Trent Walton v. Midland Mira Vista Homeowners' Association A/K/A Mira Vista Homeowners' Association ( 2014 )

Opinion filed September 18, 2014
In The
Eleventh Court of Appeals
___________
No. 11-12-00214-CV
___________
TRENT WALTON, Appellant
V.
MIDLAND MIRA VISTA HOMEOWNERS’ ASSOCIATION
A/K/A MIRA VISTA HOMEOWNERS’ ASSOCIATION, Appellee
On Appeal from the 142nd District Court
Midland County, Texas
Trial Court Cause No. CV-46,913
MEMORANDUM OPINION
Trent Walton appeals the trial court’s order denying his plea to the
jurisdiction, the trial court’s order denying in part his motion for partial summary
judgment, and the trial court’s order granting in part the motion for summary
judgment of Midland Mira Vista Homeowners’ Association a/k/a Mira Vista
Homeowners’ Association. We affirm.
I. Background Facts
This appeal involves the interpretation of provisions in the “Declaration of
Restrictions and Covenants for Mira Vista Subdivision” (the Declaration). The
subdivision is a residential subdivision that consists of thirteen lots in Midland.
The real property in the subdivision is subject to the Declaration.
This case arose out of disputes between Walton, who is a homeowner in the
subdivision, and Midland Mira Vista Homeowners’ Association (the HOA), which
is a nonprofit corporation. In 2008 and 2009, the HOA levied Maintenance
Assessments and Special Assessments against the lots in the subdivision. After
Walton failed to pay some of the assessments, the HOA brought suit against him.
The HOA alleged in its petition that Walton had failed to pay assessments that he
owed on two lots in the subdivision. The HOA sought to recover the amount
allegedly owed by Walton and its attorney’s fees. The HOA also sought a
declaratory judgment that Walton would be liable for assessments on Lot One A
(1A) and Lot Two A (2A), Mira Vista, Section 2, in the subdivision for as long as
he owned the lots.
Walton answered the HOA’s suit and also sought declaratory relief. Walton
sought a declaratory judgment that the HOA was not the corporation that was
authorized under the Declaration to levy assessments and that, therefore, the HOA
did not have authority to levy assessments against the lot owners; that Walton
owned only one lot in the subdivision that was subject to the Declaration because
the two lots he had purchased had been replatted into one lot; and that the
Declaration limited the amount of Maintenance Assessments that could be levied
against a single lot to $500 per year. Walton also filed a plea to the jurisdiction. In
the plea, Walton asserted that the HOA lacked standing to bring suit against him
based on his contention that the HOA was not the proper party under the
Declaration to levy assessments.
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The HOA filed a traditional motion for summary judgment. In its motion,
the HOA sought a declaratory judgment to the effect (1) that it was authorized
under the Declaration to levy Maintenance Assessments and Special Assessments,
(2) that it had authority to levy assessments against Walton’s lots, (3) that Walton’s
property constituted two lots under the Declaration, and (4) that Walton had failed
to pay assessments that he owed under the Declaration. The HOA asserted that
Walton owed $5,705.36 in past due assessments, and it sought judgment for that
amount. The HOA also moved for summary judgment on its claim for attorney’s
fees. Walton filed a competing traditional motion for partial summary judgment in
which he moved for summary judgment on his claims for declaratory relief.
The trial court heard Walton’s plea to the jurisdiction and the parties’
competing motions for summary judgment. Following the hearing, the trial court
concluded that the HOA had standing to maintain the suit; therefore, the trial court
entered an order denying Walton’s plea to the jurisdiction. The trial court also
entered separate orders on the competing motions for summary judgment. The
trial court granted Walton’s motion in part and denied the remainder of the motion.
The trial court entered the following orders as to Walton’s motion:
IT IS ORDERED, ADJUDGED AND DECREED that as to
[Walton’s] issue regarding the authority of [the HOA] to exercise the
powers and authority vested in “Mira Vista Homeowners’
Association” under the Declaration, [Walton’s] Motion for Partial
Summary Judgment is denied.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED
that as to [Walton’s] issue that [the HOA] may not levy assessments
in excess of $500 per lot per year, [Walton’s] Motion for Partial
Summary Judgment is granted as it relates to the Maintenance
Assessments for 2008 and 2009 and the Special Assessment for 2008
which were levied by [the HOA], but [Walton’s] Motion for Partial
Summary Judgment is denied as it relates to the Special Assessments
for 2009 which were levied by [the HOA].
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IT IS FURTHER ORDERED, ADJUDGED AND DECREED
that as to [Walton’s] issue that [Walton] owns only one (1) lot in the
Mira Vista Subdivision, [Walton’s] Motion for Partial Summary
Judgment is denied and [Walton’s] property, consisting of two (2)
lots, may be levied with an assessment (Maintenance, Special or
Individual, as applicable) for each lot.
IT IS ORDERED, ADJUDGED, AND DECREED that as to
[Walton’s] issues not specifically mentioned or granted herein,
[Walton’s] Motion for Partial Summary Judgment is denied.
The trial court granted in part the HOA’s motion for summary judgment.
The trial court entered the following orders, among others, as to the HOA’s
motion:
IT IS ORDERED, ADJUDGED, AND DECREED that as to
[the HOA’s] issue that [the HOA] is a proper non-profit corporation
authorized under the Declaration to levy Maintenance and Special
Assessments, [the HOA’s] Motion for Summary Judgment is granted.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED
that as to [the HOA’s] issue that [the HOA] had the authority to levy
assessments against [Walton’s] lots, [the HOA’s] Motion for
Summary Judgment is granted.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED
that as to [the HOA’s] issue that [Walton’s] property constitutes two
lots under the Declaration, [the HOA’s] Motion for Summary
Judgment is granted.
The trial court awarded the HOA damages for past due assessments in the
amount of $4,233.16. This amount represented Maintenance Assessments for 2008
in the amount of $1,000 ($500 per lot for two lots), Maintenance Assessments for
2009 in the amount of $1,000 ($500 per lot for two lots), and Special Assessments
for 2009 in the amount of $2,233.16. The 2009 Special Assessments consisted of
landscaping for $1,552.14 ($776.07 per lot for two lots), irrigation repair for
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$161.02 ($80.51 per lot for two lots), and tree pruning for $520 ($260 per lot for
two lots). The trial court also awarded the HOA its attorney’s fees in the sum of
$3,000 through the proceedings in the trial court and conditional appellate
attorney’s fees.
The trial court also ordered that the HOA’s motion for summary judgment
was denied as to all of the HOA’s issues that were not specifically mentioned or
granted in the order. As stated above, the HOA sought to recover assessments
totaling $5,705.36. The trial court awarded $4,233.16 of this amount. The trial
court did not include $1,472.20 of the requested amount in its award. The
$1,472.20 amount consisted of additional 2008 and 2009 Maintenance
Assessments, a 2008 Special Assessment for sprinkler system repairs, and a 2009
Special Assessment for legal fees.
II. Analysis
Walton presents four issues for review. In his first issue, Walton asserts that
the HOA was not a proper homeowners’ association for the subdivision because
the HOA was not created as a homeowners’ association in accordance with the
Declaration. Based on this assertion, Walton contends that the trial court erred by
entering a declaratory judgment that the HOA was authorized under the
Declaration to levy assessments. In his second issue, Walton contends that the
HOA lacked standing to bring suit against him for unpaid assessments because it
did not have the authority to levy the assessments. Therefore, Walton asserts that
the trial court erred by denying his plea to the jurisdiction. In his third issue,
Walton contends that the trial court erred by entering a declaratory judgment that
his property constitutes two lots, and not a single lot, under the Declaration, for the
purpose of levying assessments. In his fourth issue, Walton contends that the trial
court erred by granting summary judgment that he owed any Special Assessments
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because the Special Assessments in question were not approved in the manner
required by the Declaration.
A. Standard of Review
Standing is a component of subject-matter jurisdiction, and we review the
issue of standing de novo. Tex. Dep’t of Transp. v. City of Sunset Valley, 146
S.W.3d 637, 646 (Tex. 2004). Standing exists if the party bringing the suit is
personally aggrieved by the alleged wrong. Nootsie, Ltd. v. Williamson Cnty.
Appraisal Dist., 925 S.W.2d 659, 661 (Tex. 1996). In reviewing the standing
issue, we construe the petition in favor of the HOA and review the entire record to
determine whether any evidence supports standing. Tex. Ass’n of Bus. v. Tex. Air
Control Bd., 852 S.W.2d 440, 446 (Tex. 1993).
We review a summary judgment de novo. Travelers Ins. Co. v. Joachim,
315 S.W.3d 860, 862 (Tex. 2010). The movant for traditional summary judgment
must show that there is no genuine issue of material fact and that it is entitled to
judgment as a matter of law. TEX. R. CIV. P. 166a(c); Mann Frankfort Stein &
Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). When
competing motions for summary judgment are filed and one is granted and the
other denied, the reviewing court must review the summary judgment evidence
presented by both sides, determine all questions presented, and render such
judgment as the trial court should have rendered. Comm’rs Court of Titus Cnty. v.
Agan, 940 S.W.2d 77, 81 (Tex. 1997).
B. Interpretation of Declaration
We must construe the Declaration according to the general rules that apply
to the construction of contracts. Pilarcik v. Emmons, 966 S.W.2d 474, 478 (Tex.
1998); Epernay Cmty. Ass’n, Inc. v. Shaar, 349 S.W.3d 738, 742 (Tex. App.—
Houston [14th Dist.] 2011, no pet.). In construing a contract, our primary
objective is to ascertain and give effect to the true intentions of the parties as
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expressed in the contract. Italian Cowboy Partners, Ltd. v. Prudential Ins. Co. of
Am., 341 S.W.3d 323, 333 (Tex. 2011); Kelley-Coppedge, Inc. v. Highlands Ins.
Co., 980 S.W.2d 462, 464 (Tex. 1998). In identifying such intent, we must
examine and consider the entire writing in an effort to harmonize and give effect to
all the provisions of the contract so that no provision will be rendered meaningless.
Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983). If the written agreement is so
worded that it can be assigned a certain or definite legal meaning or interpretation,
it is not ambiguous, and a court will construe the agreement as a matter of law. Id.
In this case, neither party asserts that the Declaration is ambiguous, and we
conclude that the Declaration can be assigned a certain definite legal meaning and
that it is not, therefore, ambiguous.
1. The Declaration
The record shows that G.W. Allen and Gina Lucchi Allen were the
developers of the subdivision. They executed the Declaration for the subdivision
in 1997. The Allens stated in the Declaration that they were making “the following
declarations as to the limitations, restrictions and uses that may be placed on all
and/or any portion of the property comprising the Subdivision.” In the Declara-
tion, the Allens specified that “these declarations shall constitute covenants to run
with all of said land as provided by law, shall be binding upon the undersigned and
all persons claiming under them, and shall be for the benefit of and shall constitute
limitations upon all future owners and other parties or persons claiming any
interest therein.”
2. Definitions in Declaration
Article I of the Declaration is a definitions section. It contains numerous
pertinent definitions:
(1) “Developer” shall mean and refer to G.W. Allen and Gina
Lucchi Allen, their heirs, personal representatives, and assigns, who
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are the persons or entities responsible for the platting and
development of the Subdivision.
(2) “Plat” shall mean and refer to any recorded plat or replat of
the Subdivision, as filed in the Plat Records of Midland County,
Texas.
(3) “Lot(s)” shall mean and refer to any numbered tract or
parcel of land shown by the Subdivision’s Plat and upon which
residential single family homes and appurtenances may be built.
(4) “Lot Owner” shall mean and refer to the record owner,
whether one or more persons, firms or corporations, of the fee simple
title to the surface of any Lot within the Subdivision. . . .
(5) “Common Areas” shall mean and refer to those areas
designated as Common Areas A, B, and C on attached Exhibit A
which are reserved for the common use, enjoyment and mutual benefit
of the Lot Owners, their guests and invitees.
....
(7) “Mira Vista Homeowners’ Association” hereinafter
sometimes referred to as the “Association,” shall mean and refer to a
non-profit incorporated association of all Lot Owners. Each Lot
Owner shall be a member of the Mira Vista Homeowners’
Association. The principal purpose of the Association is to maintain
and provide common community facilities and services for the
Common Areas for the common use and enjoyment of all Lot Owners,
their guests and invitees.
3. Creation of Homeowners’ Association
Article II of the Declaration is titled “MIRA VISTA HOMEOWNERS’
ASSOCIATION.” Section 2.01 of the Declaration provides as follows:
Section 2.01 Formation and Purpose. Developer shall create
a non-profit corporation under the laws of the State of Texas, to be
known as the “Mira Vista Homeowners’ Association” that shall have
the power and obligation of perpetually managing, maintaining,
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repairing, replacing, improving and insuring the Common Areas. In
exercising this authority and performing these obligations, the
Association shall collect assessments, make disbursements of
proceeds, and take appropriate disciplinary action concerning
delinquent accounts as hereinafter provided in this Declaration.
Section 2.02 provides that “[e]ach Lot Owner shall automatically become a
member of the Association.”
4. Common Areas
Article VI of the Declaration relates to the Common Areas of the
subdivision. Section 6.01 provides that “[t]he Common Areas are reserved for the
common private use, recreation, enjoyment, mutual benefit and open space uses of
all Lot Owners and residents, their guests and invitees, for recreation and open
space uses.” Under Section 6.01, “[t]he Common Areas include, but are not
limited to, landscaped areas, irrigation, lighting, signage, sidewalks, screening, and
fencing devices.” Section 6.02 provides that “Developer shall retain title to the
Common Areas until (a) Developer shall have sold at least seventy-five percent
(75%) of the Lots to third parties (other than by transfer in bulk) or
(b) December 31, 2002, whichever shall occur earlier,” and that, “[u]pon the earlier
of these two events, Developer shall convey free of charge the fee simple title to
the surface estate in the Common Areas to the Association.” Section 6.02 also
provides that, during the time that the Developer retains title to the Common
Areas, “the Association shall be responsible for the maintenance and upkeep of the
Common Areas at all times following the recordation of this Declaration.”
5. Assessments
Article VII of the Declaration, relates to assessments. Article VII provides
in relevant part as follows:
Section 7.01. Covenant and Lien for Assessments.
Developer, for each Lot owned by it, and each Lot Owner, by
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acceptance of a deed, shall be deemed to and does hereby covenant
and agree, to pay to the Association: (a) regular assessments or
charges (the “Maintenance Assessment”), (b) special assessment[s]
for capital improvements or unusual or emergency matters (the
“Special Assessment”), and (c) individual special assessments (the
“Individual Assessment”) as hereinafter provided in this Article. . . .
Section 7.02 Purpose of Assessments. The assessments levied
by the Association shall be used exclusively for the purpose of
promoting the recreation, health, safety and welfare of the residents of
the Lots and, in particular, for the improvement and maintenance of
the Common Areas and related facilities devoted to this purpose,
including, but not limited to, the maintenance, upkeep, repair,
replacement, and improvement thereof and the payment of all taxes
and insurance attributable thereto.
Section 7.03 relates to Maintenance Assessments. It provides that “the
Association shall establish and declare an annual Maintenance Assessment upon
each Lot in the Subdivision.” Section 7.03 further provides that the “Maintenance
Assessment shall be $500.00 per lot per year.”
Section 7.04 relates to Special Assessments. It provides that “[t]he
Association may levy and charge in any calendar year a Special Assessment,
applicable to that year only, for the purpose of defraying, in whole or in part, the
cost of any construction, reconstruction, repair, or replacement of a capital
improvement upon the Common Areas.” Section 7.04 further provides that “[a]ny
such Special Assessment shall have the assent of not less than two-thirds (2/3) of
the votes of the Lot Owners who are voting in person or by proxy at a meeting of
the Association duly called for this purpose.”
C. Authority to Levy Assessments under the Declaration
Walton asserts in his first and second issues that the HOA did not have the
authority under the Declaration to levy assessments against the homeowners in the
subdivision. In his brief, Walton states that “[t]he clear and unambiguous language
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of the Declaration vests homeowner-association authority in a nonprofit
corporation to be created by Developers, G.W. Allen and Gina Lucchi Allen and
called ‘Mira Vista Homeowners’ Association,’ not a nonprofit corporation created
by [a] lot owner [and] called ‘Midland Mira Vista Homeowners’ Association’”
(emphasis added). Walton contends that, because the HOA was not the
homeowners’ association that was actually named in the Declaration, the HOA is a
“stranger” to the Declaration and is not entitled to levy assessments against him.
We disagree.
The Declaration required the Allens, as the “Developer,” to create a
nonprofit corporation “to be known as the ‘Mira Vista Homeowners’
Association.’” Under the Declaration, the Allens, as the “Developer,” were
obligated to convey “fee simple title to the surface estate of the Common Areas to
the Association” by December 31, 2002, at the latest. The provisions of the
Declaration show that the Allens, as the Developer, intended to create a
homeowners’ association that would consist of all the lot owners and that would
operate for the mutual benefit of the lot owners and for the other purposes
expressed in the Declaration.
The HOA filed the affidavit of Scott Dufford in support of its motion for
summary judgment. Dufford owned a lot in the Mira Vista Subdivision. Dufford
testified in his affidavit that he was the president of the “Midland Mira Vista
Homeowners’ Association,” a nonprofit corporation that was incorporated in
February 2008. Dufford explained how the HOA came into existence. He said
that, in late 2007, he learned that the Allens had not formed the homeowners’
association called for in the Declaration. Dufford said that he and other lot owners
in the subdivision undertook an effort to establish a homeowners’ association.
Dufford contacted an attorney for help in the process of setting up the
homeowners’ association. The attorney confirmed that a homeowners’ association
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had not been formed. With the attorney’s assistance, Dufford and the other lot
owners attempted to use the name “Mira Vista Homeowners’ Association” for the
nonprofit corporation. However, they learned from the Secretary of State’s office
that the name “Mira Vista Homeowners’ Association” was not available.
Therefore, the lot owners named the association the “Midland Mira Vista
Homeowners’ Association,” and they began operating the HOA in the early part of
2008.
After the HOA was incorporated, the Allens executed a warranty deed in
which they, as the Developer, conveyed title to the Common Areas of the
subdivision to the HOA. The Allens stated in the warranty deed that “[t]he
Grantee, herein, is the ‘Association’ as that term is defined in the Restrictions.”
Dufford stated in his affidavit that he requested his attorney to send G.W. Allen, as
the Developer, an invoice for the legal work performed in connection with forming
the HOA and transferring title to the Common Areas from the Developer to the
HOA. G.W. Allen paid the invoice at the HOA’s request. The HOA filed an
assumed name certificate that indicated it would be conducting business under the
assumed name, “Mira Vista Homeowners’ Association.”
The Declaration defines “Mira Vista Homeowners’ Association” to mean “a
non-profit incorporated association of all Lot Owners.” Section 2.01 of the
Declaration obligated the Developer to create a nonprofit corporation “to be known
as the ‘Mira Vista Homeowners’ Association’” (emphasis added). The language in
the Declaration does not show that the Developer intended to limit itself to the use
of “Mira Vista Homeowners’ Association” for the name of the nonprofit
incorporated homeowners’ association. The use of the phrase “to be known as”
does not show that the Developer intended to impose a requirement that the
homeowners’ association be named “Mira Vista Homeowners’ Association” or
nothing else. The Developer did not include language in the Declaration to the
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effect that the homeowners’ association “shall be named,” “must be named,” “must
be called,” or “must be incorporated using the name” the “Mira Vista
Homeowners’ Association.”
If a homeowners’ association did not come into existence, the Developer’s
intentions as expressed in the Declaration would be frustrated, and many
provisions in the Declaration would be rendered meaningless. For example, the
Declaration provided that the homeowners’ association would have the power and
obligation to maintain and improve the common areas in the subdivision. Thus,
the creation of a homeowners’ association was necessary to effectuate the
Developer’s intent. The HOA is a nonprofit incorporated association of the lot
owners in the subdivision. Considering the Declaration in its entirety and the
intentions of the Developer as expressed therein, we conclude that the Declaration
did not require the homeowners’ association to be named the “Mira Vista
Homeowners’ Association.”
Walton also contends that the HOA is not a proper homeowners’ association
under the Declaration because it was not created by the Developer. As Walton
states in his brief, the Developer was required under the Declaration to create the
homeowners’ association. In this regard, the summary judgment evidence showed
that the Developer did not initially fulfill its obligation. However, the Developer
executed the Declaration for the benefit of all the lot owners. Dufford and other lot
owners undertook the Developer’s obligation when they created the HOA. By
creating the HOA, the lot owners merely effectuated the Developer’s intent. As
noted previously, the Developer conveyed title to the common areas to the HOA
after it was incorporated. The Developer expressly stated in the deed that “[t]he
[HOA] is the ‘Association’ as that term is defined in the Restrictions.”
Furthermore, the Developer paid for the expenses related to the formation of the
HOA and for the conveyance of the common areas to the HOA. Accordingly, the
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Developer’s actions show that it agreed with the creation of the HOA as the
homeowners’ association for this subdivision.
Walton states in his brief that a fundamental question of law in this case is
“whether or not [the HOA] may step into and enforce contractual rights vested in
the name of a different nonprofit corporation.” However, this appeal does not
involve that question. The Declaration could not vest any rights in “Mira Vista
Homeowners’ Association” as the governing homeowners’ association for this
subdivision because it did not exist when the Declaration became effective.
Walton also cites Gillebaard v. Bayview Acres Ass’n, 263 S.W.3d 342 (Tex.
App.—Houston [1st Dist.] 2007, pet. denied), in support of his contentions. In that
case, the deed restrictions for a subdivision did not provide for the creation of a
property owners’ association. Gillebaard, 263 S.W.3d at 344–45. The court held
that a property owners’ association could not conduct activities on behalf of the
homeowners unless the restrictions were first amended to allow for the creation of
an association. Id. at 350. Gillebaard is distinguishable from this case. Unlike the
restrictions in Gillebaard, the Declaration in this case expressly provided for the
creation of a homeowners’ association for the subdivision.
The summary judgment evidence established that the HOA was a proper
homeowners’ association under the Declaration and that, as such, it had the
authority to levy assessments against lots in the subdivision. Because the HOA is
the authorized homeowners’ association for the subdivision, the HOA has standing
to maintain a suit for unpaid assessments. Therefore, the trial court did not err by
granting summary judgment that the HOA is authorized under the Declaration to
levy assessments and by denying Walton’s plea to the jurisdiction. Walton’s first
and second issues are overruled.
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D. Walton’s Property in the Subdivision
In his third issue, Walton contends that the trial court erred by entering
summary judgment that his property in the subdivision constitutes two lots, and not
a single lot, under the Declaration. The summary judgment evidence showed that
Walton purchased two lots in the subdivision. Walton presented as summary
judgment evidence copies of the deeds that he received when he acquired the lots.
One of the deeds showed that, on May 26, 2006, Walton acquired “Lot Two A
(2A), Block One (1), Mira Vista, Section 2, . . . according to the map or plat
thereof of record in Cabinet F, Page 149, Plat Records, Midland County, Texas.”
The other deed showed that, on June 7, 2007, Walton acquired “Lot One A (1A),
Block One (1), Mira Vista, Section 2, . . . according to the map or plat thereof of
record in Plat Cabinet F, Page 149, Plat Records of Midland County, Texas.” Both
of Walton’s lots were subject to the Declaration. Under Section 7.01 of the
Declaration, Walton, by acceptance of the deeds to the lots, agreed to pay
assessments to the homeowners’ association with respect to his lots.
In October 2007, Walton filed an application with the City of Midland to
replat his two lots—Lots 1A and 2A—into a single lot. The City approved his
request, and the lots were replatted as a single lot known as “Lot 1B, Mira Vista,
Section 3.” The replat was recorded in the Plat Records of Midland County.
Based on the City’s replat of the lots, Walton asserts that he is responsible to pay
assessments for only one lot under the Declaration.
The HOA asserts that a lot owner, such as Walton, cannot avoid the
obligation under the Declaration to pay assessments on multiple lots by unilaterally
replatting the lots into a single lot. We agree. The definition of “Developer” in the
Declaration provides that the “Developer” and its heirs, personal representatives,
and assigns “are the persons or entities responsible for the platting and
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development of the Subdivision.” Thus, the intent of the Developer was that it,
and not the individual lot owners, could seek to replat property in the subdivision.
In Article VII, the parties contemplated that the lot owners would share in the
payment of assessments on a “per lot” basis. If a lot owner could avoid his or her
payment of assessments on a lot by unilaterally replatting two lots into one lot, the
purpose of Article VII would be frustrated. Considering the intent of the parties as
expressed in the Declaration, we conclude that Walton could not avoid his
obligation to pay assessments on two lots by having his lots replatted into one lot.
Walton’s third issue is overruled.
E. Special Assessments for 2009
The HOA sought to recover Special Assessments that it had levied in 2008
and 2009. The trial court granted summary judgment to Walton on the HOA’s
claim for the 2008 Special Assessments. The trial court granted summary
judgment to the HOA for past due Special Assessments in the amount of $2,233.16
for 2009. The HOA also sought to recover $177.98 per lot in legal fees that it had
levied as a special assessment in 2009. The trial court did not include this amount
in its award of Special Assessments to the HOA.
Walton contends in his fourth issue that the trial court erred by granting
summary judgment that he owed $2,233.16 in Special Assessments for 2009.
Under Section 7.04, Special Assessments may be levied “for the purpose of
defraying, in whole or in part, the cost of any construction, reconstruction, repair,
or replacement of a capital improvement upon the Common Areas.” Section 7.04
provides that “[a]ny such Special Assessment shall have the assent of not less than
two-thirds (2/3) of the votes of the Lot Owners who are voting in person or by
proxy at a meeting of the Association duly called for this purpose.”
Walton asserts that the 2009 Special Assessments were improper because
they were not approved at a meeting as required by the Declaration. The summary
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judgment evidence showed that the HOA levied the 2009 Special Assessments
before it called a meeting of its lot owners in an effort to attain their assent to the
special assessments. However, the HOA presented evidence that it called a special
meeting of all of its members, who were lot owners in the subdivision, to be held
on December 31, 2009, and that one of the items that would be considered and
voted on at the meeting would be to “Approve Special Assessments for the year
2009.” The HOA held the meeting on December 31, 2009. The minutes of the
special meeting show that the lot owners voted to approve the Special Assessments
for 2009, with Walton abstaining from the vote. Thus, the summary judgment
evidence showed that, as required by Section 7.04 of the Declaration, the lot
owners assented to the HOA’s action in levying the Special Assessments for 2009.
Based on the summary judgment evidence, we conclude that the trial court did not
err by granting summary judgment to the HOA that Walton owed it past-due
Special Assessments in the amount of $2,233.16. Walton’s fourth issue is
overruled.
III. This Court’s Ruling
We affirm the orders of the trial court.
JOHN M. BAILEY
JUSTICE
September 18, 2014
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
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