Christina Bob v. Cypresswood Community Association ( 2015 )

Opinion issued May 28, 2015
In The
Court of Appeals
For The
First District of Texas
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NO. 01-14-00311-CV
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CHRISTINA BOB, Appellant
V.
CYPRESSWOOD COMMUNITY ASSOCIATION, Appellee
On Appeal from the County Civil Court at Law No. 3
Harris County, Texas
Trial Court Case No. 1036047
MEMORANDUM OPINION
This is an appeal from a suit to recover homeowner’s association fees.
Christina Bob appeals the trial court’s summary judgment in favor of the
Cypresswood Community Association, awarding it the fees and associated costs.
Bob contends that (1) the trial court erred in failing to rule on her pending motions
before it granted summary judgment; (2) the Association was required to join
Bob’s husband as a party to the suit; (3) the Association’s attorney violated the
Texas Disciplinary Rules of Professional Conduct; (4) the Association violated its
Declaration of Covenants, Conditions, and Restrictions; (5) the Association
misapplied her payments; (6) the trial court abused its discretion in denying a new
trial; and (7) the trial court erred in denying her motion to correct a clerical error.
Finding no error, we affirm.
Background
In 2006, Bob purchased a lot within Section Four of the Cypresswood
residential subdivision. The lot is subject to the maintenance charges and
assessments found within the Association’s Declaration. In 2013, the Association
filed suit against Bob for past due assessments and collection costs. Bob generally
denied the claims. The Association then moved for summary judgment and
submitted affidavit evidence of damages totaling $2,207.38. Bob did not file a
response, but she moved for a continuance of the summary judgment hearing and
for leave to file a late response. In January 2014, the trial court granted summary
judgment and denied Bob’s motions.
Discussion
We liberally construe Bob’s pro se brief.
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Standard of Review
We review de novo the trial court’s ruling on a motion for summary
judgment. Samuel v. Fed. Home Loan Mortg. Corp., 434 S.W.3d 230, 233 (Tex.
App.—Houston [1st Dist.] 2014, no pet.) (citing Mann Frankfort Stein & Lipp
Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009)). In a traditional
motion for summary judgment, like the one filed in this case, the movant must
establish that no genuine issue of material fact exists and that the movant is entitled
to judgment as a matter of law. See TEX. R. CIV. P. 166a(c); Little v. Tex. Dep’t of
Crim. Justice, 148 S.W.3d 374, 381 (Tex. 2004). A judgment seeking affirmative
relief requires a movant to prove that it is entitled to judgment as a matter of law
on each element of its cause of action. Winchek v. Am. Express Travel Related
Servs. Co., Inc., 232 S.W.3d 197, 201 (Tex. App.—Houston [1st Dist.] 2007, no
pet.) (citing Rhone–Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222–23 (Tex. 1999),
and Rizkallah v. Conner, 952 S.W.2d 580, 582 (Tex. App.—Houston [1st Dist.]
1997, no writ)). “Only if the movant conclusively establishes its cause of action
does the burden shift to the nonmovant to respond with evidence raising a genuine
issue of material fact that would preclude summary judgment.” Id. at 202 (citing
Steel, 997 S.W.2d at 222–23). We indulge every reasonable inference in the
nonmovant’s favor. Samuel, 434 S.W.3d at 233 (citing Valence Operating Co. v.
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Dorsett, 164 S.W.3d 656, 661 (Tex. 2005), and Provident Life & Accident Ins. Co.
v. Knott, 128 S.W.3d 211, 215 (Tex. 2003)).
I. Pre-Trial Motions
Bob first contends that the trial court made a clerical error in not
“acknowledging” or “present[ing] for consideration” her (1) motion for leave to
file a late response to the motion for summary judgment and supporting documents
and (2) motion for a continuance of the summary judgment hearing. She further
contends that the court did not rule on her motions before granting summary
judgment. However, the record on appeal contains orders denying both motions,
signed on the same day as the summary judgment. Accordingly, we hold that she
presents no error regarding the trial court’s failure to rule.
II. Failure to Join Indispensable Party
Bob next contends that the Association failed to join her husband as a party
to the suit because, she contends, he is a co-owner of the property.
Applicable Law
Chapter 209 of the Texas Property Code applies to residential subdivisions
that are subject to a declaration authorizing a residential property owners’
association to collect regular or special assessments on all or a majority of the
property in the subdivision. See TEX. PROP. CODE ANN. § 209.003(a) (West 2013).
It applies to associations that require mandatory membership for all or a majority
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of the owners of residential property within a subdivision, each of whom is subject
to the association’s dedicatory instruments. Id. § 209.003(b). Under Chapter 209,
an “owner” is “a person who holds record title to property in a residential
subdivision . . . .” Id. § 209.002(6). “‘Record title’ means title as it appears in the
public records after the deed is properly recorded.” Longoria v. Lasater, 292
S.W.3d 156, 165 (Tex. App.—San Antonio 2009, pet. denied) (citing BLACK’S
LAW DICTIONARY at 1523 (8th ed. 2004)).
Analysis
The Association is subject to a Declaration of Covenants, Conditions, and
Restrictions and is authorized to collect assessments on the property within its
subdivision. See TEX. PROP. CODE ANN. § 209.003(a). Additionally, it provides
that each person who is a record owner in the subdivision “shall be a member of
the Cypresswood Homeowners’ Association.” See TEX. PROP. CODE ANN.
§ 209.003(b).
In the warranty deed for the property at issue, the grantee is “Christina Bob,
A Married Woman.” Additionally, in the deed of trust, the borrower is “Christina
Bob, A Married Woman,” although Bob’s husband also signed it. Although Bob
observes that a later transfer of the mortgage lien lists her husband as a borrower,
the warranty deed contains only her name. Thus, she is the owner of the property
for purposes of Chapter 209 of the Property Code; we hold that the Association’s
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decision to sue Bob only, and not her husband, does not warrant reversal. See TEX.
PROP. CODE ANN. § 209.002; Longoria, 292 S.W.3d at 165; BLACK’S LAW
DICTIONARY at 829.
III. Attorney Conflict of Interest
Next, Bob contends that the Association’s attorneys engaged in professional
misconduct because they directly communicated with her during their
representation of the Association; such communication, she contends, amounts to a
conflict of interest. She cites to the provision in the Texas Disciplinary Rules of
Professional Conduct governing the conduct of a lawyer acting as an intermediary
between clients. See TEX. DISCIPLINARY RULES PROF’L CONDUCT R. 1.07,
reprinted in TEX. GOV’T CODE ANN., tit. 2, subtit. G, app. A (West 2013). But the
Association’s attorneys represented the Association, not Bob. She adduced no
evidence that the Association’s attorneys purported to act as an intermediary or
jointly represented both the Association and Bob. See id. Bob further
acknowledges that she was not represented by an attorney in this case; thus, the
Association’s attorneys were not prohibited from communicating directly with
Bob, so long as they identified themselves as counsel for the Association. See
TEX. DISCIPLINARY RULES PROF’L CONDUCT R. 4.03. We hold that Bob does not
present a complaint of professional misconduct.
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IV. Issues Raised in the Motion for New Trial
Bob contends that the Association (1) violated its declaration when it did not
schedule a time for her to inspect its books and records, in response to her request
to do so; (2) was not authorized by the Declaration to charge the amounts it claims
that Bob owes in unpaid assessments and costs; (3) misapplied one of her
payments; and (4) charged too much in assessment costs while denying her access
to recreational facilities, all in violation of the Declaration.
Applicable Law
We will not consider a ground for reversal that was not expressly presented
to the trial court by written motion, answer, or other response to the motion for
summary judgment. See TEX. R. CIV. P. 166a(c) (“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.”); Unifund CCR Partners v. Weaver,
262 S.W.3d 796, 797–98 (Tex. 2008) (per curiam) (“[A] party who fails to
expressly present to the trial court any written response in opposition to a motion
for summary judgment waives the right to raise any arguments or issues post-
judgment.”).
Analysis
Bob raised the forgoing issues in her motion for new trial after the trial court
granted the Association’s motion for summary judgment, but she did not raise
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them in a response to the motion for summary judgment. Similarly, in her motion
for leave to file a late response, Bob contended that she had requested documents
from the Association before it filed suit. But she did not raise a request to inspect
its books or records. The trial court did not authorize the late-filed evidence, and it
did not state that it considered that evidence in denying the motion for a new trial.
Because Bob did not raise her complaints about record inspection, overcharges,
denial of access, misapplication of payments, and a violation of the Declaration
before the trial court had granted summary judgment, these complaints are not
grounds for reversal. See TEX. R. CIV. P. 166a(c); Unifund, 262 S.W.3d at 797–98.
Additionally, Bob waived these issues on appeal because she did not cite to
the record to support her contentions, nor did she cite any legal authority to support
her contention that the Association misapplied her payment. See TEX. R. APP. P.
38.1(i) (“The brief must contain a clear and concise argument for the contentions
made, with appropriate citations to authorities and to the record.”). In the
remaining issues, she cited the Association’s Declaration without citing other legal
authority. See id.
We hold that Bob waived her appellate complaints about inspecting the
Association’s records, its authorization to charge assessment costs, misapplication
of payments, and denial of access to recreational facilities by failing to timely
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present them in the trial court. See TEX. R. CIV. P. 166a(c); TEX. R. APP. P. 38.1(i);
Unifund, 262 S.W.3d at 797–98.
V. Visiting Judge
Finally, in her “Issues Presented” section of her brief, Bob contends that a
visiting judge erred in denying her a new trial and in refusing to reverse the trial
court’s prior rulings. Bob does not address this issue in her brief; accordingly, we
hold that she has waived it on appeal. See TEX. R. APP. P. 38.1(i).
Conclusion
We affirm the trial court’s summary judgment.
Jane Bland
Justice
Panel consists of Justices Keyes, Bland, and Massengale.
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