Ramesh Kapur D/B/A AIC Management Company v. Fondren Southwest Tempos Association

• Court: Court of Appeals of Texas
• Decided: October 15, 2013
• Docket: 01-13-00138-CV
• Status: Published

Opinion

Opinion issued October 15, 2013.

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-13-00138-CV ——————————— RAMESH KAPUR D/B/A AIC MANAGEMENT COMPANY, APPELLANT V. FONDREN SOUTHWEST TEMPOS ASSOCIATION, APPELLEE

On Appeal from the 151st District Court Harris County, Texas Trial Court Cause No. 2010-13051

MEMORANDUM OPINION

Fondren Southwest Tempos Association sued Ramesh Kapur (d/b/a AIC

Management Company) for unpaid maintenance assessments and violating various

deed restrictions in the Fondren Southwest Tempos townhouse complex. The trial

court granted the Association’s motion for summary judgment. Kapur appeals,

contending that (1) the Association failed to conclusively prove each of its claims and (2) the Association failed to address Kapur’s counterclaims in its motion for

summary judgment. We conclude that the trial court properly granted summary

judgment on the claim for unpaid maintenance fees, but it erred in granting a final

summary judgment, because the Association’s motion did not address Kapur’s

counterclaims. We therefore affirm in part and reverse and remand in part.

Background

The Association is the homeowners’ association for the townhouse complex.

In 2001, Kapur purchased a townhome in the complex. In early 2007, the

Association notified Kapur that he had violated various deed restrictions. The

Association complained that Kapur had installed an unapproved skylight and

completed other modifications to a closet and bedroom on the second floor of the

townhouse. It also complained that an excessive number of tenants lived in the

townhouse. Kapur responded that the previous owner had installed the skylight

and other modifications, and further, that the Association’s refusal to approve the

lease of the current tenants was unreasonable. Kapur stopped paying the monthly

maintenance assessments he was required to pay as the owner of the townhome.

The Association then sued Kapur for violating its deed restrictions and

failing to pay the maintenance assessments. The trial court subsequently granted

the Association’s motion for summary judgment and entered a default judgment.

2 In April 2009, the Association agreed to forbear execution on the judgment

if Kapur brought the townhouse into compliance with the deed restrictions and

paid the overdue maintenance assessments. Kapur made some, but not all, of the

maintenance payments. In March 2010, Kapur filed a bill of review, attacking the

default judgment against him. The trial court granted the bill and reinstated the

case.

In October 2011, Harris County foreclosed on Kapur’s townhouse pursuant

to a property tax lien; it later sold the townhouse at an auction. Kapur, appearing

pro se, filed counterclaims and affirmative defenses in the reinstated case, asserting

that the Association had interfered with his use and enjoyment of the townhouse

and had failed to abide by the Association’s bylaws in refusing to approve his

tenants, resulting in loss of rental income. The Association answered the

counterclaims and filed special exceptions, which the trial court denied. The

Association again moved for summary judgment. The trial court granted the

motion, labeling it a final summary judgment that disposed of all claims and all

parties. It awarded the Association $6,290.65 for unpaid maintenance assessments

and late fees and $2,097.42 in statutory damages pursuant to Texas Property Code

section 202.004(c), which permits the trial court to assess damages of up to $200

for each day a party violates a restrictive covenant. See TEX. PROP. CODE ANN.

§ 202.004(c).

3 Discussion

I. Summary Judgment Analysis

Standard of Review

We review de novo the trial court’s ruling on a motion for summary

judgment. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d

844, 848 (Tex. 2009). In a traditional motion for summary judgment, the movant

must establish that no genuine issue of material fact exists and the movant is thus

entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); KPMG Peat

Marwick v. Harrison Cnty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999).

When reviewing a summary judgment, we take as true all evidence favorable to the

nonmovant and indulge every reasonable inference in the nonmovant’s favor.

Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident

Life & Accid. Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003).

Traditional summary judgment is proper only if the movant establishes that

there is no genuine issue of material fact and that the movant is entitled to

judgment as a matter of law. TEX. R. CIV. P. 166a(c). The motion must state the

specific grounds relied upon for summary judgment. Id. A plaintiff moving for a

traditional summary judgment must conclusively prove all essential elements of its

claim. See Rhone–Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999).

4 When, as here, “a trial court’s order granting summary judgment does not

specify the grounds relied upon, [we] affirm the summary judgment if any of the

summary judgment grounds are meritorious.” FM Props. Operating Co. v. City of

Austin, 22 S.W.3d 868, 872–73 (Tex. 2000). If the appellant fails to negate every

possible ground upon which the judgment may have been granted, an appellate

court must uphold the summary judgment. See Star-Telegram, Inc. v. Doe, 915

S.W.2d 471, 473 (Tex. 1995); Ellis v. Precision Engine Rebuilders, Inc., 68

S.W.3d 894, 898 (Tex. App.—Houston [1st Dist.] 2002, no pet.).

Conclusory statements in an affidavit unsupported by facts are insufficient to

support or defeat summary judgment. Wadewitz v. Montgomery, 951 S.W.2d 464,

466 (Tex. 1997). A conclusory statement is one that does not provide the

underlying facts to support the conclusion and cannot be readily controverted.

Anderson v. Snider, 808 S.W.2d 54, 55 (Tex. 1991); Rizkallah v. Conner, 952

S.W.2d 580, 587 (Tex. App.—Houston [1st Dist.] 1997, no writ); see also Earle v.

Ratliff, 998 S.W.2d 882, 890 (Tex. 1999) (holding that witness’s affidavit is

conclusory if it fails to explain basis of witness’s statements to link his conclusions

to facts).

Analysis

Kapur contends that the Association failed to produce evidence of the

amount or validity of the maintenance assessments that it sought to recover. Deed

5 restrictions and restrictive covenants are interpreted and enforced according to the

same general rules applicable to any contract. Pilarcik v. Emmons, 966 S.W.2d

474, 478 (Tex. 1998); Bank United v. Greenway Improvement Ass’n, 6 S.W.3d

705, 707 (Tex. App.—Houston [1st Dist.] 1999, pet. denied). Deed restrictions

subjecting property to maintenance fees, liens securing a maintenance fee, and

providing a method for amending restrictions are to be liberally construed, giving

effect to the intent and purposes of the restrictions. TEX. PROP. CODE ANN.

§ 202.003; Boudreaux Civic Ass’n v. Cox, 882 S.W.2d 543, 547 (Tex. App.—

Houston [1st Dist.] 1994, no writ).

Kapur does not contest that he purchased the townhouse in 2001 and owned

it until October 2011. Nor does he contest that by purchasing the townhouse in the

Complex, he agreed to comply with its declaration of covenants. The declaration

of covenants provides that townhouse owners in the Complex must pay

maintenance assessments in monthly installments. The amount of the assessment

is set by the Association’s board of directors each year. The declaration of

covenants provides that the owner of a townhouse in the Complex is personally

liable for the assessment at the time each assessment is due and grants the

Association the right to sue to recover unpaid maintenance assessments.

The Association attached to its summary judgment motion the affidavit of its

property manager, who collects maintenance assessments as approved and imposed

6 by the Association’s board of directors. In it, the property manager avers that

Kapur owed the Association $6,290.65 in unpaid maintenance assessments and late

fees before Harris County foreclosed on the townhouse. She provides an

accounting of the maintenance assessments, and details the amounts Kapur paid

each month from January 2006 to October 2011. She avers that the amounts

charged are correct and that all Kapur’s payments were credited in the accounting.

Kapur contends that he raised a fact issue about the amount and validity of

the assessments. The only evidence Kapur produced regarding maintenance

assessments was in his affidavit, in which he averred: “I dispute the amount of

dues and assessments alleged by Plaintiff. Not all offsets and credits have been

given.” Kapur provides no particular facts on which he bases this conclusion. See

Anderson, 808 S.W.2d at 55; CA Partners v. Spears, 274 S.W.3d 51, 63 (Tex.

App.—Houston [14th Dist.] 2008, pet. denied). He does not offer any facts that

challenge the validity of the assessments, nor does he explain the offsets and

credits to which he claims to be entitled. See Earle, 998 S.W.2d at 890.

Kapur further contends that the Association failed to show that its board of

directors had approved the amounts assessed or that it gave Kapur proper notice of

the charges and increases in the amounts assessed. However, Kapur did not

contest the manager’s authority in the trial court, and he presented no evidence in

support of his argument that the association lacked authority to assess the amounts

7 owed, nor that he had not received proper notice. As he did not adduce evidence to

raise a fact issue on these matters, Kapur’s argument cannot result in reversal. See

Anderson, 808 S.W.2d at 55.

Because the affidavit lacks any factual specificity contesting the validity of

the amount of the unpaid assessments, Kapur fails to raise a fact issue. See

Wadewitz, 951 S.W.2d at 466. Accordingly, the trial court properly granted

summary judgment in favor of the Association on its claim for $6,290.65 in unpaid

maintenance assessments.

II. Counterclaims and Statutory Damages

Kapur next contends that the trial court erred in granting a final summary

judgment that purported to reject his counterclaims, because the Association did

not address them in its motion for summary judgment. “It is well settled that a trial

court cannot grant a summary-judgment motion on grounds not presented in the

motion.” Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009) (citing Sci.

Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 912 (Tex. 1997)). If a summary

judgment is intended to be final and purports to dispose of causes of action not

addressed in the summary judgment motion, the summary judgment is reversible.

See Lehmann v. Har–Con Corp., 39 S.W.3d 191, 202 (Tex. 2001); Young v.

Hodde, 682 S.W.2d 236, 237 (Tex. 1984). The trial court cannot grant more relief

than was requested by a motion for summary judgment. See Sci. Spectrum, 941

8 S.W.2d at 912; Richards v. Transocean, Inc., 333 S.W.3d 326, 331 (Tex. App.—

Houston [1st Dist.] 2010, no pet.).

Kapur asserted a counterclaim that the Association had violated its own deed

restrictions and bylaws. The Association conceded that it did not address Kapur’s

counterclaims. The Association responds instead that Kapur had failed to pay a

filing fee for the pleading in which he included his counterclaims and affirmative

defenses. But this challenge was neither raised nor proved in the trial court. A

party need not pay a filing fee for the trial court to exercise jurisdiction over the

claims. See Tanner v. Axelrad, 680 S.W.2d 851, 853 (Tex. App.—Houston [1st

Dist.] 1984, writ dism’d); Nolte v. Flournoy, 348 S.W.3d 262, 268 (Tex. App.—

Texarkana 2011, pet. denied). The Association answered Kapur’s counterclaims

and responded with its special exceptions, which the trial court denied, thus

exercising jurisdiction over the claims. See Nolte, 348 S.W.3d at 268.

Accordingly, the trial court erred in granting more relief than requested. See

Gish, 286 S.W.3d at 310. The trial court’s award of statutory damages is based on

Kapur’s breach of the deed restrictions. Because the parties made competing

claims for breach of the restrictive covenants and because the resolution of rulings

on Kapur’s counterclaims could affect the resolution of the Association’s

restrictive covenant claims, we reverse that portion of the judgment and remand the

case for further proceedings.

9 Conclusion

We hold that the trial court properly granted summary judgment on the

Association’s claim for unpaid maintenance assessments, but it granted more relief

than requested, leaving some claims unresolved. We therefore affirm the judgment

awarding the unpaid maintenance assessments, and reverse and remand the

remainder for further proceedings.

Jane Bland Justice

Panel consists of Chief Justice Radack and Justices Bland and Huddle.