Gateway Estates Homeowners Association, Inc. v. Sheila M. Larry ( 2015 )

Reverse in part and Remand; Affirmed; Opinion filed May 14, 2015.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-14-00689-CV
GATEWAY ESTATES HOMEOWNERS ASSOCIATION, INC., Appellant
V.
SHEILA M. LARRY, Appellee
On Appeal from the 14th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-14-02404-A
MEMORANDUM OPINION
Before Chief Justice Wright, Justice Myers, and Justice Evans
Opinion by Justice Evans
This is an appeal from a summary judgment granted in favor of Gateway Estates
Homeowners Association, Inc. for unpaid assessments owed by Sheila M. Larry. In a single
issue, Gateway contends the trial court erred in failing to order that its lien on Larry’s property
be foreclosed and granting an order of sale as part of the summary judgment. We agree.
Accordingly, we reverse the trial court’s judgment in part and remand the cause for issuance of
an order of foreclosure.
FACTUAL BACKGROUND
On March 10, 2014, Gateway Estates Homeowners Association, Inc. filed suit against
Sheila M. Larry seeking to recover unpaid property owner assessments and attorney’s fees.
Gateway also sought foreclosure of its lien on the property and an order of sale to satisfy the
judgment pursuant to a contractual lien created by the Declaration of Covenants, Conditions and
Restrictions for Gateway Estates on file in the Dallas County real property records. Larry was
served with process on March 18 and filed a pro se answer on April 14.
On April 22, Gateway filed a motion for summary judgment on its claim attaching (1) an
authenticated copy of the Declaration, (2) the affidavit of Gateway’s accountant showing the
amount of past due assessments Larry owed, and (3) an affidavit by Gateway’s attorney in
support of an award of attorney’s fees. Larry did not file a response. On May 19, 2014, the trial
court signed a final summary judgment in favor of Gateway awarding it $5,911 in fees due and
owing together with post-judgment interest and attorney’s fees. The court refused, however, to
order foreclosure of Gateway’s lien on Larry’s property or issue an order of sale. Gateway now
brings this appeal.
ANALYSIS
In its sole issue, Gateway contends the trial court erred in refusing to render, as part of
the summary judgment in its favor, an order allowing foreclosure of the contractual lien on
Larry’s property. We review a trial court’s summary judgment de novo. See, e.g., Travelers Ins.
Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010); Nixon v. Mr. Prop. Mgmt. Co., Inc., 690
S.W.2d 546, 548 (Tex. 1985). A traditional summary judgment may be granted only if the
movant demonstrates there are no genuine issues of material fact and it is entitled to judgment as
a matter of law. TEX. R. CIV. P. 166a(c); Nixon, 690 S.W.2d at 548–49.
The purchase of property within a deed restricted subdivision carries with it the
obligation to pay association fees for maintenance and ownership of common facilities and
services. See Inwood N. Homeowners’ Ass’n, Inc. v. Harris, 736 S.W.2d 632, 636 (Tex. 1987).
The remedy of foreclosure is an inherent characteristic of that property right. Id. Although the
remedy may seem harsh, a homeowners association has the right to foreclose its contractual lien
on the houses of delinquent owners. Id. at 637. If an association shows, as a matter of law, that
–2–
a delinquency and a contractual lien exist and the lien may be foreclosed upon to satisfy the debt,
the trial court may not refuse to enforce the association’s right of foreclosure. See Cottonwood
Valley Home Owners Ass’n v. Hudson, 75 S.W.3d 601, 603 (Tex. App.—Eastland 2002, no pet.);
Village Green Homeowners Ass’n, Inc. v. Leeder, No. 04-10-00522-CV, 2011 WL 721260, at *2
(Tex. App.—San Antonio March 2, 2011, no pet.) (mem. op.).
When the trial court in this case granted summary judgment in favor of Gateway on its
claim against Larry for unpaid assessments, it necessarily concluded Gateway was entitled to
judgment in its favor as a matter of law. The summary judgment evidence included both an
affidavit demonstrating delinquency and a declaration showing a contractual lien on the property.
There is no indication the trial court concluded there were any fact issues with respect to the
enforceability of Gateway’s contractual lien, nor do we see any in the record. Because Gateway
demonstrated its entitlement to judgment as a matter of law, the trial court erred in refusing to
order the foreclosure. See Leeder, 2011 WL 721260, at *2.
CONCLUSION
Based on the foregoing, we reverse the portion of the trial court’s judgment declining to
order foreclosure of the contractual lien on Larry’s property and remand the cause to the trial
court for issuance of an order of foreclosure and further proceedings consistent with this opinion.
In all other respects, the judgment of the trial court is affirmed.
140689F.P05 /David Evans/
DAVID EVANS
JUSTICE
–3–
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
GATEWAY ESTATES HOMEOWNERS On Appeal from the 14th Judicial District
ASSOCIATION, INC., Appellant Court, Dallas County, Texas
Trial Court Cause No. DC-14-02404-A.
No. 05-14-00689-CV V. Opinion delivered by Justice Evans. Chief
Justice Wright and Justice Myers
SHEILA M. LARRY, Appellee participating.
In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED in part and REVERSED in part. We REVERSE that portion of the trial court's
judgment declining to order foreclosure of Gateway Estates Homeowners Association, Inc.’s
contractual lien on the property of Sheila M. Larry. We REMAND this cause to the trial court
for issuance of an order of foreclosure and further proceedings consistent with this opinion. In all
other respects, the trial court's judgment is AFFIRMED.
It is ORDERED that appellant Gateway Estates Homeowners Association, Inc. recover
its costs of this appeal from appellee Sheila M. Larry.
Judgment entered this 14th day of May, 2015.
–4–