Opinion issued March 27, 2025
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-23-00220-CV ——————————— CELESTINE IJEOMA JOHNSON AND COLLINS B. JOHNSON, Appellants V. PARKWAY LAKES VILLAGE HOMEOWNERS ASSOCIATION, INC., Appellee
On Appeal from the 434th District Court Fort Bend County, Texas Trial Court Case No. 18-DCV-256276
MEMORANDUM OPINION
This appeal arises from a suit brought by Parkway Lakes Village Homeowners
Association to foreclose on a lien on a home within the homeowners’ association’s
residential subdivision. The trial court granted summary judgment in favor of the homeowners’ association, authorizing sale of the home by a sheriff or constable so
that the association could recover unpaid assessments, late fees, and attorney’s fees
incurred in bringing this foreclosure suit.
The homeowners, Celestine Ijeoma Johnson and Collins B. Johnson, appeal
from the trial court’s summary judgment. They argue that there is a genuine issue of
material fact as to their defenses of fraud, estoppel, and unclean hands.
Under well-settled precedent, however, the Johnsons waived their defensive
issues by failing to comply with the summary-judgment rule’s deadline for
responding and filing evidence. In addition, even if they had timely filed their
response and evidence, we hold they did not create a genuine issue of material fact
with respect to any of these defenses.
We therefore affirm the trial court’s judgment.
BACKGROUND
The homeowners’ association alleged the Johnsons were delinquent in the
payment of annual assessments for their home and also owed late-payment fees.
Under the publicly filed declaration of covenants, conditions, and restrictions for
properties within the residential subdivision, the homeowners’ association had a lien
on the Johnsons’ home as a result. The homeowners’ association sought to foreclose
on the lien and recover its attorney’s fees.
2 The homeowners’ association moved for summary judgment. In support, the
homeowners’ association filed the affidavit of its property manager and several
supporting documents, such as the property deed; the association’s declaration of
covenants, conditions, and restrictions; an itemization of the unpaid annual
assessments and late fees from 2013 through 2023; and the billing records of the
attorneys the association hired to pursue payment of the assessments and fees.
The homeowners’ association set its summary-judgment motion for hearing
in early February 2023. The Johnsons did not file any response in the time period
prescribed by the rules to respond. Instead, three days before the hearing—after the
response deadline had lapsed—the Johnsons responded.
In their response, the Johnsons raised numerous defenses. They argued that
the homeowners’ association had released the lien on their home in February 2021.
They also disputed the validity of assessments imposed by the association. Finally,
the Johnsons argued that the homeowners’ association failed to credit some
payments they made from 2018 onward, and that the association turned away their
attempts to make partial payments, insisting on payment in full. With that late
response, the Johnsons submitted documents as well. These included a February
2021 e-mail from the attorney for the homeowners’ association indicating “all debt”
would be released with respect to Johnsons personally and the lien had “been
3 released/updated to reflect this fact” as well as an October 2020 order discharging
their debts in a federal bankruptcy proceeding.
In March 2023, the trial court rendered a final summary judgment in favor of
the homeowners’ association. Among other things, the judgment authorized the sale
of the home, from which proceeds the association would be paid, subject to the rights
of superior lienholders, with any surplus proceeds being paid to the Johnsons.
The Johnsons appeal.
DISCUSSION
On appeal, the Johnsons contend the homeowners’ association obtained the
judgment through fraud. Specifically, they maintain that the association had already
released its lien and is now estopped from claiming otherwise. In addition, the
Johnsons maintain that the association misrepresented the amounts they owe.
Moreover, the Johnsons assert that the association has unclean hands, which
precludes the entry of a judgment in its favor. Finally, they contend they were not
allowed to call the association’s property manager as a witness at the summary-
judgment hearing, and were thereby denied the chance to show she lacks personal
knowledge about the facts stated in her summary-judgment affidavit.
The homeowners’ association responds that the Johnsons waived these
arguments, including by not timely responding to its summary-judgment motion.
They also maintain that they are correct on the merits.
4 Summary Judgment and Waiver
Standard of Review
We review summary judgments de novo. Weekly Homes v. Paniagua, 691
S.W.3d 911, 915 (Tex. 2024). When, as here, the facts material to waiver are
undisputed or clearly established, waiver presents a question of law that we also
review de novo. LaLonde v. Gosnell, 593 S.W.3d 212, 220 (Tex. 2019).
Traditional Summary Judgment Motions and Responses
The law is well settled on summary-judgment requirements and waiver. To
start, the movant must file and serve a motion for summary judgment and any
supporting evidence at least 21 days before it sets the motion for hearing. TEX. R.
CIV. P. 166a(c). In response, absent leave of court, the adverse parties must file and
serve their response and any opposing evidence no later than 7 days before the
hearing. Id. The hearing is not evidentiary in nature; no testimony may be given at
the hearing. Id.; MSW Corpus Christi Landfill v. Gulley-Hurst, L.L.C., 664 S.W.3d
102, 108 (Tex. 2023) (evidence parties rely on to support their summary-judgment
positions must be attached to summary-judgment motion or response).
As the Texas Supreme Court has instructed, in light of the plain language of
the summary-judgment rule, we presume the trial court did not consider an untimely
filed summary-judgment response unless the record affirmatively indicates that it
did. B.C. v. Steak N Shake Operations, 598 S.W.3d 256, 259 (Tex. 2020).
5 Affirmative indications of consideration may arise from a separate order addressing
the response, a recital in the summary-judgment order, or an oral ruling contained in
the reporter’s record of the summary-judgment hearing. Id. at 259–60.
The law is equally well settled that, when the record does not affirmatively
indicate the trial court considered an untimely filed summary-judgment response,
this Court does not consider the response or any attached evidence in its review of
the summary judgment. E.g., Benchmark Bank v. Crowder, 919 S.W.2d 657, 663
(Tex. 1996) (affidavit filed two days before summary-judgment hearing was not part
of summary-judgment record); Speck v. First Evangelical Lutheran Church of
Houston, 235 S.W.3d 811, 815–16 (Tex. App.—Houston [1st Dist.] 2007, no pet.)
(affidavits filed six days before summary-judgment hearing were not part of
summary-judgment evidence).
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Opinion issued March 27, 2025
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-23-00220-CV ——————————— CELESTINE IJEOMA JOHNSON AND COLLINS B. JOHNSON, Appellants V. PARKWAY LAKES VILLAGE HOMEOWNERS ASSOCIATION, INC., Appellee
On Appeal from the 434th District Court Fort Bend County, Texas Trial Court Case No. 18-DCV-256276
MEMORANDUM OPINION
This appeal arises from a suit brought by Parkway Lakes Village Homeowners
Association to foreclose on a lien on a home within the homeowners’ association’s
residential subdivision. The trial court granted summary judgment in favor of the homeowners’ association, authorizing sale of the home by a sheriff or constable so
that the association could recover unpaid assessments, late fees, and attorney’s fees
incurred in bringing this foreclosure suit.
The homeowners, Celestine Ijeoma Johnson and Collins B. Johnson, appeal
from the trial court’s summary judgment. They argue that there is a genuine issue of
material fact as to their defenses of fraud, estoppel, and unclean hands.
Under well-settled precedent, however, the Johnsons waived their defensive
issues by failing to comply with the summary-judgment rule’s deadline for
responding and filing evidence. In addition, even if they had timely filed their
response and evidence, we hold they did not create a genuine issue of material fact
with respect to any of these defenses.
We therefore affirm the trial court’s judgment.
BACKGROUND
The homeowners’ association alleged the Johnsons were delinquent in the
payment of annual assessments for their home and also owed late-payment fees.
Under the publicly filed declaration of covenants, conditions, and restrictions for
properties within the residential subdivision, the homeowners’ association had a lien
on the Johnsons’ home as a result. The homeowners’ association sought to foreclose
on the lien and recover its attorney’s fees.
2 The homeowners’ association moved for summary judgment. In support, the
homeowners’ association filed the affidavit of its property manager and several
supporting documents, such as the property deed; the association’s declaration of
covenants, conditions, and restrictions; an itemization of the unpaid annual
assessments and late fees from 2013 through 2023; and the billing records of the
attorneys the association hired to pursue payment of the assessments and fees.
The homeowners’ association set its summary-judgment motion for hearing
in early February 2023. The Johnsons did not file any response in the time period
prescribed by the rules to respond. Instead, three days before the hearing—after the
response deadline had lapsed—the Johnsons responded.
In their response, the Johnsons raised numerous defenses. They argued that
the homeowners’ association had released the lien on their home in February 2021.
They also disputed the validity of assessments imposed by the association. Finally,
the Johnsons argued that the homeowners’ association failed to credit some
payments they made from 2018 onward, and that the association turned away their
attempts to make partial payments, insisting on payment in full. With that late
response, the Johnsons submitted documents as well. These included a February
2021 e-mail from the attorney for the homeowners’ association indicating “all debt”
would be released with respect to Johnsons personally and the lien had “been
3 released/updated to reflect this fact” as well as an October 2020 order discharging
their debts in a federal bankruptcy proceeding.
In March 2023, the trial court rendered a final summary judgment in favor of
the homeowners’ association. Among other things, the judgment authorized the sale
of the home, from which proceeds the association would be paid, subject to the rights
of superior lienholders, with any surplus proceeds being paid to the Johnsons.
The Johnsons appeal.
DISCUSSION
On appeal, the Johnsons contend the homeowners’ association obtained the
judgment through fraud. Specifically, they maintain that the association had already
released its lien and is now estopped from claiming otherwise. In addition, the
Johnsons maintain that the association misrepresented the amounts they owe.
Moreover, the Johnsons assert that the association has unclean hands, which
precludes the entry of a judgment in its favor. Finally, they contend they were not
allowed to call the association’s property manager as a witness at the summary-
judgment hearing, and were thereby denied the chance to show she lacks personal
knowledge about the facts stated in her summary-judgment affidavit.
The homeowners’ association responds that the Johnsons waived these
arguments, including by not timely responding to its summary-judgment motion.
They also maintain that they are correct on the merits.
4 Summary Judgment and Waiver
Standard of Review
We review summary judgments de novo. Weekly Homes v. Paniagua, 691
S.W.3d 911, 915 (Tex. 2024). When, as here, the facts material to waiver are
undisputed or clearly established, waiver presents a question of law that we also
review de novo. LaLonde v. Gosnell, 593 S.W.3d 212, 220 (Tex. 2019).
Traditional Summary Judgment Motions and Responses
The law is well settled on summary-judgment requirements and waiver. To
start, the movant must file and serve a motion for summary judgment and any
supporting evidence at least 21 days before it sets the motion for hearing. TEX. R.
CIV. P. 166a(c). In response, absent leave of court, the adverse parties must file and
serve their response and any opposing evidence no later than 7 days before the
hearing. Id. The hearing is not evidentiary in nature; no testimony may be given at
the hearing. Id.; MSW Corpus Christi Landfill v. Gulley-Hurst, L.L.C., 664 S.W.3d
102, 108 (Tex. 2023) (evidence parties rely on to support their summary-judgment
positions must be attached to summary-judgment motion or response).
As the Texas Supreme Court has instructed, in light of the plain language of
the summary-judgment rule, we presume the trial court did not consider an untimely
filed summary-judgment response unless the record affirmatively indicates that it
did. B.C. v. Steak N Shake Operations, 598 S.W.3d 256, 259 (Tex. 2020).
5 Affirmative indications of consideration may arise from a separate order addressing
the response, a recital in the summary-judgment order, or an oral ruling contained in
the reporter’s record of the summary-judgment hearing. Id. at 259–60.
The law is equally well settled that, when the record does not affirmatively
indicate the trial court considered an untimely filed summary-judgment response,
this Court does not consider the response or any attached evidence in its review of
the summary judgment. E.g., Benchmark Bank v. Crowder, 919 S.W.2d 657, 663
(Tex. 1996) (affidavit filed two days before summary-judgment hearing was not part
of summary-judgment record); Speck v. First Evangelical Lutheran Church of
Houston, 235 S.W.3d 811, 815–16 (Tex. App.—Houston [1st Dist.] 2007, no pet.)
(affidavits filed six days before summary-judgment hearing were not part of
summary-judgment evidence).
Beyond one exception that does not apply here,1 issues not raised in a timely
response are waived unless the trial court grants leave to file an untimely response
or otherwise indicates it considered an untimely response. See TEX. R. CIV. P.
1 The exception is that an appellant may always assert that the summary-judgment movant did not conclusively establish its right to judgment as a matter of law. See Waddy v. City of Houston, 834 S.W.2d 97, 101 (Tex. App.—Houston [1st Dist.] 1992, writ denied) (appellant may only challenge legal sufficiency of summary- judgment evidence if it did not file response). This is so because a nonmovant need not respond unless the movant carries its summary-judgment burden of proof. Energen Res. Corp. v. Wallace, 642 S.W.3d 502, 509 (Tex. 2022). A trial court cannot grant traditional summary judgment by default in the absence of a response. Wheeler v. Green, 157 S.W.3d 439, 442 (Tex. 2005).
6 166a(c) (issues not expressly presented to trial court in motion or response cannot
serve as a basis for reversal on appeal); Perez v. Williams, 474 S.W.3d 408, 416
(Tex. App.—Houston [1st Dist.] 2015, no pet.) (appellate court would not consider
late-filed summary-judgment response on appeal because record lacked affirmative
indication that trial court had considered it); Waddy v. City of Houston, 834 S.W.2d
97, 101 (Tex. App.—Houston [1st Dist.] 1992, writ denied) (appellate court cannot
consider late-filed summary-judgment response on appeal when record gives rise to
presumption that trial court did not consider response in ruling on motion).
Affirmative defenses must be timely raised in the trial court or they are
waived. MAN Engines & Components v. Shows, 434 S.W.3d 132, 136 (Tex. 2014).
Analysis
The Johnsons Waived Their Defensive Issues
In their summary-judgment response, the Johnsons asserted defensive issues,
including fraud, release, estoppel, unclean hands, and partial payment. See TEX. R.
CIV. P. 94 (“fraud,” “release,” “estoppel,” “payment” and “any other matter
constituting an avoidance” are affirmative defenses). They did not challenge the
legal sufficiency of the evidence relied on by the homeowners’ association.
It is undisputed that the Johnsons did not submit evidence in opposition to the
homeowners’ motion for summary judgment at least seven days before the
summary-judgment hearing. See TEX. R. CIV. P. 166a(c). Nor did they seek leave to
7 file a response after the deadline or move for a continuance of the hearing. See TEX.
R. CIV. P. 166a(g) (authorizing continuance to permit evidence to be obtained);
Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 687–88 (Tex. 2002)
(nonmovant may obtain leave to file untimely response by showing failure to timely
respond was due to accident or mistake and that late response would not result in
undue delay or otherwise harm summary-judgment movant).
The record likewise does not contain an affirmative indication that the trial
court considered the untimely summary-judgment response or evidence filed by the
Johnsons. Because the Johnsons did not seek leave to respond or submit evidence
after the deadline, there is not any order addressing this issue. The Johnsons did not
request a reporter’s record in this appeal; therefore, we cannot examine the
summary-judgment hearing for an affirmative indication of consideration.
Finally, the summary-judgment order does not contain a recital indicating that
the trial court considered the response or its attached evidence. Instead, the order
only recites that there was a hearing, at which both sides presented argument.
Such a barebones recital is not enough to indicate consideration of the
response or its attached evidence. Caselaw instructs that a recital in a summary-
judgment order that does not refer to the consideration of the papers on file, much
less to a response in particular, cannot be construed as an affirmative indication that
an untimely response was considered. Perez, 474 S.W.3d at 416 (summary-judgment
8 order stating trial court considered motion and evidence was not affirmative
indication that court also considered late response). Similarly, a recital that the trial
court heard argument at the hearing is not an affirmative indication that the trial court
considered an untimely response or evidence. See Reyes v. Mukerji Law Firm, No.
01-22-00430-CV, 2024 WL 371102, at *3 (Tex. App.—Houston [1st Dist.] Feb. 1,
2024, no pet.) (order reciting trial court considered motion, response, and argument
did not affirmatively indicate that trial court considered late-filed reply or attached
evidence).
Thus, under Texas law, the Johnsons waived the defensive issues that they
tried to raise via their untimely summary-judgment response and its attached
evidence. And because the Johnsons have not challenged the legal sufficiency of the
summary-judgment evidence filed by the homeowners’ association, this issue is not
before us. See Pike v. Tex. EMC Mgmt., 610 S.W.3d 763, 782 (Tex. 2020) (court of
appeals cannot reverse judgment based on issue not raised by appellant). As a result,
the Johnsons’ waiver of their defensive issues disposes of this appeal.
The Johnsons’ Pro Se Status Does Not Negate Waiver
As they did in the trial court, the Johnsons, who are not lawyers, represent
themselves on appeal. While we acknowledge the obstacles that laypeople face in
prosecuting or defending lawsuits—and we construe their filings liberally—they are
not exempt from procedural rules.
9 In general, Texas courts evaluate filings made by nonlawyers with liberality
and patience. Goldstein v. Sabatino, 690 S.W.3d 287, 295 (Tex. 2024). Our liberality
and patience extends to the application of procedural rules, including waiver due to
the failure to comply with procedural rules, when the application of the rule turns on
the litigant’s state of mind. See id. at 295–96 (holding pro se litigant’s failure to file
written special appearance did not result in waiver of personal jurisdiction where,
consistent with rule’s plain language requiring special appearance to be filed before
any other pleadings or motions, litigant had not yet made any other filings when he
appeared at hearing held by Zoom and raised issue at first opportunity); see also Li
v. Pemberton Park Cmty. Ass’n, 631 S.W.3d 701, 704–06 (Tex. 2021) (pro se
litigant’s response to summary-judgment motion as well as her own cross-motion
for summary judgment were entitled to liberal construction in terms of whether she
made particular argument and thus preserved error as to this issue).
But laypeople who represent themselves in court must comply with
procedural rules, as there cannot be two sets of rules, one for litigants represented
by lawyers and another for those who represent themselves. Li, 631 S.W.3d at 705–
06; accord Goldstein, 690 S.W.3dat 295 (reiterating that there is only one set of
procedural rules for all litigants in Texas courts). Consequently, when nonlawyers
fail to satisfy procedural requirements, their failure to do so may result in waiver.
E.g., Burbage v. Burbage, 447 S.W.3d 249, 256–58 (Tex. 2014) (pro se litigant
10 failed to preserve error as to jury charge because his objection in the trial court did
not adequately apprise court of the nature of the complaint in light of the complaint
raised on appeal); see also Goldstein, 690 S.W.3d at 295 (explaining that when
deciding if pro se litigant waived issue, “the specific facts and circumstances” of the
case at hand “are crucial for our analysis”).
Here, the Johnsons failed to comply with a deadline requiring a summary-
judgment response to be filed “not later than seven days prior to the day of hearing.”
TEX. R. CIV. P. 166a(c). The summary-judgment rule expresses this requirement in
plain and understandable language. The Johnsons did not explain their failure to
meet this deadline either in the trial court or on appeal, even though the homeowners’
association raised their noncompliance in its appellee’s brief. Nor did they ask the
trial court for permission for the late filing, seek to continue the hearing, or provide
us any record that would enable us to not affirm on this basis. Even assuming the
failure to comply with this straightforward summary-judgment deadline could turn
on a litigant’s state of mind in a given case, nothing suggests that that changes the
outcome in this instance. The record is devoid of evidence of accident, mistake, or
some other kind of inadvertence that could excuse the untimely response.
On this record, we hold that the Johnsons’ status as nonlawyers representing
themselves does not alter our waiver analysis. See Perez, 474 SW.3d at 416 (noting
represented party did not seek leave to file late response, move for a continuance of
11 the summary-judgment hearing, or explain why she did not timely file response in
court’s analysis as to whether issue was waived); see also, e.g., Henry v. Vaella, No.
01-22-00869-CV, 2024 WL 4885438, at *3–5 (Tex. App.—Houston [1st Dist.] Nov.
26, 2024, no pet.) (rejecting contention that pro se litigant did not have to comply
with procedural requirements necessary to preserve error with respect to trial court’s
failure to grant continuance); Moore v. Carder, No. 01-22-00156-CV, 2023 WL
3102582, at *3–5 (Tex. App.—Houston [1st Dist.] Apr. 27, 2023, no pet.) (same
holding applied to incarcerated pro se inmate).
In Any Event, the Johnsons Did Not Create a Genuine Issue of Material Fact
Even if the Johnsons had not waived their defensive issues, their summary-
judgment response and its attached evidence do not create a material fact issue
anyway.
Construing the Johnsons’ response and evidence with liberality and patience,
their primary claim of fraud and estoppel rests on the purported release of the lien.
Their evidence shows that, after the Johnsons’ debts were discharged in bankruptcy,
counsel for the homeowners’ association agreed to release them personally and
update the lien to reflect this fact. The Johnsons assert that this bars foreclosure. But
they misunderstand the law.
Even if the Johnsons are not personally liable due to discharge in bankruptcy
or post-bankruptcy release, and thus they cannot be held personally liable in a
12 judgment for money damages, they have not filed any evidence that the
homeowners’ association released its lien as to the home. The association may still
bring a suit to compel sale of the home, which remains subject to the lien, under
these circumstances. See Fenlon v. Harris Cnty., 569 S.W.3d 783, 796 (Tex. App.—
Houston [1st Dist.] 2018, no pet.) (suit to foreclose on real property lien is action in
rem that concerns land, not persons); Glass v. Prcin, 3 S.W.3d 135, 140 (Tex.
App.—Amarillo 1999, pet. denied) (in rem action based on lien encumbering house
survives bankruptcy discharge); Faires v. Billman, 849 S.W.2d 455, 456 (Tex.
App.—Austin 1993, no writ) (bankruptcy discharge relieves debtors from personal
liability but does not prevent creditor from enforcing lien via in rem action).
To the extent the Johnsons argue that the homeowners’ association committed
fraud by misrepresenting the amount they owed in various ways, the only evidence
they filed to support this argument consists of a single statement in their joint
affidavit: “To the best of our knowledge and understanding we owe Parkway Lakes
Association nothing but the association fee of 2022.” But this statement is
conclusory and thus is not evidence. The Johnsons do not explain how the
association mispresented any amount owed or supply any facts that otherwise
support this claim of misrepresentation. Conclusory statements of this sort do not
defeat summary judgment. Hamilton v. Wilson, 249 S.W.3d 425, 427 (Tex. 2008).
13 Moreover, although they now argue it on appeal, the Johnsons’
summary-judgment response did not raise the doctrine of unclean hands as an
affirmative defense. This alone bars reversal based on this affirmative defense. KBG
Inv. v. Greenspoint Prop. Owners’ Ass’n, 478 S.W.3d 111, 114 (Tex. App.—
Houston [14th Dist.] 2015, no pet.). And beyond that, assuming the doctrine of
unclean hands may be used to defeat a lien created by a written instrument, the
Johnsons did not submit evidence that the conduct of the homeowners’ association
harmed them so seriously that the harm cannot be remedied unless the doctrine of
unclean hands is applied to bar foreclosure. See Gripping Eyewear v. Dietz, No. 01-
09-00034-CV, 2010 WL 1948323, at *6 (Tex. App.—Houston [1st Dist.] May 6,
2010, no pet.) (party raising unclean hands must show serious injury arising from
adversary’s conduct that cannot be corrected without doctrine).
Finally, though the Johnsons complain that they were not allowed to call the
property manager for the homeowners’ association as a witness at the summary-
judgment hearing, witnesses cannot testify at a summary-judgment hearing. TEX. R.
CIV. P. 166a(c).
Thus, not only did the Johnsons waive their claims, but even if they had not,
they would not have defeated summary judgment.
14 CONCLUSION
We affirm the trial court’s judgment.
Jennifer Caughey Justice
Panel consists of Justices Guerra, Caughey, and Morgan.