Affirmed and Opinion Filed September 27, 2022
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-21-00274-CV
MUHAMMAD ASIM SHAMIM AND HAFSA ASIM, Appellants V. CANTERA OWNERS ASSOCIATION, INC., Appellee
On Appeal from the 401st Judicial District Court Collin County, Texas Trial Court Cause No. 401-06638-2019
MEMORANDUM OPINION Before Justices Partida-Kipness, Reichek, and Goldstein Opinion by Justice Partida-Kipness Appellants Muhammad Asim Shamim and Hafsa Asim appeal the trial court’s
award of attorney’s fees to appellee Cantera Owners Association, Inc. (the
Association). Finding no error, we affirm.
BACKGROUND
The Association is the property owner’s association for a planned community
in Richardson, Texas known as Cantera. Properties in the Cantera community are
subject to and governed by the Declaration of Covenants, Conditions, and
Restrictions for Cantera (the Declaration). Pursuant to the Declaration, the
Association levies assessments against property owners in the Cantera community, including appellants. The assessments are used in part to maintain and improve
Cantera “for the common benefit of owners and residents.” The assessments are
secured by a lien against each property in favor of the Association. Appellants failed
to pay the assessments in full to the Association. On June 21, 2019, the Association
provided appellants written notice of the delinquency and the Association’s intent to
pursue collection of the debt. The Association sent appellant a second demand letter
on July 22, 2019, that included a copy of the Lien of Delinquent Assessments (the
Lien) to be filed against the Property. The Association filed the Lien on August 9,
2019. Appellants did not dispute or cure the default. On November 26, 2019, the
Association filed the underlying lawsuit and asserted claims for breach of contract
and judicial foreclosure.
As of October 30, 2020, appellants owed the Association $22,657.55. The
total due included a balance forward of $874.15, the 2019 and 2020 assessments of
$1,800.00 each, various fees and charges, interest, legal fees related to pre-suit
collection efforts, and attorney’s fees incurred in relation to the underlying litigation.
In its November 4, 2020, amended motion for summary judgment, the Association
prayed for an order authorizing foreclosure on the Lien, a judgment for all amounts
due under the Declaration, and an award of reasonable attorney’s fees. The
Association primarily sought its fees as part of its foreclosure action as permitted by
article 10 of the Declaration and Chapter 209 of the property code. Article 10.6 of
the Declaration provides:
–2– In any foreclosure, the owner is required to pay the Association’s costs and expenses for the proceedings, including reasonable attorney’s fees, subject to applicable provisions of the Bylaws and applicable law, such as Chapter 209 of the Texas Property Code.
DECLARATION at art. 10.6, Foreclosure of Lien. Chapter 209 of the property code
provides a statutory basis for fees in a foreclosure action:
A property owners’ association may collect reimbursement of reasonable attorney’s fees and other reasonable costs incurred by the association relating to collecting amounts, including damages, due the association for enforcing restrictions or the bylaws or rules of the association . . . .
TEX. PROP. CODE § 209.008(a). Alternatively, the Association sought fees in relation
to its breach of contract action. TEX. PROP. CODE § 5.006 (“court shall allow” the
prevailing party to recover reasonable attorney’s fees and costs “in an action based
on breach of a restrictive covenant pertaining to real property”); TEX. CIV. PRAC. &
REM. CODE § 38.001(8) (attorney’s fees may be recovered if the claim is for an oral
or written contract).
The trial court granted the amended motion, rendered judgment for the
Association, and awarded the Association $22,657.55, which included attorney’s
fees of $17,870.00, and all assessments, late charges, and costs owed by appellants.
The judgment does not state under which statute the trial court awarded attorney’s
fees. The court also awarded the Association conditional appellate fees. This appeal
followed. On appeal, appellants challenge only the $17,870.00 award of attorney’s
fees.
–3– STANDARD OF REVIEW
We review a trial court’s decision to award attorney’s fees for an abuse of
discretion. El Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 761 (Tex. 2012). When
reviewing a trial court’s award of attorney’s fees, we must ensure the record contains
sufficient evidence to support such an award. Rohrmoos Venture v. UTSW DVA
Healthcare, LLP, 578 S.W.3d 469, 505 (Tex. 2019) (concluding the record lacked
sufficient evidence to support the trial court’s award of attorney’s fees). The party
seeking attorney’s fees bears the burden of proof and must supply enough facts to
support the reasonableness of the amount awarded. El Apple I, Ltd., 370 S.W.3d at
762–63. If there is insufficient evidence in the record to uphold the trial court’s
award of those fees, we must reverse. Yowell v. Granite Operating Co., 620 S.W.3d
335, 354 (Tex. 2020).
We review the amount of a fee award for legal sufficiency. Rohrmoos Venture,
578 S.W.3d at 490. When reviewing a legal sufficiency challenge, “we must view
the evidence in a light that tends to support the disputed finding and disregard
evidence and inferences to the contrary.” Wal-Mart Stores, Inc. v. Canchola, 121
S.W.3d 735, 739 (Tex. 2003) (citing Bradford v. Vento, 48 S.W.3d 749, 754 (Tex.
2001)). A legal sufficiency or “no evidence” point will be sustained when (1) there
is a complete absence of evidence of a vital fact, (2) the court is barred by rules of
law or of evidence from giving weight to the only evidence offered to prove a vital,
(3) the evidence offered to prove a vital fact is no more than a mere scintilla, or (4)
–4– the evidence conclusively establishes the opposite of a vital fact. Scott Pelley P.C.
v. Wynne, 578 S.W.3d 694, 701–02 (Tex. App.—Dallas 2019, no pet.). Evidence
that is no more than a scintilla “in legal effect, is no evidence.” Kindred v.
Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983). More than a scintilla of evidence
exists when the evidence supporting the finding “rises to a level that would enable
reasonable and fair-minded people to differ in their conclusions.” Merrell Dow
Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997) (quoting Burroughs
Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995)). “Evidence does not
exceed a scintilla if it is ‘so weak as to do no more than create a mere surmise or
suspicion’ that the fact exists.” Kroger Tex., Ltd. P’ship v. Suberu, 216 S.W.3d 788,
793 (Tex.2006) (quoting Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601
(Tex.2004)). Where, as here, a trial court’s order does not specify the grounds for its
summary judgment, we must affirm if any of the theories presented to the trial court
and preserved for appellate review are meritorious. E.g., Cmty. Health Sys. Prof’l
Servs. Corp. v. Hansen, 525 S.W.3d 671, 680 (Tex. 2017).
ANALYSIS
Appellants challenge the trial court’s award of attorney’s fees to the
Association. In six issues, appellants assert the trial court abused its discretion by
awarding attorney’s fees because the Association did not establish entitlement to
fees and the fees awarded were not reasonable and necessary.
–5– I. Entitlement to fees
In their first three issues, appellants maintain the Association was not entitled
to recover its attorney’s fees because the Association (1) did not comply with certain
procedural requirements to maintain a foreclosure action, (2) did not notify
appellants that fees would be charged to them after a date certain, and (3) refused
appellants’ tender of partial payment for past due assessments.
A. Property code requirements to maintain a foreclosure action1
Appellants’ first issue addresses the Association’s entitlement to fees as part
of the judicial foreclosure action. According to appellants, the Association was
barred from recovering its fees because they failed to follow three legal requirements
of a foreclosure action. Appellants initially contend the Association was not
permitted to recover attorney’s fees in relation to the judicial foreclosure because the
Association was in a “defunct status” between March 3, 2019, and February 24,
2020. The record shows the Association involuntarily terminated its certificate of
formation on March 18, 2019, and reinstated the certificate effective February 24,
2020. According to appellants, the Association was prohibited from taking any steps
to foreclose on the Property during that time and, as a result, any fees incurred during
that time are not recoverable. Appellants cite no authority to support this proposition,
and we have found none. The property code permits property owners’ associations
1 Appellants do not appeal the trial court’s determinations that the Association was entitled to judicial foreclosure and judgment in its favor on the breach of contract claim. Appellants only seek reversal of the award of attorney’s fees. We, therefore, do not address the merits of the trial court’s judgment on liability. –6– to be incorporated or unincorporated. TEX. PROP. CODE 209.002(7). The
Association’s unincorporated status between March 2019, and February 2020, did
not impede or prohibit its ability to hold meetings, send notices, and seek payment
of debts owed. We overrule appellants’ first argument.
Appellants next argue the Association did not comply with notice and hearing
requirements found in two sections of the property code. See TEX. PROP. CODE §
209.0051(e) (requirements for providing notice to association members of regular or
special board meetings); TEX. PROP. CODE § 209.008(b) (“An owner is not liable for
attorney’s fees incurred by the association relating to a matter described by the notice
under Section 209.006 if the attorney’s fees are incurred before the conclusion of the
hearing under Section 209.007 or, if the owner does not request a hearing under that
section, before the date by which the owner must request a hearing.”). Appellants
did not assert these objections in the trial court. They are, therefore, not preserved
for appellate review. See TEX. R. APP. P. 33.1(a) (for an issue to be preserved for
appeal, the party raising the issue must first raise it with the trial court and give the
trial court the opportunity to consider and rule on the alleged error). We overrule
these arguments and overrule appellants’ first issue.
B. Notice requirements of TEX. PROP. CODE 209.008
Next, appellants argue the fee award should be reversed because the
Association violated section 209.008(a) of the property code by failing to provide
appellants with written notice that fees would be charged if the delinquency or
–7– violation continued after a date certain. See TEX. PROP. CODE § 209.008(a).
Appellants did not raise this argument below, so it is not preserved for our review.
See TEX. R. APP. P. 33.1(a). We overrule appellants’ second issue.
C. Rejection of partial payment
Finally, appellants argue the Association was not entitled to fees because the
Association refused a payment tendered by appellants. The record shows appellants
presented a check and money order to the Association in late June 2020. The
Association rejected the payment on July 6, 2020, because the amount paid was less
than the amount owed at that time. Article 11.9 of the Declaration provides that the
Association “may refuse to accept partial payment, i.e., less than the full amount due
and payable.” Appellants cite no authority to support this argument and fail to
explain why the Association must be denied fees for engaging in conduct specifically
permitted by the Declaration. Moreover, appellants did not object to the award of
fees on this basis in the trial court. Appellants asserted only that the Association’s
rejection of the payment estopped the Association from foreclosing on the property.
Because Appellants did not raise this argument below, it is not preserved for our
review. See TEX. R. APP. P. 33.1(a). We overrule appellants’ third issue.
For the foregoing reasons, we overrule appellants’ first, second, and third
issues and affirm the trial court’s determination the Association was entitled to
recover its reasonable attorney’s fees. We now turn our attention to appellants’
challenge to the amount of fees awarded.
–8– II. Amount of fee award
In their challenge of the reasonableness and necessity of the fees award,
appellants argue the trial court erred by awarding fees because (1) genuine issues of
material fact remained regarding the reasonableness and necessity of the fees
awarded, (2) $17,870 is not a reasonable and necessary fee, and (3) the Association
failed to prove $17,870 was a reasonable and necessary fees award. The Association
maintains the evidence was sufficient to establish the reasonableness and necessity
of the fees awarded. We agree with the Association.
Texas uses the “lodestar method,” which is essentially a “short hand version”
of the Arthur Andersen factors, to determine reasonable and necessary attorney's
fees. Rohrmoos Venture, 578 S.W.3d at 496; see Arthur Andersen & Co. v. Perry
Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997). Under the lodestar method, the
factfinder must first determine the reasonable hours spent by counsel and the
reasonable hourly rate for counsel’s work. El Apple I, Ltd., 370 S.W.3d at 760. The
factfinder then multiplies the number of hours counsel worked on the case by the
applicable rate to determine the base fee or lodestar. Id. The base fee is presumed to
reflect the reasonable and necessary attorney’s fees. Rohrmoos Venture, 578 S.W.3d
at 499. The factfinder may adjust the lodestar up or down if relevant factors indicate
an adjustment is necessary to reach a reasonable fee in the case. Id. at 500–01.
It is the fee-claimant’s burden to provide sufficient evidence of both the
reasonable hours worked and the reasonable hourly rate. Rohrmoos Venture, 578
–9– S.W.3d at 498. “Sufficient evidence includes, at a minimum, evidence of (1)
particular services performed, (2) who performed those services, (3) approximately
when the services were performed, (4) the reasonable amount of time required to
perform the services, and (5) the reasonable hourly rate for each attorney performing
the services.” Id. “General, conclusory testimony devoid of any real substance will
not support a fee award.” Id. at 501. Generalities about tasks performed provide
insufficient information for the factfinder to meaningfully review whether the tasks
and hours were reasonable and necessary. El Apple I, 370 S.W.3d at 764. While
contemporaneous billing records are not required, there must be some evidence to
inform the trial court of the time spent on specific tasks to enable the factfinder to
meaningfully review the requested fees. Rohrmoos Venture, 578 S.W.3d at 502;
Long v. Griffin, 442 S.W.3d 253, 253, 255 (Tex. 2014) (per curiam).
The Association presented the affidavit of its counsel, Lance Erickson, to
support its request for attorney’s fees. Erickson testified the Association hired
Erickson’s law firm on June 21, 2019, to collect the debt owed by appellants.
Erickson explained he and his firm began collection efforts by providing appellants
with written notice of appellants’ delinquent account and the Association’s intent to
collect the debt if not cured by appellants. After appellants did not dispute or cure
the debt, Erickson prepared and filed the Lien and notified appellants of the Lien.
He and another attorney in his firm, Casey Meyers, prepared and filed the petition
for judicial foreclosure. Erickson stated it was necessary to file the judicial
–10– foreclosure action because appellants had not paid the amounts due. He also
explained preparing the petition “was very time consumptive and required a review
of the title records as well as an exhaustive review of the entire client file, the
Declaration of the Association, and Applicable Texas Law.”
Erickson testified he was licensed to practice law on May 5, 2010. Since then,
he has “engaged in a practice specializing in commercial, private, individual,
business, and home-owners association collections.” He also stated he was familiar
with the reasonable attorney’s fees charged for the same or similar services in Collin
County, Texas that were performed on behalf of the Association here and believes
charging $300.00 per hour is fair and reasonable. Erickson included his and Meyers’
billing records on the case. The billing records consisted of a spreadsheet setting out
the services performed, who performed each task, the rates charged, the date of
services, and the hours billed by each attorney who worked on the case. The billing
records showed he and Meyers billed a total of 59.57 hours to the case during the
fourteen-month period between June 21, 2019, and August 26, 2020. He and Meyers
charged an hourly rate of $300.00, resulting in a lodestar total of $17,870.00. These
fees encompassed services performed beginning with the initial demand letter to
appellants and through the August 26, 2020 hearing on the Association’s original
motion for summary judgment. According to Erickson, those charges were necessary
because of appellants’ failure to abide by the Declaration and their failure or refusal
to pay the sums legitimately charged to their account by the Association. Erickson
–11– stated he had reviewed the Arthur Anderson factors when considering whether the
fees charged were reasonable. Based on those factors, Rule 1.04 of the Texas
Disciplinary Rules of Professional Conduct, and his “years of practice,” it was his
opinion the amount of $17,870.00 in attorney’s fees was reasonable and the work
reflected was necessary under the facts of this case.
We conclude Erickson’s declaration is sufficient to demonstrate he had
personal knowledge of who performed each task, the date that each task was
performed, the amount of time spent on each task, the hourly billing rate for each
task, and whether the time and rate billed were reasonable and necessary here.
Moreover, Erickson’s testimony and the admitted billing records meet the standards
set forth in Rohrmoos Venture and provide legally sufficient evidence to support the
fee award. The testimony and exhibits set forth (1) the particular services performed
and when performed, (2) the identity of the timekeepers performing the services, (3)
the reasonable amount of time required to perform the services, and (4) the
reasonable hourly rates for the timekeepers performing those services. Having
reviewed the record in the light most favorable to the judgment, we conclude the
award of attorney’s fees is supported by legally sufficient evidence. See, e.g., Laws
v. Roberson, No. 05-20-00342-CV, 2022 WL 224358, at *3 (Tex. App.—Dallas Jan.
26, 2022, no pet.) (mem. op.) (counsel’s affidavit and billing records sufficient to
support jury finding that $62,500 was a reasonable and necessary fee for the services
provided); see also Scott Pelley P.C. v. Wynne, 578 S.W.3d 694, 705 (Tex. App.—
–12– Dallas 2019, no pet.) (applying factors and concluding evidence legally sufficient).
Appellants have not shown the trial court abused its discretion by awarding the
Association $17,870.00 in attorney’s fees. We overrule appellants fourth, fifth, and
sixth issues.
CONCLUSION
Under this record, we conclude the trial court did not abuse its discretion by
awarding the Association attorney’s fees. Further, the evidence was legally sufficient
to support the attorney’s fees award of $17,870.00. Accordingly, we affirm the trial
court’s March 24, 2021, amended final judgment.
/Robbie Partida-Kipness/ ROBBIE PARTIDA-KIPNESS JUSTICE
210274F.P05
–13– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
MUHAMMAD ASIM SHAMIM On Appeal from the 401st Judicial AND HAFSA ASIM, Appellants District Court, Collin County, Texas Trial Court Cause No. 401-06638- No. 05-21-00274-CV V. 2019. Opinion delivered by Justice Partida- CANTERA OWNERS Kipness. Justices Reichek and ASSOCIATION, INC., Appellee Goldstein participating.
In accordance with this Court’s opinion of this date, the March 24, 2021, amended final judgment of the trial court is AFFIRMED.
It is ORDERED that appellee CANTERA OWNERS ASSOCIATION, INC. recover its costs of this appeal from appellants MUHAMMAD ASIM SHAMIM AND HAFSA ASIM.
Judgment entered this 27th day of September 2022.
–14–