ACCEPTED 03-15-00513-CV 7995173 THIRD COURT OF APPEALS AUSTIN, TEXAS 11/25/2015 2:31:06 PM JEFFREY D. KYLE CLERK CAUSE NO. 03-15-00513-CV
=================================================== In The Court Of Appeals Third Court Of Appeals District Austin, Texas
=================================================== ELWYN D. SHUMWAY, APPELLANT
VS.
WHISPERING HILLS OF COMAL COUNTY, TEXAS PROPERTY OWNERS ASSOCIATION, INC., APPELLEE
===================================================
APPEAL FROM CASE NO. C2015-0215A; 22ND JUDICIAL DISTRICT COMAL COUNTY, TEXAS HON. DIBRELL WALDRIP, PRESIDING
BRIEF OF APPELLEE
ZACHARY B. AOKI State Bar No. 01275870 zaoki@thurman-phillips.com MICHAEL B. THURMAN State Bar No. 2006500 4093 De Zavala Road San Antonio, Texas 78249 (210) 341-2020 – Telephone (210) 344-6460 – Facsimile COUNSEL FOR APPELLEE, WHISPERING HILLS OF COMAL COUNTY, TEXAS PROPERTY OWNERS ASSOCIATION, INC. CAUSE NO. 03-15-00513-CV
=================================================== In The Court Of Appeals Third Court Of Appeals District Austin, Texas
=================================================== ELWYN D. SHUMWAY, APPELLANT
WHISPERING HILLS OF COMAL COUNTY, TEXAS PROPERTY OWNERS ASSOCIATION, INC., APPELLEE
APPEAL FROM CASE NO. C2015-0215A; 22ND JUDICIAL DISTRICT COMAL COUNTY, TEXAS HON. DIBRELL WALDRIP, PRESIDING
TO THE HONORABLE COURT OF APPEALS:
Appellee, Whispering Hills of Comal County, Texas Property Owners
Association, Inc., files this Brief for Appellee and respectfully states: IDENTITY OF PARTIES AND COUNSEL
In addition to the parties and counsel named by Appellant, the following is a party to the trial court’s judgment appealed from:
Defendant/Appellee: Whispering Hills of Comal County, Texas Property Owners Association, Inc.
Represented By:
Michael B. Thurman State Bar No. 2006500 Zachary B. Aoki State Bar No. 01275870 Thurman & Phillips, P.C. 4093 De Zavala Road San Antonio, Texas 78249
Mr. Thurman is not a party to the judgment. Mr. Aoki is not a party to the judgment. Hon. Dibrell Waldrip is not a party to the judgment.
ii TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ii
TABLE OF CONTENTS iii
INDEX OF AUTHORITIES iv
STATEMENT OF THE CASE v
STATEMENT REGARDING ORAL ARGUMENT vii ISSUES PRESENTED viii
STATEMENT OF FACTS 2 SUMMARY OF THE ARGUMENT 4
ARGUMENT 5 I. STANDARD OF REVIEW 5
II. TAKING ALL FACTS AS TRUE, APPELLANT CANNOT OBTAIN THE RELIEF SOUGHT AS A MATTER OF LAW 5
III. THE TRIAL COURT DID NOT ERR WHEN IT GRANTED APPELLEE’S MOTION TO DISMISS BASED ON LIMITATIONS 7
A. The trial court assumed all facts to be true. 7
B. The trial court properly ruled that the cause of action arose more than four years before the suit was filed. 7
CONCLUSION 9 PRAYER 10
CERTIFICATE OF COMPLIANCE 11 CERTIFICATE OF SERVICE 12
APPENDIX 13 iii INDEX OF AUTHORITIES Cases
City of Austin v. Liberty Mut. Ins., 431 S.W.3d 817, 821-22 (Tex. App. – Austin
2014, no pet) 5
GoDaddy.com, LLC v. Toups, 429 S.W.3d 752, 754 (Tex. App. – Beaumont 2014,
pet. denied) 7
Mann v. Adams Realty Co., 556 F.2d 288, 293 (5th Cir.1977) 7
Prestige Ford Garland Ltd. P’ship v. Morales, 336 S.W.3d 833 (Tex.App.-Dallas
2011, no pet.) 8
Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 221 (Tex. 2003) 8
Roark v. Allen, 633 S.W.2d 804, 810 (Tex.1982) 5
Tawes v. Barnes, 340 S.W.3d 419, 425 (Tex. 2011). 6
Weizhong Zheng v. Vacation Network, Inc., 468 S.W.3d 180, 183-84 (Tex.App. --
Houston [14th Dist.] 2015, pet. denied). 5
Rules
Fed. R. Civ. P. 12(b)(6) 7
TEX. R. CIV. P. 91a (West 2015) 4, 5, 7
iv STATEMENT OF THE CASE 1
This is an appeal of an order granting a motion to dismiss. Appellee filed its
motion to dismiss on April 28, 2015. (CR 13)
Appellant filed his Original Petition on February 10, 2015, which was
assigned to the 22nd Judicial District Court, Comal County, Texas. (CR 4) in his
First Amended Petition, Appellant pled for a declaratory judgment seeking a
determination of his rights pursuant to a deed he received for certain property in
Comal County, Texas. (CR 9) Appellee requested that the Court enter a final
judgment that he could use his Property for nonresidential purposes. In its motion
to dismiss, Appellee contended that the petition and attachments thereto
demonstrated that as a matter of law the Appellant could not receive the relief he
sought. On July 7, 2015, Appellant filed his Second Amended Original Petition
after the trial court gave permission to amend or seek counsel.
The trial court heard argument on the Motion to Dismiss on June 17, 2015
and July 14, 2015. (RR vol. 2, p. 1, vol. 3, p. 1) Appellee appeared through its
attorney and appellant, pro se.
1 References to the Clerk’s Record are designated (CR ___). References to the Reporter’s Record are designated (RR ___). v At the initial hearing, the trial court considered the arguments of both parties
and reviewed the pleadings. The trial court reset a hearing on the matter to allow
the Appellant to amend his petition and state a cognizable cause of action. (RR
Vol. 2, p. 35-37, 42-43, 47-48) The trial court considered further argument and
after due consideration, ordered that the lawsuit be dismissed. (RR Vol. 3, p. 55-
56) (CR 65) The trial court heard testimony with regard to attorney’s fees. Based
on the evidence presented, the trial court awarded Appellee $3375 in attorney’s
fees. The court’s decision was reduced to writing and an order was filed on July
22, 2015. (CR 65-66) It is from this final order that Appellant has appealed.
vi STATEMENT REGARDING ORAL ARGUMENT
Appellee does not request oral argument as it is of the opinion that oral
argument will not materially aid the Court in making its decision. No novel issues
or arguments are presented in this case.
vii ISSUES PRESENTED
Appellant has asserted four “Points of Error” in his Brief. The first three
points are subsumed under the following point:
Issue No. 1: Did the trial court err in granting the motion to dismiss
based on the conclusion that the statute of limitations barred the
relief sought?
Appellee agrees with the formulation of the fourth point of error.
Appellee will address the points out of order because the fourth point of
error is outcome determinative. Sustaining the trial court’s decision that the
pleading does not state a claim obviates the need to decide whether limitations bars
the claims.
viii CAUSE NO. 03-15-00513-CV
=================================================== In The Court Of Appeals Third Court Of Appeals District Austin, Texas
=================================================== ELWYN D. SHUMWAY, APPELLANT
WHISPERING HILLS OF COMAL COUNTY, TEXAS PROPERTY OWNERS ASSOCIATION, INC., APPELLEE
APPEAL FROM CASE NO. C2015-0215A; 22ND JUDICIAL DISTRICT COMAL COUNTY, TEXAS HON. DIBRELL WALDRIP, PRESIDING
Appellee, Whispering Hills of Comal County, Texas Property Owners
Association, Inc., files this Brief for Appellee and respectfully states: STATEMENT OF FACTS
Appellee is a Texas nonprofit corporation organized to manage the affairs
and enforce the declaration of covenants, conditions, and restrictions at the
subdivision known as Whispering Hills located in Comal County, Texas. On
March 22, 1975, Appellant purchased lots 2 and 5 in the Whispering Hills
subdivision. (CR 37) Appellant obtained a contract for deed for the properties and
received a deed for the properties on or about October 15, 1984. (CR 35-40) The
contract for deed contained and described restrictions on the use of the properties.
(CR 37-40) Included among the restrictions was a clause limiting use of the
property to residential purposes unless designated as a business lot. (CR 40)
When Appellant received his deed, the restrictions had changed in form but not
substance. (CR 35, Appendix to Appellant’s Brief at p. 36)
Appellant concedes that he has known for some time of the failure of the
developer to designate his lots for business purposes. He further conceded in his
pleadings that the lots were not designated for business purposes. (CR 25)
Attached as an exhibit to Appellant’s three petitions was a letter from Steven
Bepko dated July 7, 2010. (CR 48) In that letter, Mr. Bepko states that the owners
of certain properties, including the ones owned by Appellant’s, had a dispute with
the Association regarding the use of their properties. (CR 48) He states in his
2 opinion that the properties should be used for business purposes and were sold as
business lots. (CR 48)
On June 17 and July 14, 2015, the trial court heard Appellee’s Motion to
Dismiss. (RR Vol. 1, 2 and 3) The trial court granted the Motion to Dismiss. (RR
Vol. 3 p. 55-56) On or about July 22, 2015, the trial court signed the order
dismissing the lawsuit. (CR 65) Appellant filed his Notice of Appeal on or about
August 14, 2015. (CR 67-68)
3 SUMMARY OF THE ARGUMENT
This appeal involves the granting of a motion to dismiss pursuant to Tex. R.
Civ. P. 91a. The trial court properly granted Appellee’s Motion to Dismiss.
Taking the allegations stated in the petition as true, no basis in law exists that
would entitle Appellant to the relief sought. The trial court acted properly because
the allegations establish that the Appellant has no right to use his lots for business
purposes. Furthermore, the trial court acted properly because the pleadings and
attachments conclusively establish that Appellant knew that he could not use his
property for business purposes more than four years before he filed suit.
4 ARGUMENT
I. STANDARD OF REVIEW
Rule 91a of the Texas Rules of Civil Procedure permits a trial court to
dismiss a cause of action that has no basis in law or fact. City of Austin v. Liberty
Mut. Ins., 431 S.W.3d 817, 821-22 (Tex. App. – Austin 2014, no pet); TEX. R. CIV.
P. 91a (West 2015). In reviewing a trial court’s ruling on a 91a motion, the Court
should review the trial court decision de novo, based on the allegations of the live
petition and any attachments thereto. Weizhong Zheng v. Vacation Network, Inc.,
468 S.W.3d 180, 183-84 (Tex.App. -- Houston [14th Dist.] 2015, pet. denied). In
conducting the review, the Court should accept as true the factual allegations in the
pleadings to determine if the cause of action has a basis in law or fact. Id.; see
Roark v. Allen, 633 S.W.2d 804, 810 (Tex.1982).
II. TAKING ALL FACTS AS TRUE, APPELLANT CANNOT OBTAIN THE RELIEF SOUGHT AS A MATTER OF LAW
Rule 91a allows a trial court to dismiss a cause of action if the facts as set
forth do not allow recovery as a matter of law. TEX. R. CIV. P. 91a. Appellant
acknowledges that the recorded documents do not permit use of his property for a
non-residential purpose. Because the recorded deed has never permitted the use of
the property for business purposes, the trial court did not have the power to rewrite
5 the unambiguous deed regardless of what rights Appellant may have thought he
obtained more than forty years earlier.
In the absence of ambiguity, the interpretation of a contract is a legal
question for a court. Tawes v. Barnes, 340 S.W.3d 419, 425 (Tex. 2011). In this
case, Appellant has attached both his contract for deed and his deed. (CR 35, 40)
The contract for deed states, “The property herein described shall be used solely
for new residential purposes.” (CR 40) Appellant’s deed states, “All tracts shall
be used solely for residential purposes, except tracts designated for business
purposes….” (CR 35) Appellant admits that his tract was not designated for
business purposes. Appellant’s Brief at 8. The Original Petition, First Amended
Original Petition and the Second Amended Original Petition all attached the deed
and contract for deed as exhibits. In all three pleadings, Appellant states that the
recorded plat does not designate his tracts for business purposes. (CR 25) Given
that no document states that the property may be used for business purposes,
Appellant cannot receive the relief that he sought – a declaration that he has the
right to use the property for business purposes. (CR 30) Thus, the trial court did
not err when granting the Motion to Dismiss.
6 III. THE TRIAL COURT DID NOT ERR WHEN IT GRANTED APPELLEE’S MOTION TO DISMISS BASED ON LIMITATIONS
Even if the Court determines that the trial court should not have granted the
motion to dismiss based on plaintiff’s attachments and admissions, the trial court
properly ruled that limitations barred Appellant’s claim. 2
A. The trial court assumed all facts to be true.
Rule 91a requires the trial court to assume all allegations to be true together
with all reasonable inferences to be drawn from the allegations when deciding if a
cause of action has a basis in law. TEX R. CIV.P. 91a. The trial court stated on
numerous occasions during the hearings that he assumed all of the Appellant’s
facts to be true. (RR Vol. 2, p. 29, 32, 36, 40, 44, 47; Vol. 3 p. 54) Appellant has
provided no basis to conclude that the trial court acted inappropriately.
B. The trial court properly ruled that the cause of action arose more than four years before the suit was filed. Appellant states he did not suffer a legal injury until he inquired about the
use of his property for business purposes. A “legal injury” occurs when facts come
into existence that authorize a party to seek a judicial remedy. Provident Life &
2 Federal courts have permitted dismissal of suits pursuant to FED. R. CIV. P. 12(b)(6) based on the statute of limitations. Mann v. Adams Realty Co., 556 F.2d 288, 293 (5th Cir.1977). Because TEX. R. CIV. P. 91a is analogous to FED. R. CIV. P. 12(b)(6), Texas courts may look to case law interpreting 12(b)(6). See GoDaddy.com, LLC v. Toups, 429 S.W.3d 752, 754 (Tex. App. – Beaumont 2014, pet. denied). 7 Accident Ins. Co. v. Knott, 128 S.W.3d 211, 221 (Tex. 2003); Prestige Ford
Garland Ltd. P’ship v. Morales, 336 S.W.3d 833 (Tex.App.--Dallas 2011, no pet.)
Appellant’s claim arises from the transaction he entered into in 1975.
Appellant asserts that he received certain promises regarding the use of his
property. Appellant further admits that the promises made by the developer are
contrary to the rights set forth in his deed. Appellant states that he does not know
the exact date he learned that his property could not be used for business purposes;
however, he admits that the knowledge was obtained more than four years prior to
filing suit. Appellant’s Brief at 16. Appellant’s contract for deed unambiguously
states that the property shall be used for residential purposes only. (CR 40) He
received his deed in 1984. (CR 35)
Even if the contract for deed did not create a legal injury, receipt of a deed
that did not permit use as a business certainly did. See Prestige Ford, 336 S.W.3d
at 838-39. At that time, Appellant received his property subject to the restriction
that it be used for residential purposes unless otherwise designated. Upon receipt
of the deed, the applicant suffered injury because he received something less than
what he had been promised. Because a legal injury was suffered more than four
years prior to filing suit, the trial court did not err.
8 Finally, Appellant attached a letter that written on July 7, 2010. (CR 48)
Appellant wants to disavow those portions of the letter that do not benefit him.
However, the letter further supports the statements of Appellant that he thought he
was buying a property that could be used for business purposes and that he knew
that the property had not been designated for business purposes more than four
years before filing suit. Certainly by July 2010, Plaintiff knew that the Appellee
was not going to permit business use. At that point, Appellant suffered his injury
because he had been told he could use the property for residential or business
purposes.3
CONCLUSION
The trial court properly granted the Motion to Dismiss. Assuming all facts
as stated in the First and Second Amended Petitions to be true and reviewing the
record de novo, no basis in law exists to declare that Appellant was entitled to use
his property for business purposes. Therefore, the trial court did not commit error
and the judgment of the trial court should be affirmed.
3 Appellee asserts that the injuries were suffered when Appellant received the contract for deed in which it states that the property shall be used only for residential purposes. 9 PRAYER
Appellee respectfully requests that the Court of Appeals affirm the judgment
of the trial court. Appellee further requests that all costs of the appeal be taxed
against Appellant. Appellee requests such further relief to which it may be
entitled.
Respectfully submitted,
THURMAN & PHILLIPS, P.C.
/S/ ZACHARY B. AOKI ZACHARY B. AOKI State Bar No. 01275870 zaoki@thurman-phillips.com MICHAEL B. THURMAN State Bar No. 2006500 8000 IH-10 West, Suite 1000 San Antonio, Texas 78230 (210) 341-2020 – Telephone (210) 344-6460 – Facsimile ATTORNEYS FOR APPELLEE
10 CERTIFICATE OF COMPLIANCE
I certify that Appellee’s Brief does not exceed the word count limit as set
forth in Rule 9.4(i)(3) of the Texas Rules of Appellate Procedure. The exact word
count based on the information provided by Word 2013 is 1701.
/s/ Zachary B. Aoki Zachary B. Aoki
11 CERTIFICATE OF SERVICE
The undersigned counsel certifies that a true and correct copy of the above
document was served on the Appellant by electronic mail on the 25th day of
November, 2015.
12 APPENDIX
A. FED. R. CIV. P. 12(b)(6)
B. Contract for Deed (CR 37-40)
C. Bepko Letter (CR 48)
13 A Rule 12. Defenses and Objections: When and How Presented;..., FRCP Rule 12
United States Code Annotated Federal Rules of Civil Procedure for the United States District Courts (Refs & Annos) Title III. Pleadings and Motions
Federal Rules of Civil Procedure Rule 12
Rule 12. Defenses and Objections: When and How Presented; Motion for Judgment on the Pleadings; Consolidating Motions; Waiving Defenses; Pretrial Hearing
Currentness
(a) Time to Serve a Responsive Pleading.
(1) In General. Unless another time is specified by this rule or a federal statute, the time for serving a responsive pleading is as follows:
(A) A defendant must serve an answer:
(i) within 21 days after being served with the summons and complaint; or
(ii) if it has timely waived service under Rule 4(d), within 60 days after the request for a waiver was sent, or within 90 days after it was sent to the defendant outside any judicial district of the United States.
(B) A party must serve an answer to a counterclaim or crossclaim within 21 days after being served with the pleading that states the counterclaim or crossclaim.
(C) A party must serve a reply to an answer within 21 days after being served with an order to reply, unless the order specifies a different time.
(2) United States and Its Agencies, Officers, or Employees Sued in an Official Capacity. The United States, a United States agency, or a United States officer or employee sued only in an official capacity must serve an answer to a complaint, counterclaim, or crossclaim within 60 days after service on the United States attorney.
(3) United States Officers or Employees Sued in an Individual Capacity. A United States officer or employee sued in an individual capacity for an act or omission occurring in connection with duties performed on the United States' behalf must serve an answer to a complaint, counterclaim, or crossclaim within 60 days after service on the officer or employee or service on the United States attorney, whichever is later.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Rule 12. Defenses and Objections: When and How Presented;..., FRCP Rule 12
(4) Effect of a Motion. Unless the court sets a different time, serving a motion under this rule alters these periods as follows:
(A) if the court denies the motion or postpones its disposition until trial, the responsive pleading must be served within 14 days after notice of the court's action; or
(B) if the court grants a motion for a more definite statement, the responsive pleading must be served within 14 days after the more definite statement is served.
(b) How to Present Defenses. Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion:
(1) lack of subject-matter jurisdiction;
(2) lack of personal jurisdiction;
(3) improper venue;
(4) insufficient process;
(5) insufficient service of process;
(6) failure to state a claim upon which relief can be granted; and
(7) failure to join a party under Rule 19.
A motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed. If a pleading sets out a claim for relief that does not require a responsive pleading, an opposing party may assert at trial any defense to that claim. No defense or objection is waived by joining it with one or more other defenses or objections in a responsive pleading or in a motion.
(c) Motion for Judgment on the Pleadings. After the pleadings are closed--but early enough not to delay trial--a party may move for judgment on the pleadings.
(d) Result of Presenting Matters Outside the Pleadings. If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.
(e) Motion for a More Definite Statement. A party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response. The motion must
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 B 37 38 39 40 C 48