Opinion
NO. 03-14-00650-CV
04-28-2016
Wesley Spears and Renee Jacobs, Appellants v. Falcon Pointe Community Homeowner's Association, Appellee
FROM THE COUNTY COURT AT LAW NO. 1 OF TRAVIS COUNTY
NO. C-1-CV-13-010214, HONORABLE J. DAVID PHILLIPS, JUDGE PRESIDINGMEMORANDUM OPINION
Homeowners Wesley Spears and Renee Jacobs (the Homeowners) sued their homeowner's association, Falcon Pointe Community Homeowner's Association (HOA), after a dispute arose over the Homeowners' construction of a privacy screen. In four issues on appeal, the Homeowners contend that the trial court erred in granting the HOA's motion for summary judgment and denying the Homeowners' motion for partial summary judgment, that the trial court abused its discretion in refusing to grant the Homeowners' motion for continuance and allow further discovery, and that the trial court erred in denying the Homeowners' motion to recuse the trial judge. We will affirm the trial court's judgment in part and reverse and remand in part.
Spears is a licensed attorney and represented himself and Jacobs in the trial court and in this Court.
BACKGROUND
In their trial-court pleadings, the Homeowners alleged the following facts. The Homeowners installed a lattice attached to the top of a fence in their backyard to provide additional privacy. On July 26, 2013, the HOA sent the Homeowners a violation notice demanding that they remove the lattice before an August 2013 inspection. Upon contacting the HOA to inquire about the violation, the Homeowners were advised by an HOA representative that they were not entitled to a hearing concerning the violation. The Homeowners removed the lattice as requested. The Homeowners then installed a privacy screen that, according to the Homeowners, was built in accordance with specifications given to them by the HOA representative. On October 22, the Homeowners received a second violation notice, which required that they remove the privacy screen and pay a fine of $25, and they later received a third violation notice, which imposed a fine of $50. The HOA held a hearing on November 11 and reaffirmed its decision regarding the Homeowners' privacy screen.
The Homeowners sued the HOA, asserting that they were entitled to recover $1,000 for the materials and labor expended in removing the original lattice. The Homeowners also sought declaratory relief, including declarations that (1) the notices of violation issued by the HOA are defective because they fail to comply with Texas Property Code section 209.006; (2) the subsequent November 2013 hearing was based on the defective notice and was therefore invalid; (3) as a result of the defective notice and hearing, fines may not be imposed; (4) the HOA wrongfully refused to produce records as required by Texas Property Code section 209.005; and (5) the privacy screen constructed by the Homeowners is not in violation of the HOA rules. In addition, the Homeowners alleged that the HOA had violated the Texas Deceptive Trade Practices Act (DTPA) by falsely informing the Homeowners that they were not entitled to a hearing and by failing to include Spears's name on a ballot for an election of neighborhood voting representative.
The Homeowners later filed a motion for partial summary judgment on three of their claims for declaratory relief. Specifically, the Homeowners asserted that the summary-judgment evidence established that the violation notices were defective because they failed to notify the Homeowners of any specific provision of the deed restrictions they were alleged to have violated, that the hearing was invalid because it was based on a defective notice, and that the HOA refused to provide documents in response to lawful requests.
The HOA filed a combined traditional and no-evidence motion for final summary judgment on all of the Homeowners' claims. In the traditional portion of the motion, the HOA argued that the Homeowners' claim for a declaration that the fines were improperly imposed and that the violation notices were defective fails as a matter of law because the Homeowners constructed the fence addition without obtaining the required approval and extended the height of the fence above the maximum allowed height. The HOA further argued that the Homeowners' remaining declaratory-judgment claims failed to present any justiciable controversy. In the no-evidence portion of its motion, the HOA argued that the Homeowners did not and could not produce any evidence of the elements necessary to prevail on their DTPA claims.
The trial court granted the HOA's motion for summary judgment and rendered a final judgment decreeing that the Homeowners' privacy screen was built in violation of the HOA's rules and dismissing the Homeowners' claims with prejudice. The judgment also ordered that the Homeowners take nothing and pay the HOA $23,673.50 for attorney's fees and court costs. On the same day, the trial court denied the Homeowners' motion for partial summary judgment.
After the trial court had signed these orders, the Homeowners filed a series of motions to have the trial judge recused. The regional presiding judge referred the case to a different trial-court judge. Following a hearing, this judge denied the Homeowners' recusal motion. The trial court later denied the Homeowners' motion for new trial, and this appeal followed.
Although the trial court had already signed the final judgment, the issue of recusal was not moot, because the Homeowners had filed a motion for new trial.
DISCUSSION
Motion for Continuance
On the evening before the hearing on the motions for summary judgment, the Homeowners filed a motion for continuance, which they served on the HOA the morning of the hearing. In their motion, the Homeowners stated that they had two motions pending to compel the depositions of two witnesses and that the HOA had refused numerous requests for production of documents. The Homeowners argued that this discovery was necessary before the HOA's motion for summary judgment could be decided. See Tex. R. Civ. P. 166a(i) (trial court must allow adequate time for discovery before granting no-evidence summary judgment).
In their second issue on appeal, the Homeowners contend that the trial court abused its discretion and denied them due process by refusing to hear their motions to compel discovery and their motion for continuance before ruling on the motions for summary judgment. The HOA responds that the Homeowners' motion for continuance was untimely and did not explain why the discovery sought was material or prove that the Homeowners had exercised due diligence. The HOA also contends that the record shows that the Homeowners never set their motions to compel for hearing prior to the summary-judgment hearing.
We will address the Homeowners' issues in a different order than the Homeowners present them.
"When reviewing a trial court's order denying a motion for continuance, we consider whether the trial court committed a clear abuse of discretion on a case-by-case basis." Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004).
To preserve a complaint on appeal concerning the trial court's denial of a motion for continuance, the record must first show that the motion was brought to the trial court's attention. See Tex. R. App. P. 33.1(a)(1). Merely filing a motion with a trial court clerk does not establish that the motion was properly presented to the trial court. See In re Blakeney, 254 S.W.3d 659, 662 (Tex. App.—Texarkana 2008, orig. proceeding); see also Quintana v. CrossFit Dallas, L.L.C, 347 S.W.3d 445, 448-49 (Tex. App.—Dallas 2011, no pet.) (filing motion for continuance and setting motion for hearing was insufficient to bring motion to trial court's attention). In addition, the record must show that (1) the trial court denied the motion, or (2) the trial court refused to rule on the motion and the complaining party objected to the refusal. See Bryant v. Jeter, 341 S.W.3d 447, 450-51 (Tex. App.—Dallas 2011, no pet.) (citations omitted); see also Tex. R. App. P. 33.1(a)(2).
Here, nothing in the record indicates that the Homeowners ever called their motion for continuance to the trial court's attention, obtained a ruling on their motion, or objected to any refusal by the trial court to rule on their motion. Therefore, based on the record before us, we conclude that the Homeowners have waived appellate complaint of this issue. See Gonerway v. Corrections Corp. of Am., 442 S.W.3d 443, 446 (Tex. App.—Dallas 2013, no pet.) (holding appellant failed to preserve complaint concerning trial court's denial of her motion for continuance where "record does not show the trial court ruled on the motion," "record does not show [appellant] called her motion to the attention of the trial court," and "even if the trial court refused to rule on [appellant's] motion, which is not reflected in the record, there is nothing in the record to show [appellant] objected to such a refusal"); Eggert v. State, No. 03-12-00190-CV, 2013 WL 1831614, at *3 (Tex. App.—Austin Apr. 24, 2013, no pet.) (mem. op.) (nonmovant who served discovery in response to summary-judgment motion but did not set hearing or obtain ruling on motion for continuance prior to or at summary-judgment hearing waived complaint that trial court erroneously ruled on summary-judgment motion while discovery was pending). Accordingly, we overrule the Homeowners' second issue.
We note that the record before us does not include a transcript of the summary-judgment hearing.
Similarly, nothing in the record indicates that the Homeowners' motions to compel that were pending at the time of the summary-judgment hearing were ever set to be heard by the trial court or otherwise called to the court's attention. Although the Homeowners blame the trial court's operations officer for their failure to obtain a setting for the motions, the only evidence in the record of the operation officer's actions was presented after the trial court granted summary judgment. We therefore conclude that the Homeowners have waived any complaint they may have about the trial court's failure to rule on their motions to compel.
Summary Judgment
In their first and third issues, the Homeowners contend that the trial court erred in granting the HOA's no-evidence motion for summary judgment on the Homeowners' DTPA claims and traditional motion for summary judgment on their remaining claims and in denying the Homeowners' motion for partial summary judgment.
We review a trial court's ruling on a motion for summary judgment de novo. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 156 (Tex. 2004). Traditional summary judgment is proper only if the movant establishes that there is no genuine issue as to any material fact and that it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c). No-evidence summary judgment is proper "unless the respondent produces summary judgment evidence raising a genuine issue of material fact." Id. R. 166a(i). When, as here, both parties seek summary judgment and the court grants one and denies the other, we render the judgment that the trial court should have rendered. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).
Notice
On appeal, the Homeowners first assert that the trial court erred in granting summary judgment in favor of the HOA on the Homeowners' claim for a declaration that the violation notices were defective. In their motion for summary judgment, the Homeowners argue that the summary-judgment evidence establishes as a matter of law that the second notice of violation failed to comply with section 209.006 of the Texas Property Code because it failed to specify precisely which rule or deed restriction the HOA claimed the Homeowners had violated. Consequently, according to the Homeowners, the HOA was not entitled to conduct a hearing or to levy a fine against them.
Under Texas Property Code section 209.006, before a property owner's association may take enforcement action, including the levying of a fine for a violation of the association's restrictions, bylaws, or rules, the association must give written notice to the owner by certified mail, return receipt requested. Tex. Prop. Code § 209.006. Among other things, the notice must "describe the violation or property damage that is the basis for the suspension, action, charge, or fine and state the amount due the association from the owner." Id. In its second notice of violation, the HOA informed Spears that "the [l]attice work on [the] fence is noncompliant." Assuming without deciding that this notice fails to sufficiently "describe the violation," as required by section 209.006, we nevertheless conclude that the Homeowners have failed to establish, as a matter of law, their claim for declaratory relief.
Although the second and third violation notices that the Homeowners received are in the record before us, the first violation notice is not. Nor does the record contain any evidence that the first violation notice was defective. See City of Hous. v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979) ("Pleadings do not constitute summary judgment proof."); Judah v. EMC Mortg. Corp., No. 03-14-00304-CV, 2015 WL 5096798, at *4 (Tex. App.—Austin Aug. 25, 2015, pet. denied) (mem. op.) ("Mere assertions and arguments by counsel in pleadings are not competent summary-judgment evidence."). The Homeowners have not cited any authority for the proposition that every notice beyond the first must specify which rule was violated, and we are not aware of any. Because the Homeowners have presented no evidence that the first violation was defective, they have failed to conclusively establish that the HOA did not provide them with sufficient notice of their violation. As a result, the trial court did not err in denying the Homeowners' motion for summary judgment on this claim. We next turn to the HOA's motion for summary judgment.
In their brief filed in opposition to the HOA's motion for summary judgment, the Homeowners allege that "Plaintiffs do not have a copy of the [first violation notice] and defendant has refused to provide plaintiffs with a copy of the Notice." However, as explained above, we have concluded that the trial court did not abuse its discretion in ruling on the summary judgment before allowing the Homeowners additional discovery.
In its motion for summary judgment, the HOA does not contend that it sent sufficient notice under section 209.006. Instead, the HOA asserts that the Homeowners constructed the privacy screen without obtaining the required approval and extended the height of the fence above the maximum allowed height. The HOA further argues that the Homeowners' claim for declaratory relief regarding notice is not appropriate, as a matter of law, because it is incapable of settling any actual controversy between the parties. See City of Dall. v. VSC, LLC, 347 S.W.3d 231, 240 (Tex. 2011) (noting that "a declaratory judgment action may lie only where there is a substantial controversy involving genuine conflict of tangible interests") (internal quotation marks omitted). According to the HOA, the only genuine controversy in this case "is whether the [Homeowners'] construction of the privacy [screen] violates the Association rules" and any declaration regarding notice is unrelated to this controversy. However, a declaration that the HOA's notice is insufficient under section 209.006 would necessarily resolve the issue of whether the HOA's assessed fines are proper—an issue that exists independent of whether the privacy screen is in compliance. As a result, we conclude that the trial court erred in granting summary judgment in favor of the HOA on this claim. Accordingly, we sustain the Homeowners' first issue in part.
Access to Records
Next, the Homeowners argue that the trial court erred in granting the HOA's motion for summary judgment and denying their motion for summary judgment on their claim that the HOA violated Texas Property Code section 209.005 by refusing to make the HOA's records available to them.
Section 209.005 provides, in relevant part:
Notwithstanding a provision in a dedicatory instrument, a property owners' association shall make the books and records of the association, including financial records, open to and reasonably available for examination by an owner, or a person designated in a writing signed by the owner as the owner's agent, attorney, or certified public accountant, in accordance with this section. An owner is entitled to obtain from the association copies of information contained in the books and records.Tex. Prop. Code § 209.005(c). The Homeowners contend that the summary-judgment evidence conclusively establishes that the HOA failed to comply with section 209.005 and that therefore they are entitled to declaratory relief on this basis. That is, the Homeowners assert that they are entitled to a declaration that the HOA may not deny them "access to the records of the [HOA] and the [HOA] must keep the records in a manner which makes them reasonabl[y] available" to HOA members.
Upon review of the summary-judgment record, we conclude that the Homeowners' requested declaration concerning section 209.005 does not serve to resolve an independent justiciable controversy between the parties. Instead, the requested declaration concerns a discovery issue presented in the broader context of this litigation. That is, the real controversy between the parties concerned whether the Homeowners' privacy screen violated HOA rules and whether the HOA could lawfully fine the Homeowners for the violation. The Homeowners' requested declaration concerning access to the HOA's records solely in connection with this litigation would not "resolve a substantial controversy involving a genuine conflict of tangible interest." See VCS, 347 S.W.3d at 231. Consequently, the trial court did not err in granting summary judgment in favor of the HOA on this claim.
We express no opinion on whether the Homeowners are entitled to obtain HOA records through discovery on remand. In addition, the HOA moved for summary judgment on the Homeowners' claims for (1) a declaration that the privacy screen in question is not in violation of the "Rules of the Association and/or that the actions of the Board were Arbitrary and Capricious because it was not based on a violation of a rule of the Association" and (2) various declarations that appear to overlap with the Homeowners' DTPA claims. On appeal, the Homeowners do not challenge the trial court's grant of summary judgment on these claims.
DTPA
The Homeowners also challenge the trial court's grant of the HOA's no-evidence motion for summary judgment on their DTPA claims. In their motion for summary judgment, the HOA asserted that the Homeowners did not and could not produce evidence that the HOA could be sued under the DTPA, that the HOA had committed an act proscribed by the DTPA, or that the HOA's conduct was a producing cause of the Homeowners' damages. See Tex. R. Civ. P. 166a(i).
The Homeowners assert that their fifth amended petition is their live pleading. The HOA argues that the Homeowners' fourth amended petition is their live pleading because the fifth amended petition was untimely. The two petitions bring different but overlapping DTPA claims. However, because we conclude that the Homeowners have produced no evidence of any of their DTPA claims raised in either petition, we need not decide which petition is their live pleading.
To recover under the DTPA, a plaintiff must prove the following elements: (1) the plaintiff is a consumer; (2) the defendant can be sued under the DTPA; (3) the defendant committed a false, misleading, or deceptive act or practice that was relied on by the plaintiff to the plaintiff's detriment; and (4) the defendant's action was a producing cause of the plaintiff's damages. See Tex. Bus. & Com. Code §§ 17.41-.63; Amstadt v. United States Brass Corp., 919 S.W.2d 644, 649 (Tex. 1996); see Duran v. JB Goodwin Realtors, No. 03-13-00179-CV, 2014 WL 4414816, at *5 (Tex. App.—Austin Aug. 29, 2014, pet. denied) (mem. op.). In their response to the HOA's motion for summary judgment, the Homeowners do not explain why the HOA is a proper defendant under the DTPA or how the HOA's alleged DTPA violations were a producing cause of any damages. Instead, they make a conclusory allegation that they are DTPA consumers, point to evidence that Spears's name does not appear on an HOA election ballot, and allege that a representative of the HOA misled them into believing that they were not entitled to a hearing on their first violation notice. The Homeowners have not directed our attention to any summary-judgment evidence that raises a fact question concerning each of the elements for any of their DTPA claims, and our review of the record before us has not uncovered any such evidence. See Arredondo v. Rodriguez, 198 S.W.3d 236, 238 (Tex. App.—San Antonio 2006, no pet.) ("In determining whether a summary judgment respondent successfully carried its burden, neither this court nor the trial court is required to wade through a voluminous record to marshal respondent's proof.") (citing Rogers v. Ricane Enters., Inc., 772 S.W.2d 76, 81 (Tex. 1989)). Accordingly, we conclude that the trial court did not err in granting the HOA's no-evidence motion for summary judgment on the Homeowners' DTPA claims.
To the extent the Homeowners argue that the trial court erred by refusing to grant them oral argument concerning their DTPA claims, we note that parties are not entitled to oral hearings on motions for summary judgment. See Long v. Yurrick, 319 S.W.3d 944, 948 (Tex. App.—Austin 2010, no pet.) ("Due process does not require an oral hearing on a motion for summary judgment . . . ."); see also Enriquez v. Livingston, 400 S.W.3d 610, 617 (Tex. App.—Austin 2013, pet. denied) ("Generally, due process does not require an oral hearing on a motion but only an opportunity to respond at a meaningful time and in a meaningful manner."). The Homeowners do not assert, and based on the record before us we cannot conclude, that the Homeowners were deprived of a reasonable opportunity to respond to the HOA's motion.
Recusal
In their fourth issue, the Homeowners challenge the trial court's decision not to recuse Judge Phillips, the trial court judge, from presiding over this case. We review the denial of a motion to recuse for an abuse of discretion. See Tex. R. Civ. P. 18a(j)(1)(A).
After Judge Phillips made his summary-judgment rulings, the Homeowners filed a motion to have him recused. According to the Homeowners' motion, "The Judge has shown clear Bias [sic] in this matter against the plaintiffs' [sic]. The Court has give[n] short shrift to plaintiffs' arguments and has led the plaintiffs to reach the opinion that the Judge is inappropriately Biased [sic] against them." The Homeowners later filed an amended motion to recuse, which was followed by a "Second Supplemental Motion to Recuse Judge," a "Third Supplemental Motion to Recuse Judge," and a "Second Motion to Recuse Judge." Regional Presiding Judge Billy Ray Stubblefield appointed Judge Jon N. Wisser to hear the motion to recuse. Following a hearing, Judge Wisser denied the Homeowners' motion to recuse Judge Phillips.
In their appellate brief, the Homeowners argue that Judge Phillips showed bias by raising his voice, making sarcastic comments, and failing to give proper consideration to their arguments. However, judicial rulings alone almost never constitute a valid basis for showing the trial court's bias or impartiality, and judicial remarks that are critical, disapproving, or even hostile to a party or counsel do not demonstrate bias—nor do expressions of impatience, annoyance, or even anger. See Liteky v. United States, 510 U.S. 540, 555-56 (1994); Dow Chem. Co. v. Francis, 46 S.W.3d 237, 240 (Tex. 2001); Thomas v. Graham Mortg. Corp., 408 S.W.3d 581, 595-96 (Tex. App.—Austin 2013, pet. denied). The Homeowners' allegations of bias arise from comments and rulings Judge Phillips made during pretrial hearings. While Judge Phillips' comments may amount to impatience, they certainly do not rise to the level of bias. Therefore, based on the record before us, we cannot conclude that the trial court abused its discretion in denying the Homeowners' motion to recuse Judge Phillips. Accordingly, we overrule the Homeowners' fourth issue.
For example, the Homeowners point out that at the hearing on their third motion to compel, Judge Phillips asked Spears, "Shakespeare wrote a play about this case, didn't he? I can't remember whether it was 'Comedy of Errors' or 'Much Ado About Nothing.'" We note that, when making this comment, Judge Phillips was expressing frustration that Spears had unilaterally cancelled a deposition he had requested and filed a third motion to compel instead.
CONCLUSION
Having sustained the Homeowners' first issue in part, we reverse the trial court's summary judgment in favor of the HOA on the Homeowners' claim for a declaration that the violation notices issued by the HOA were defective, we reverse the award of attorney's fees and court costs to the HOA, and we remand the case to the trial court for further proceedings consistent with our opinion. We affirm the trial court's judgment in all other respects.
By reversing the trial court's award of attorney's fees and court costs to the HOA, we express no opinion on whether the HOA is still entitled to attorney's fees and court costs given that the HOA remains the prevailing party on most of the Homeowners' claims for declaratory judgment. We simply remand that issue to the trial court for reconsideration in light of our ruling. --------
/s/_________
Scott K. Field, Justice Before Chief Justice Rose, Justices Goodwin and Field Affirmed in Part, Reversed and Remanded in Part Filed: April 28, 2016