22.221. General Standards for Directors Effective: January 1, 2006 Currentness (a) A director shall discharge the director's duties, including duties as a committee member, in good faith, with ordinary care, and in a manner the director reasonably believes to be in the best interest of the corporation. (b) A director is not liable to the corporation, a member, or another person for an action taken or not taken as a director if the director acted in compliance with this section. A person seeking to establish liability of a director must prove that the director did not act: (1) in good faith; (2) with ordinary care; and (3) in a manner the director reasonably believed to be in the best interest of the corporation. Credits Acts 2003, 78th Leg., ch. 182, § 1, eff. Jan. 1, 2006. V. T. C. A., Business Organizations Code § 22.221, TX BUS ORG § 22.221 Current through Chapters effective immediately through Chapter 46 of the 2015 Regular Session of the 84th Legislature End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works. © 2015 Thomson Reuters. No claim to [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4068843. Public record. Not legal advice.