Double Diamond Delaware, Inc. v. John and Cathy Walkinshaw

Court of Appeals of Texas

Double Diamond Delaware, Inc. v. John and Cathy Walkinshaw

DecidedOctober 7, 2013

Docket05-13-00893-CV

StatusPublished

This text of Double Diamond Delaware, Inc. v. John and Cathy Walkinshaw (Double Diamond Delaware, Inc. v. John and Cathy Walkinshaw) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Double Diamond Delaware, Inc. v. John and Cathy Walkinshaw, (Tex. Ct. App. 2013).

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Opinion

DISMISS; and Opinion Filed October 7, 2013.

Court of Appeals S In The

Fifth District of Texas at Dallas No. 05-13-00893-CV

DOUBLE DIAMOND DELAWARE, INC., DOUBLE DIAMOND, INC., WHITE BLUFF CLUB CORP., NATIONAL RESORT MANAGEMENT CO., R. MICHAEL WARD, FRED CURRAN, GEORGE COLLINS, LARRY GROPPEL, RANDY GRACY, CLARK WILLINGHAM, DONALD FRITZ, MILT BERGMAN, WHITE BLUFF PROPERTY OWNERS ASSOCIATION, INC., Appellants V. JOHN AND CATHY WALKINSHAW, ET AL, 1 Appellees

On Appeal from the 191st Judicial District Court Dallas County, Texas Trial Court Cause No. DC-11-10333-J

MEMORANDUM OPINION Before Justices Moseley, Lang-Miers, and Lewis Opinion by Justice Lang-Miers

Pursuant to appellant rule 28.2 and former civil practice and remedies code section

51.014(d), 2 appellants bring this agreed interlocutory appeal from the trial court’s general order

granting appellees’ motion for partial summary judgment and denying appellants’ motion for

partial summary judgment. See Act of May 27, 2005, 79th Leg. R.S., ch. 1051, § 1, 2005 Tex.

Gen. Laws 3512, 3513 (applying to lawsuit filed on or after September 1, 2005), amended by Act 1 There are over one thousand appellees in this case. A complete listing of the names of the appellees can be found in the judgment. 2 This case was filed before September 1, 2011, therefore appellate rule 28.2 and former section 51.014(d) apply. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(d) note (West Supp. 2012); TEX. R. APP. P. 28. of May 25, 2011, 82d Leg., ch. 203, § 3.01, 2011 Tex. Gen. Laws 758, 759 (current version at

TEX. CIV. PRAC. & REM. CODE ANN. § 51.014 (West Supp. 2012)); TEX. R. APP. P. 28.2. At issue

is the assessment of mandatory property owners’ association (POA) fees for golf-course

maintenance and “a food and beverage program.” Concluding we lack jurisdiction, we dismiss

the appeal.

BACKGROUND

Double Diamond, Inc. is a real estate development company that owns the White Bluff

Resort at Lake Whitney, Texas. Appellees are current or former property owners in White Bluff

subject to the disputed POA fees. Asserting, among other complaints, that the assessment of

these fees was illegal, appellees, individually and derivatively as POA members, sued Double

Diamond, its subsidiaries, the POA, and POA board members. Among the causes of action

appellees alleged were “common law fraud/fraudulent inducement,” fraud in real estate, and

breach of fiduciary duty. Additionally, appellees sought temporary and permanent injunctions

prohibiting further assessment of the fees and a declaratory judgment that the fees were illegal

and improper under the POA governing documents; Texas property and business organization

codes; federal and state tax codes; and, restrictive covenant law.

Both parties moved for partial summary judgment, each raising multiple grounds.

Specifically, appellees sought judgment in their favor on their claim for injunctive relief and

each of the theories presented in their declaratory judgment action. Appellants also sought

partial summary judgment as to each of appellees’ theories for declaratory judgment and argued

that appellees’ claims with respect to the fees being illegal and improper under the tax codes and

the property code were not ripe, appellees did not have standing to raise them, and appellees

could not bring their claims derivatively on behalf of the POA.

–2– Without stating a basis, the trial court granted appellees’ motion and denied appellants’

motion. In its order, the trial court also granted the parties permission to appeal under appellate

rule 28.2 and former civil practice and remedies code section 51.014. Specifically, the order

recited as follows:

The Court finds that permitting interlocutory appeal is warranted because:

1. There is a controlling question of law as to which there is a substantial ground for difference of opinion[;]

2. An immediate appeal from the order may materially advance the ultimate termination of the litigation; and

3. The parties agree to an appeal of the order.

JURISDICTION

Our jurisdiction over this appeal depends on whether (1) the trial court’s interlocutory

order involves “a controlling question of law as to which there is a substantial ground for

difference of opinion,” and (2) “an immediate appeal . . . [may] materially advance the ultimate

termination of the litigation.” See TEX. R. APP. P.28.2; State Fair of Tex. v. Iron Mountain Info

Mgmt., Inc., 299 S.W.3d 261, 262 (Tex. App.—Dallas 2009, no pet.) (interpreting former rule

51.014(d)). Inherent in these jurisdictional requirements is that the trial court make a substantive

ruling on the specific legal question presented on appeal. See Bank of N.Y. Mellon v. Guzman,

390 S.W.3d 593, 597 n.2 (Tex. App.—Dallas 2012, no pet.) (citing Colonial Cnty. Mut. Ins. Co.

v. Amaya, 372 S.W.3d 308, 310 (Tex. App.—Dallas 2012, no pet.); State Fair, 299 S.W.3d at

264)); Gulley v. State Farm Lloyds, 350 S.W.3d 204, 207 (Tex. App.—San Antonio 2011, no

pet.). Because generally our jurisdiction is limited to appeals from final judgments and orders,

we strictly construe any statutes, such as former section 51.014, that allow appeals from

interlocutory orders. See Guzman, 390 S.W.3d at 596; State Fair, 299 S.W.3d at 262-63.

–3– In a letter brief filed at our direction, appellants identify four “controlling questions”

which generally track the grounds asserted in the competing summary judgment motions.

Arguing this case “is one of first impression” and the “parties’ opinion regarding the controlling

issues of law are both divergent and fundamental,” appellants assert the parties’ arguments

“present inter alia novel theories regarding burden of proof, enforceability of covenants (personal

or real), statutory construction or construction of governance documents, and standing.”

Appellants maintain that “because these differences of opinions cut to the very core of

[a]ppellees’ claims, they must be viewed as ‘substantial.’” Citing our opinion in State Fair of

Texas v. Iron Mountain Information Management, appellees respond, in part, that because the

trial court did not state the basis for its ruling, the appeal does not meet the strict requirements of

former section 51.014(d). See State Fair, 299 S.W.3d at 262, 264. We agree with appellees.

The appealed order is silent as to the basis for the trial court’s order, and nothing in the

record shows the trial court made a substantive ruling on any of the legal issues presented to us.

Although the trial court generally ruled on the competing partial summary judgment motions, it

did not rule on the substantive legal issues presented to it. See Gulley, 350 S.W.3d at 207.

Without a substantive ruling by the trial court, we have no jurisdiction. See Guzman, 390 S.W.3d

at 597-98. Accordingly, we dismiss the appeal.

/Elizabeth Lang-Miers/ ELIZABETH LANG-MIERS JUSTICE

130893F.P05

–4– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

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