Huong Gilmer v. Moore Farm Owners Association, Inc.

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-23-00181-CV
___________________________
HUONG GILMER, Appellant
V.
MOORE FARM OWNERS ASSOCIATION, INC., Appellee
On Appeal from the 431st District Court
Denton County, Texas
Trial Court No. 21-4434-431
Before Sudderth, C.J.; Wallach and Walker, JJ.
Memorandum Opinion by Justice Walker
MEMORANDUM OPINION
This appeal is from a trial court’s order holding pro se appellant Huong Gilmer
in contempt for violating the terms of an agreed judgment. We dismiss the appeal
and deny any alternatively pleaded mandamus relief.
I. BACKGROUND
Appellee Moore Farm Owners Association, Inc. (the Association) sued Gilmer
and David Hoang1 for breach of restrictive covenants that prevented short-term
leasing in a planned-unit development in Carrollton, Texas. Gilmer entered into an
agreed judgment with the Association pursuant to which she was permanently
enjoined from breaching the covenant against short-term leasing.
Eight months after the trial court signed the agreed judgment, the Association
filed a motion for contempt and for sanctions, alleging that Gilmer had violated the
agreed judgment by “offer[ing] and continu[ing] to offer the[] Property for rent on a
daily basis.” In June 2022––after an evidentiary hearing at which the trial court heard
evidence from a police officer who had responded to an incident at the home2 and
from a neighbor familiar with Gilmer who had personally witnessed a large number of
In March 2023, the Association filed a notice of nonsuit of its claims against
1
Hoang; the trial court signed an order granting the nonsuit on May 5, 2023.
2
The person to whom the police officer talked said he was an Airbnb renter
and that he knew the owner, referring to her as a female: “I just know the
owner[;] . . . she’s Asian.”
2
people coming and going from the home3––the trial court granted the contempt
motion, finding that “Gilmer violated the Agreed Judgment by offering the Unit for
rent on a daily basis and leasing the Unit for a term of less than thirty (30) days or for
transient purposes.” The trial court ordered Gilmer to pay the Association $27,969.34
in reasonable and necessary attorney’s fees and expenses and a fine of $500. Gilmer
appealed.4
II. APPEAL DISMISSED AND MANDAMUS RELIEF DENIED
Gilmer makes several complaints in her appeal: (1) the Association did not
personally serve her with the contempt motion;5 (2) she was denied her right to
procedural due process because the trial court should have treated the contempt
proceeding as seeking criminal rather than civil contempt and because the
Association’s attorney had used her silence against her;6 and (3) the Association did
3
The neighbor testified that Gilmer had nine people staying in the home two
days before the contempt hearing.
4
The Association filed a second contempt and enforcement motion in
July 2023, alleging that Gilmer had committed additional violations of the agreed
judgment after June 3, 2022. An August 2023 docket entry indicates that the trial
court denied this motion.
5
The Association filed a supplemental clerk’s record with an Affidavit of
Service, proving that Gilmer was personally served with the contempt motion, show-
cause order, and notice of hearing on the motion.
6
Gilmer was represented by counsel at the contempt hearing and did not testify.
Gilmer’s counsel did not object when the Association’s attorney argued during
closing:
3
not prove that she personally violated the agreed judgment’s terms. Although Gilmer
does not challenge the imposition of the fine or the attorney’s-fees award with any
argument or authority, she asks that this court order the Association “to return all
sums paid to them by [her] for fines [of] $500.00 and attorney fees of $27,969.34.”7
The Association contends that we have no jurisdiction to review the trial
court’s contempt order by direct appeal and that even if we construe the appeal as a
petition for writ of mandamus, Gilmer is not entitled to relief because the evidence
supports the trial court’s finding that she violated the agreed judgment and because
Gilmer did not preserve her other complaints for review. We agree.
Contempt orders are not appealable even when appealed along with an
appealable judgment and even when they contain attorney’s fees as sanctions. In re
J.R.-H., No. 02-23-00019-CV, 2023 WL 2429797, at *1 (Tex. App.—Fort Worth
Today was her day to sit on the stand. If they want to take all these
credibility issues and say our evidence isn’t credible, she didn’t take the
stand. They rested. She’s sitting on her hands, you know. This is her
chance to say in court I didn’t do this, I didn’t do this, I didn’t do this.
7
The trial court admitted the Association’s lode-star attorney’s-fees evidence
without objection. Gilmer’s attorney stated that although the exhibits appeared to be
“reasonably accurate,” he argued that the hourly rate was too high. The Association’s
counsel testified about his education and experience, his areas of practice and
specialty, the attorneys’ and paralegal’s hourly rates, and his opinion that the fees
reflected in the invoices and exhibits were reasonable, necessary, and customary “for
the nature of this matter in the State of Texas, including Denton County, Texas.” He
also testified that because he has a high-volume “HOA” practice, the hourly rates
were “lower than they otherwise would be.”
4
Mar. 9, 2023, pet. denied) (per curiam) (mem. op.). Thus, we have no jurisdiction
over Gilmer’s appeal from the trial court’s contempt order.
Even if we were to construe Gilmer’s appeal as a mandamus proceeding,8 we
would deny relief. See id. (noting that contempt orders that do not involve
confinement may be reviewed only via mandamus); see also Tex. R. App. P. 52.8(a).
III. CONCLUSION
We dismiss the appeal and deny any alternatively pleaded mandamus relief.
/s/ Brian Walker
Brian Walker
Justice
Delivered: December 28, 2023
8
Cf. CMH Homes v. Perez, 340 S.W.3d 444, 452 (Tex. 2011) (construing
impermissible interlocutory appeal as mandamus proceeding upon appellant’s request
and remanding to court of appeals for consideration as such).
5