Theresa Hall v. Green Ridge Townhouse Homeowners Association, Inc.

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-21-00035-CV
THERESA HALL, Appellant
V.
GREEN RIDGE TOWNHOUSE HOMEOWNERS ASSOCIATION, INC., Appellee
On Appeal from the 269th District Court
Harris County, Texas
Trial Court No. 2020-03094-A
Before Morriss, C.J., Burgess and Stevens, JJ.
Opinion by Justice Stevens
OPINION
Theresa Hall sued Green Ridge Townhouse Homeowners Association, Inc. (Green
Ridge), as a result of its foreclosure on property located at 15304 Chipman Lane in Houston (the
Property) and Hall’s unsuccessful attempt to redeem it.1 Green Ridge filed a traditional motion
for partial summary judgment, which was granted by the trial court.2 On appeal, Hall questions
whether the trial court erred in granting Green Ridge’s motion. We affirm the trial court’s
judgment.
I. Factual and Procedural Background
On September 3, 2019, Green Ridge foreclosed on the Property for non-payment of
maintenance fees. “On September 10, 2019, Green Ridge’s attorney . . . sent a letter to the
[Property owner,] Veyonka Pouncy, advising [Pouncy3] that the Property had been sold at a
constable’s foreclosure sale and that Houstonian Investment Group[, LLC, (Houstonian)] had
purchased it.” The letter advised Pouncy that she had ninety days from the date of the letter in
which to redeem the Property, explained that information regarding the amount owed to Green
Ridge could be obtained from its attorney, and further explained that Pouncy would also be
required to pay Houstonian the purchase price to redeem the Property.
1
Originally appealed to the First Court of Appeals in Houston, this case was transferred to this Court by the Texas
Supreme Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001. We follow the
precedent of the First Court of Appeals in deciding this case. See TEX. R. APP. P. 41.3.
2
Hall also sued Houstonian Investment Group, LLC, in the same lawsuit. After the trial court granted Green Ridge’s
traditional motion for partial summary judgment, the trial court entered an order granting Green Ridge’s unopposed
motion for severance.
3
Hall is the attorney in fact for her niece, Pouncy.
2
In a November 18, 2019, conversation with Hall, Green Ridge General Manager
Rosalinda Carrizales told Hall that the amount owed to Green Ridge was $5,392.00. Carrizales
also told Hall that she should contact Green Ridge’s attorney for complete information regarding
redemption because she also needed to make redemption arrangements with Houstonian.
On November 22, 2019, Hall delivered a cashier’s check to Carrizales in the amount of
$5,392.00. After speaking with Green Ridge’s attorney, Carrizales contacted Hall on
November 26, 2019, and told her that Green Ridge could not accept the check and that she
needed to pick it up. Carrizales also advised Hall that Green Ridge would give her its check for
the surplus funds received from the sale of the Property and explained to Hall that she needed to
arrange to redeem the Property from Houstonian. Carrizales did not hear back from Hall, and
Hall never returned to pick up the checks.
On December 19, 2019, Hall’s attorney sent a letter to Green Ridge requesting a
“reinstatement quote” and stating that the correct redemption period was 180 days rather than 90
days. The following month, Hall filed suit against Green Ridge and Houstonian alleging
entitlement to a declaratory judgment that the statutory redemption period was 180 days and that
she had properly redeemed the Property. Hall further alleged a cause of action for quiet title and
trespass to try title, together with claims of promissory estoppel, negligent misrepresentation,
common-law fraud, and intentional interference with a contractual relationship. Hall sought
actual and exemplary damages, attorney fees, and an application for a temporary restraining
order.
3
On February 26, 2020, Houstonian advised Hall that the redemption amount was
$29,346.39. The following month, Green Ridge returned Hall’s cashier’s check in the amount of
$5,392.00 and also included a check in the amount of $19,072.00 for the excess proceeds from
the sale of the Property. On April 1, 2020, Hall’s counsel advised Houstonian that Hall was
ready to get everything paid. In reply, Houstonian indicated that the 180-day redemption period
had expired.
Green Ridge thereafter filed its traditional motion for partial summary judgment on all of
Hall’s claims alleging (1) that, as a matter of law, Hall was not entitled to a declaration that
(a) the redemption period was 180 days, (b) she had tendered the redemption payment within the
redemption period, (c) she had substantially complied with the requirements of Section 209.011
of the Texas Property Code, and (d) Green Ridge’s failure to provide an exact amount to redeem
the Property violated Section 209.011 of the Texas Property Code; (2) that, as a matter of law, it
was not a proper defendant in a quiet title action or an action in trespass to try title because title
to the Property was in Houstonian, not Green Ridge; (3) that, as a matter of law, it could not be
liable on Hall’s promissory estoppel claim because it made no promise to Hall, it proved the
defense of impossibility, and the law does not allow for a recovery beyond what Hall already
received; (4) that it disproved two essential elements of Hall’s negligent misrepresentation claim;
(5) that it disproved an essential element of Hall’s fraud claim; and (6) that Hall’s cause of action
for intentional interference with a contractual relationship did not state a claim against Green
Ridge. Hall did not file a response to Green Ridge’s motion for summary judgment.
4
The trial court concluded that Green Ridge’s motion was meritorious and granted
judgment in its favor on Hall’s claims for “declaratory judgment, suit to quiet title/trespass to try
title, promissory estoppel, negligent misrepresentation, common-law fraud, and interference with
a contractual relationship.” This appeal ensued.
II. Standard of Review
“We review the trial court’s summary judgment de novo.” Triton 88, L.P. v. Star
Electricity, L.L.C., 411 S.W.3d 42, 55 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (citing
Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005)). “The movant must
establish that no material fact issue exists and that it is entitled to judgment as a matter of law.”
Id. (citing M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000)
(per curiam)). “In reviewing the summary judgment, we must indulge every reasonable
inference in favor of the non-movant and resolve any doubts in [her] favor.” Grace v. Titanium
Electrode Prods., Inc., 227 S.W.3d 293, 297 (Tex. App.—Houston [1st Dist.] 2007, no pet.)
(citing Rizkallah v. Conner, 952 S.W.2d 580, 582 (Tex. App.—Houston [1st Dist.] 1997, no
pet.)). “We consider all grounds on which the trial court ruled that are preserved for review and
that are necessary for disposition of the appeal . . . .” Id. (citing Cincinnati Life Ins. Co. v. Cates,
927 S.W.2d 623, 626 (Tex. 1996)). “Because a motion for summary judgment must stand on its
own merits, the nonmovant may argue on appeal that the movant’s summary judgment proof is
insufficient as a matter of law, even if the nonmovant filed no response to the motion.” Id.(citing Willrich, 28 S.W.3d at 23; Rizkallah, 952 S.W.2d at 582–83).
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III. Lack of Preservation and Waiver
Hall asserts, as her sole point of error, that the trial court erred in granting Green Ridge’s
traditional motion for partial summary judgment.4 Hall then argues that, (1) because a
declaratory judgment is a remedy and not a cause of action, she waived her right to argue this
issue; (2) she presented adequate evidence in her first amended petition to prove each and every
element of her cause of action for promissory estoppel; (3) she presented adequate evidence in
her first amended petition to prove each and every element of her cause of action for negligent
misrepresentation; and (4) she presented adequate evidence in her first amended petition to prove
each and every element of her cause of action for common-law fraud.
Attached to Hall’s brief is a document entitled “Plaintiff’s Response to Defendant Green
Ridge Townhouse Association Inc.’s Motion For Partial Summary Judgment.” That document is
not file marked and is not included in the clerk’s record on appeal. Green Ridge represented, in
its brief, that no such response was filed in the trial court. The clerk of the trial court has
confirmed that no such response was filed in the trial court. “The attachment of documents as
exhibits or appendices to briefs is not formal inclusion in the record on appeal, and, therefore, the
documents cannot be considered.” Tex. Windstorm Ins. Ass’n v. Jones, 512 S.W.3d 545, 552
(Tex. App.—Houston [1st Dist.] 2016, no pet.) (quoting Till v. Thomas, 10 S.W.3d 730, 734
(Tex. App.—Houston [1st Dist.] 1999, no pet.)). “Evidence that is not contained in the appellate
4
Hall’s broad issue questioning whether the trial court erred by rendering summary judgment in favor of Green
Ridge is authorized by Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970). This general point of error
“authorizes the party against whom judgment was rendered to challenge all possible grounds on which the trial court
might have relied in rendering judgment.” McCoy v. Rogers, 240 S.W.3d 267, 272 (Tex. App.—Houston [1st Dist.]
2007, pet. denied). Our sister court has held that, even so, “[t]he challenging party must also . . . present those
arguments and supporting authority in order to merit reversal.” Id.6
record is not properly before this Court.” Id. (citing TEX. R. APP. P. 34.1); see Holland v. Mem’l
Hermann Health Sys., No. 01-14-00283-CV, 2015 WL 7455328, at *3 (Tex. App.—Houston [1st
Dist.] Nov. 24, 2015, no pet.) (mem. op.) (“[A]n appellate court cannot, in deciding an issue,
consider documents attached to a brief; it must consider the case based solely on the record
filed.”) (citing Samara v. Samara, 52 S.W.3d 455, 456 n.1, 458–59 (Tex. App.—Houston [1st
Dist.] 2001, pet. denied)). Because the document purporting to be Hall’s response to Green
Ridge’s motion for partial summary judgment is not a part of the appellate record filed with this
Court, we may not consider it.
As a consequence of Hall’s failure to respond to Green Ridge’s motion for partial
summary judgment, she is limited on appeal to arguing the legal sufficiency of the grounds
presented by the movant.5 See B. Gregg Price, P.C. v. Series 1 – Virage Masper, LP, No. 01-20-
00474-CV, 2021 WL 3204753, at *4 (Tex. App.—Houston [1st Dist.] July 29, 2021, no pet.)
(mem. op.) (citing McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 343 (Tex. 1993));
Rizkallah, 952 S.W.2d at 582–83 (lack of response by nonmovant “does not supply by default
the summary judgment proof necessary to establish the movant’s right to summary judgment”
but nonmovant “is limited on appeal to arguing the legal sufficiency of the grounds presented by
movant”) (citing McConnell, 858 S.W.2d at 343 (Tex. 1993)). Yet, Hall’s brief does not attack
the sufficiency of the proof supporting the summary judgment. That is, Hall does not contend
5
Because Hall did not respond to the motion for summary judgment, we do not address the issue of whether Hall’s
complaints as set forth in her brief comply with Rule 38.1(e) of the Texas Rules of Appellate Procedure. See TEX.
R. APP. P. 38.1(i) (“brief must contain a clear and concise argument for the contentions made, with appropriate
citations to authorities and to the record”). Likewise, these issues were not before the trial court. 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.”).
7
that Green Ridge did not conclusively establish its claims. As a result, that issue has been
waived on appeal. See Bernstein v. Adams, No. 01-12-00703-CV, 2013 WL 4680396, at *2
(Tex. App.—Houston [1st Dist.] Aug. 29, 2013, no pet.) (mem. op.) (failure to attack sufficiency
of proof supporting summary judgment on appeal results in waiver of that issue). For these
reasons, we find that Hall’s brief presents nothing for our review.
IV. Conclusion
We affirm the trial court’s judgment.
Scott E. Stevens
Justice
Date Submitted: August 25, 2021
Date Decided: October 29, 2021
8