Onwuteaka v. Cohen

846 S.W.2d 889, 1993 Tex. App. LEXIS 47, 1993 WL 4927
CourtCourt of Appeals of Texas
DecidedJanuary 14, 1993
Docket01-91-00213-CV
StatusPublished
Cited by33 cases

This text of 846 S.W.2d 889 (Onwuteaka v. Cohen) 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.

Bluebook
Onwuteaka v. Cohen, 846 S.W.2d 889, 1993 Tex. App. LEXIS 47, 1993 WL 4927 (Tex. Ct. App. 1993).

Opinion

OPINION

MIRABAL, Justice.

Appellant, Joseph Onwuteaka, filed suit alleging wrongful foreclosure, conversion, and fraud in connection with a foreclosure sale of his condominium. After a bench trial, the court ruled in favor of the defendants, and rendered a take-nothing judgment against Onwuteaka. We affirm.

Onwuteaka complains about the legal sufficiency of the evidence to support the trial court’s findings of fact. The following facts are uncontroverted: Onwuteaka is an attorney and CPA. He owned the condominium unit made the subject of this suit. Onwuteaka was plaintiff pro se in the trial court, and represents himself on *891 this appeal. Appellee, Hearthwood II Homeowner’s Association, Inc., is a nonprofit corporation created to manage the 321-unit property where the condominium unit is located, and to enforce the restrictive covenants under the condominium declaration. The Association initiated the foreclosure of Onwuteaka’s condominium as a result of his non-payment of maintenance fees. Appellee, Jay I. Cohen, is an attorney and was the trustee appointed to handle the foreclosure on Onwuteaka’s unit. Appellee, Nancy Groves, is a private real estate investor and was the highest bidder at the public foreclosure sale.

On March 13, 1989, Onwuteaka purchased condominium unit D22 at a foreclosure sale for $11,250. He installed new carpets, drapes, and appliances, and then rented the unit in May 1989 for $350 a month.

Onwuteaka purchased the unit subject to the condominium declaration on file in the Harris County Real Property Records. On-wuteaka never saw nor received a copy of the declaration. The condominium declaration requires all owners to contribute to the common expenses of the complex, stating: “Assessments for the estimated Common Expenses shall be due monthly in advance on or before the first (1st) day of each month.” The Association has a lien on each unit for unpaid assessments. Onwut-eaka never paid the monthly maintenance fee assessed on the unit. The Association had established a policy to send accounts over 80 days in arrears to Cohen for collection. Onwuteaka’s account was eight months in arrears when the notice of foreclosure was sent.

The condominium declaration provides for notices to be mailed to an owner in care of the condominium unit. The Association mailed all monthly maintenance assessments to Onwuteaka at the condominium unit. All assessments and notices, including a welcoming packet, were returned “addressee unknown.”

Cohen sent a demand letter dated September 11, 1989, by certified mail, return receipt requested, to Onwuteaka at his condominium address; the letter was returned undelivered to Cohen, marked “Attempted-addressee not known.” Cohen sent a second demand letter, dated September 27, 1989, by regular mail to Onwuteaka; it is not clear whether this letter was returned undelivered. On December 12,1989, Cohen sent, by certified mail, return receipt requested, a “Notice of Intended Foreclosure Sale” to Onwuteaka at his condominium address; this letter apparently was also returned to Cohen undelivered. On January 2, 1990, Cohen conducted the foreclosure sale on the condo at the Harris County courthouse, and executed a trustee’s deed conveying title to Nancy Groves. Groves was the highest bidder and paid $2,651. Groves testified that similar units in the complex had sold within the month for $8,000. Onwuteaka testified the unit was worth about $30,000 at the time of the sale.

Onwuteaka brought suit against the ap-pellees for: (1) wrongful foreclosure, alleging he was not notified as required by statute; (2) conversion, because the sale divested him of his rightful property; and (3) conspiracy to defraud.

After a bench trial, the trial court made the following findings of fact:

1. Joseph Onwuteaka, although on record notice of the maintenance assessment lien and private power of sale in foreclosure thereof in favor of Hearth-wood II Homeowners Association, Inc., wholly failed to pay any monthly maintenance assessment after he purchased the subject property.
2. The association made adequate and timely demand for payment of the monthly maintenance assessment, and notice of intended Trustee sale to Mr. Onwuteaka at the address of the subject property.
3. Thé trustee’s sale to Nancy Groves was regular and proper in all respects, and without the taint of conspiracy.
4. All duties owed by Jay I. Cohen to Mr. Onwuteaka were fully, duly and timely performed, and performed in good faith with fair dealing.

In each point of error, Onwuteaka asserts the trial court erred in failing to make findings in his favor. When findings *892 of fact and conclusions of law are filed in a case tried to the court, the findings have the same force and dignity as a jury’s verdict upon special issues. City of Clute v. City of Lake Jackson, 559 S.W.2d 391, 395 (Tex.Civ.App.—Houston [14th Dist.] 1977, writ ref’d n.r.e.). When a complete statement of facts also appears in the record, the trial court’s findings of fact are not conclusive. Middleton v. Kawasaki Steel Co., 687 S.W.2d 42, 44 (Tex.App.—Houston [14th Dist.]), writ ref'd n.r.e. per curiam, 699 S.W.2d 199 (Tex.1985). The trial court’s findings are reviewable for legal and factual sufficiency by the same standards applied in reviewing legal and factual sufficiency of the evidence to support a jury’s answer to a jury question. Okon v. Levy, 612 S.W.2d 938, 941 (Tex.Civ.App.—Dallas 1981, writ ref'd n.r.e.); First Nat’l Bank v. Kinabrew, 589 S.W.2d 137, 146 (Tex.Civ.App—Tyler 1979, writ ref’d n.r.e.).

We construe appellant’s complaint to be that, as a matter of law, the trial court should have made different findings. In reviewing a “matter of law” challenge, the reviewing court employs a two-prong test. The court will first examine the record for evidence that supports the finding, while ignoring all evidence to the contrary. Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex.1989). If there is no evidence to support the finding, the reviewing court will then examine the entire record to determine if the contrary proposition is established as a matter of law. Id. If the contrary proposition is established conclusively by the evidence, the point of error will be sustained. Meyerland Community Improvement Ass’n v. Temple, 700 S.W.2d 263, 267 (Tex.App.—Houston [1st Dist.] 1985, writ ref’d n.r.e.).

In point of error one, Onwuteaka asserts the trial court erred in failing to find that he was not given 21-days notice prior to the foreclosure sale.

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Bluebook (online)
846 S.W.2d 889, 1993 Tex. App. LEXIS 47, 1993 WL 4927, Counsel Stack Legal Research, https://law.counselstack.com/opinion/onwuteaka-v-cohen-texapp-1993.