Kathy J. Koteras v. Pine Village ( 2010 )

Opinion issued December 9, 2010

In The

Court of Appeals

For The

First District of Texas

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NO. 01-09-00177-CV

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KATHY J. KOTERAS, TRUSTEE OF THE 5715 C EASTHAMPTON TRUST, Appellant

V.

PINE VILLAGE NORTH ASSOCIATION, Appellee

On Appeal from the County Civil Court at Law No. 1

Harris County, Texas

Trial Court Cause No. 927,889

MEMORANDUM OPINION

          Appellant, Kathy J. Koteras, trustee of the 5715 C Easthampton Trust, appeals from a judgment rendered in favor of appellee Pine Village North Association.  The Association sued Koteras for unpaid maintenance assessments charged by the Association.  The trial court granted the Association’s motion for summary judgment, rendering judgment for $1,151.32 in damages, attorney’s fees, and pre- and post-judgment interest.  The trial court also provided for foreclosure on the property at issue.  On appeal, Koteras asserts that no notice was given to the beneficiaries and that foreclosure on trust property is improper for a personal obligation of the trustee.  We conclude Koteras waived any error by failing to raise the issue before the trial court.  We affirm.

Background

          Koteras, as trustee of the 5715 C Easthampton Trust, purchased property in the Pine Village North Townhouses subdivision.  The Association is the homeowner’s association of the subdivision. As part of the covenants running with the land within the subdivision, the Association makes assessments of fees for maintenance of the subdivision.

          The Association brought suit against Koteras for past due fees.  The Association moved for summary judgment. On the day of the hearing, Koteras filed a response to the summary judgment.  The sole issue raised in this response was that the Association was not in good standing with the Texas Comptroller’s office.  After curing unpaid fees, the Association was once again stated to be in good standing by the Comptroller’s office.  The trial court rendered summary judgment in favor of the Association. 

Summary Judgment

          On appeal, Koteras contends that the trial court’s judgment violated the Texas Property Code, asserting that no notice was given to the beneficiaries and that foreclosure on trust property is improper for a personal obligation of the trustee.  “Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal.”  Tex. R. Civ. P. 166a(c); see also, e.g., Robnett v. Kirklin Law Firm, 178 S.W.3d 45, 52–53 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (refusing to consider on appeal contentions raise in supplemental response to summary judgment without leave of court).  Here, Koteras does not contend that the evidence is insufficient to support a summary judgment, nor does she dispute that the assessments were owed to the Association.  Koteras’s only ground to resist summary judgment was the Association’s lack of good standing with the Texas Comptroller.  Koteras did not raise in writing before the trial court any of the grounds concerning the Texas Property Code that she now asserts on appeal.  Therefore, these grounds may not serve as a basis to reverse the trial court.  See Tex. R. Civ. P. 166a(c); Robnett, 178 S.W.3d at 53.  We overrule Koteras’s contentions concerning the Texas Property Code.[1]

Conclusion

          We affirm the judgment of the trial court.

                                                                   Elsa Alcala

                                                                   Justice

Panel consists of Justices Jennings, Alcala, and Sharp.

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[1]           On January 26, 2010, this Court issued an order stating that Koteras’s brief failed to comply with the requirements of Rule 38 of the Texas Rules of Appellate Procedure and giving her an opportunity to re-brief her case.  Koteras did not file another brief.