Ramesh Kapur D/B/A AIC Management Company v. Fondren Southwest Tempos Association ( 2013 )

Opinion issued October 15, 2013.
In The
Court of Appeals
For The
First District of Texas
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NO. 01-13-00138-CV
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RAMESH KAPUR D/B/A AIC MANAGEMENT COMPANY, APPELLANT
V.
FONDREN SOUTHWEST TEMPOS ASSOCIATION, APPELLEE
On Appeal from the 151st District Court
Harris County, Texas
Trial Court Cause No. 2010-13051
MEMORANDUM OPINION
Fondren Southwest Tempos Association sued Ramesh Kapur (d/b/a AIC
Management Company) for unpaid maintenance assessments and violating various
deed restrictions in the Fondren Southwest Tempos townhouse complex. The trial
court granted the Association’s motion for summary judgment. Kapur appeals,
contending that (1) the Association failed to conclusively prove each of its claims
and (2) the Association failed to address Kapur’s counterclaims in its motion for
summary judgment. We conclude that the trial court properly granted summary
judgment on the claim for unpaid maintenance fees, but it erred in granting a final
summary judgment, because the Association’s motion did not address Kapur’s
counterclaims. We therefore affirm in part and reverse and remand in part.
Background
The Association is the homeowners’ association for the townhouse complex.
In 2001, Kapur purchased a townhome in the complex. In early 2007, the
Association notified Kapur that he had violated various deed restrictions. The
Association complained that Kapur had installed an unapproved skylight and
completed other modifications to a closet and bedroom on the second floor of the
townhouse. It also complained that an excessive number of tenants lived in the
townhouse. Kapur responded that the previous owner had installed the skylight
and other modifications, and further, that the Association’s refusal to approve the
lease of the current tenants was unreasonable. Kapur stopped paying the monthly
maintenance assessments he was required to pay as the owner of the townhome.
The Association then sued Kapur for violating its deed restrictions and
failing to pay the maintenance assessments. The trial court subsequently granted
the Association’s motion for summary judgment and entered a default judgment.
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In April 2009, the Association agreed to forbear execution on the judgment
if Kapur brought the townhouse into compliance with the deed restrictions and
paid the overdue maintenance assessments. Kapur made some, but not all, of the
maintenance payments. In March 2010, Kapur filed a bill of review, attacking the
default judgment against him. The trial court granted the bill and reinstated the
case.
In October 2011, Harris County foreclosed on Kapur’s townhouse pursuant
to a property tax lien; it later sold the townhouse at an auction. Kapur, appearing
pro se, filed counterclaims and affirmative defenses in the reinstated case, asserting
that the Association had interfered with his use and enjoyment of the townhouse
and had failed to abide by the Association’s bylaws in refusing to approve his
tenants, resulting in loss of rental income. The Association answered the
counterclaims and filed special exceptions, which the trial court denied. The
Association again moved for summary judgment. The trial court granted the
motion, labeling it a final summary judgment that disposed of all claims and all
parties. It awarded the Association $6,290.65 for unpaid maintenance assessments
and late fees and $2,097.42 in statutory damages pursuant to Texas Property Code
section 202.004(c), which permits the trial court to assess damages of up to $200
for each day a party violates a restrictive covenant. See TEX. PROP. CODE ANN.
§ 202.004(c).
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Discussion
I. Summary Judgment Analysis
Standard of Review
We review de novo the trial court’s ruling on a motion for summary
judgment. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d
844, 848 (Tex. 2009). In a traditional motion for summary judgment, the movant
must establish that no genuine issue of material fact exists and the movant is thus
entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); KPMG Peat
Marwick v. Harrison Cnty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999).
When reviewing a summary judgment, we take as true all evidence favorable to the
nonmovant and indulge every reasonable inference in the nonmovant’s favor.
Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident
Life & Accid. Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003).
Traditional summary judgment is proper only if the movant establishes that
there is no genuine issue of material fact and that the movant is entitled to
judgment as a matter of law. TEX. R. CIV. P. 166a(c). The motion must state the
specific grounds relied upon for summary judgment. Id. A plaintiff moving for a
traditional summary judgment must conclusively prove all essential elements of its
claim. See Rhone–Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999).
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When, as here, “a trial court’s order granting summary judgment does not
specify the grounds relied upon, [we] affirm the summary judgment if any of the
summary judgment grounds are meritorious.” FM Props. Operating Co. v. City of
Austin, 22 S.W.3d 868, 872–73 (Tex. 2000). If the appellant fails to negate every
possible ground upon which the judgment may have been granted, an appellate
court must uphold the summary judgment. See Star-Telegram, Inc. v. Doe, 915
S.W.2d 471, 473 (Tex. 1995); Ellis v. Precision Engine Rebuilders, Inc., 68
S.W.3d 894, 898 (Tex. App.—Houston [1st Dist.] 2002, no pet.).
Conclusory statements in an affidavit unsupported by facts are insufficient to
support or defeat summary judgment. Wadewitz v. Montgomery, 951 S.W.2d 464,
466 (Tex. 1997). A conclusory statement is one that does not provide the
underlying facts to support the conclusion and cannot be readily controverted.
Anderson v. Snider, 808 S.W.2d 54, 55 (Tex. 1991); Rizkallah v. Conner, 952
S.W.2d 580, 587 (Tex. App.—Houston [1st Dist.] 1997, no writ); see also Earle v.
Ratliff, 998 S.W.2d 882, 890 (Tex. 1999) (holding that witness’s affidavit is
conclusory if it fails to explain basis of witness’s statements to link his conclusions
to facts).
Analysis
Kapur contends that the Association failed to produce evidence of the
amount or validity of the maintenance assessments that it sought to recover. Deed
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restrictions and restrictive covenants are interpreted and enforced according to the
same general rules applicable to any contract. Pilarcik v. Emmons, 966 S.W.2d
474, 478 (Tex. 1998); Bank United v. Greenway Improvement Ass’n, 6 S.W.3d
705, 707 (Tex. App.—Houston [1st Dist.] 1999, pet. denied). Deed restrictions
subjecting property to maintenance fees, liens securing a maintenance fee, and
providing a method for amending restrictions are to be liberally construed, giving
effect to the intent and purposes of the restrictions. TEX. PROP. CODE ANN.
§ 202.003; Boudreaux Civic Ass’n v. Cox, 882 S.W.2d 543, 547 (Tex. App.—
Houston [1st Dist.] 1994, no writ).
Kapur does not contest that he purchased the townhouse in 2001 and owned
it until October 2011. Nor does he contest that by purchasing the townhouse in the
Complex, he agreed to comply with its declaration of covenants. The declaration
of covenants provides that townhouse owners in the Complex must pay
maintenance assessments in monthly installments. The amount of the assessment
is set by the Association’s board of directors each year. The declaration of
covenants provides that the owner of a townhouse in the Complex is personally
liable for the assessment at the time each assessment is due and grants the
Association the right to sue to recover unpaid maintenance assessments.
The Association attached to its summary judgment motion the affidavit of its
property manager, who collects maintenance assessments as approved and imposed
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by the Association’s board of directors. In it, the property manager avers that
Kapur owed the Association $6,290.65 in unpaid maintenance assessments and late
fees before Harris County foreclosed on the townhouse. She provides an
accounting of the maintenance assessments, and details the amounts Kapur paid
each month from January 2006 to October 2011. She avers that the amounts
charged are correct and that all Kapur’s payments were credited in the accounting.
Kapur contends that he raised a fact issue about the amount and validity of
the assessments. The only evidence Kapur produced regarding maintenance
assessments was in his affidavit, in which he averred: “I dispute the amount of
dues and assessments alleged by Plaintiff. Not all offsets and credits have been
given.” Kapur provides no particular facts on which he bases this conclusion. See
Anderson, 808 S.W.2d at 55; CA Partners v. Spears, 274 S.W.3d 51, 63 (Tex.
App.—Houston [14th Dist.] 2008, pet. denied). He does not offer any facts that
challenge the validity of the assessments, nor does he explain the offsets and
credits to which he claims to be entitled. See Earle, 998 S.W.2d at 890.
Kapur further contends that the Association failed to show that its board of
directors had approved the amounts assessed or that it gave Kapur proper notice of
the charges and increases in the amounts assessed. However, Kapur did not
contest the manager’s authority in the trial court, and he presented no evidence in
support of his argument that the association lacked authority to assess the amounts
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owed, nor that he had not received proper notice. As he did not adduce evidence to
raise a fact issue on these matters, Kapur’s argument cannot result in reversal. See
Anderson, 808 S.W.2d at 55.
Because the affidavit lacks any factual specificity contesting the validity of
the amount of the unpaid assessments, Kapur fails to raise a fact issue. See
Wadewitz, 951 S.W.2d at 466. Accordingly, the trial court properly granted
summary judgment in favor of the Association on its claim for $6,290.65 in unpaid
maintenance assessments.
II. Counterclaims and Statutory Damages
Kapur next contends that the trial court erred in granting a final summary
judgment that purported to reject his counterclaims, because the Association did
not address them in its motion for summary judgment. “It is well settled that a trial
court cannot grant a summary-judgment motion on grounds not presented in the
motion.” Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009) (citing Sci.
Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 912 (Tex. 1997)). If a summary
judgment is intended to be final and purports to dispose of causes of action not
addressed in the summary judgment motion, the summary judgment is reversible.
See Lehmann v. Har–Con Corp., 39 S.W.3d 191, 202 (Tex. 2001); Young v.
Hodde, 682 S.W.2d 236, 237 (Tex. 1984). The trial court cannot grant more relief
than was requested by a motion for summary judgment. See Sci. Spectrum, 941
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S.W.2d at 912; Richards v. Transocean, Inc., 333 S.W.3d 326, 331 (Tex. App.—
Houston [1st Dist.] 2010, no pet.).
Kapur asserted a counterclaim that the Association had violated its own deed
restrictions and bylaws. The Association conceded that it did not address Kapur’s
counterclaims. The Association responds instead that Kapur had failed to pay a
filing fee for the pleading in which he included his counterclaims and affirmative
defenses. But this challenge was neither raised nor proved in the trial court. A
party need not pay a filing fee for the trial court to exercise jurisdiction over the
claims. See Tanner v. Axelrad, 680 S.W.2d 851, 853 (Tex. App.—Houston [1st
Dist.] 1984, writ dism’d); Nolte v. Flournoy, 348 S.W.3d 262, 268 (Tex. App.—
Texarkana 2011, pet. denied). The Association answered Kapur’s counterclaims
and responded with its special exceptions, which the trial court denied, thus
exercising jurisdiction over the claims. See Nolte, 348 S.W.3d at 268.
Accordingly, the trial court erred in granting more relief than requested. See
Gish, 286 S.W.3d at 310. The trial court’s award of statutory damages is based on
Kapur’s breach of the deed restrictions. Because the parties made competing
claims for breach of the restrictive covenants and because the resolution of rulings
on Kapur’s counterclaims could affect the resolution of the Association’s
restrictive covenant claims, we reverse that portion of the judgment and remand the
case for further proceedings.
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Conclusion
We hold that the trial court properly granted summary judgment on the
Association’s claim for unpaid maintenance assessments, but it granted more relief
than requested, leaving some claims unresolved. We therefore affirm the judgment
awarding the unpaid maintenance assessments, and reverse and remand the
remainder for further proceedings.
Jane Bland
Justice
Panel consists of Chief Justice Radack and Justices Bland and Huddle.
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