Ray A. Basaldua v. Veronica S. Guinn

• Court: Court of Appeals of Texas
• Decided: September 7, 2011
• Docket: 04-11-00166-CV
• Status: Published

Opinion

MEMORANDUM OPINION No. 04-11-00166-CV

Ray A. BASALDUA, Appellant

v.

Veronica S. GUINN, Appellee

From the 38th Judicial District Court, Medina County, Texas Trial Court No. 1004-19989-CV Honorable Camile G. Dubose, Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

Sitting: Karen Angelini, Justice Sandee Bryan Marion, Justice Steven C. Hilbig, Justice

Delivered and Filed: September 7, 2011

AFFIRMED

This is an appeal from a summary judgment rendered in favor of appellee. We affirm.

DISCUSSION

Appellant and appellee are both property owners in the Forest Woods Subdivision,

Natalia, Texas. Appellee has owned her house since July 2004, at which time the subdivision

was subject to an October 2002 “Declaration of Limitation and Restrictions” (“Declaration”) set

forth by the developer. Pursuant to the Declaration, the developer established an Architectural 04-11-00166-CV

Committee for the purpose of ensuring compliance with the limitations and restrictions. The

Declaration provided, in pertinent part, as follows:

Upon activation of the property owners association . . . all rights, duties and responsibilities of the Architectural Committee, except the right to amend these restrictions which shall terminate as to both the Architectural Committee and the property owners association, shall automatically be transferred to and vested in the Board of Directors of the property owners association, whereupon the Architectural Committee shall be and is hereby abolished.

The Forest Woods Subdivision established a property owners association in 2006.

In March 2010, the property owners association “Architectural Control Committee”

approved a request by appellee for a variance for improvements on her property that had been in

existence since 2004. 1 In August 2010, appellant sued appellee seeking a declaratory judgment

that she had violated several restrictive covenants. Appellee moved for summary judgment on

the grounds that she had received a variance from the restrictions contained in the Declaration.

Appellee attached to her motion (1) the Architectural Control Committee’s approval of her

request, (2) a copy of the Declaration, and (3) her affidavit. In her affidavit, appellee stated she

sought the variances from the Architectural Control Committee because she had received

correspondence stating her “property variances would be ‘grandfathered’ due to their existence

before the Property Owner’s Association was formed, and [she] wanted official compliance.”

Appellant responded to appellee’s motion alleging there were genuine issues of material

fact as to whether appellee was in violation of numerous restrictive covenants and as to whether

appellee was conducting noxious activity on her property. Appellant alleged the property owners

association was biased and that neither the restrictive covenants nor bylaws authorized the

property owners association to give variances for noxious activity. The only exhibits attached to

1 Appellee requested a variance to, among other things, maintain a storage shed and two horses on her property.

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his response were the same exhibits (including appellee’s affidavit) that appellee attached to her

motion. The trial court granted appellee’s motion for summary judgment.

For the first time on appeal, appellant asserts the trial court erred in granting appellee’s

motion for summary judgment because appellee and her attorney attached to her motion “forged

documents and misrepresentations of evidence.” “Issues not expressly presented to the trial

court by written motion, answer or other response shall not be considered on appeal as grounds

for reversal.” TEX. R. CIV. P. 166a(c); see also Garcia v. Garcia, 311 S.W.3d 28, 35 (Tex.

App.—San Antonio 2010, pet. denied). Thus, appellant may not raise these arguments for the

first time on appeal as a reason to reverse the summary judgment. See TEX. R. CIV. P. 166a(c);

City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979) (summary

judgment non-movant could not raise for first time on appeal additional fact issue that was not

raised in its response); Aguilar v. Trujillo, 162 S.W.3d 839, 854 (Tex. App.—El Paso 2005, pet.

denied) (issue waived where non-movant did not present it in the summary judgment response).

Nevertheless, even if we consider these arguments, appellant does not identify which

documents were forged and nothing in the record supports this allegation. As to his assertion

that the trial court’s order is based on “misrepresentations of evidence,” appellant points to

appellee’s statement in her motion that she “received an official variance from the Architectural

Committee.” Appellant argues the Architectural Committee was abolished in 2006 upon

formation of the property owners association. However, it is clear from appellee’s motion for

summary judgment that she received her variance from the Architectural Control Committee

established by the property owners association. Appellant does not dispute that the Declaration

espressly provides that “all rights, duties and responsibilities of the Architectural Committee

[were] automatically . . . transferred to and vested in the Board of Directors of the property

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owners association.” Nor does appellant contend the Architectural Control Committee is not a

duly formed committee of the property owners association’s Board of Directors. Therefore,

nothing in the record supports appellant’s allegations that appellee misrepresented evidence.

Dyson Descendant Corp. v. Sonat Exploration Co., 861 S.W.2d 942, 948 (Tex. App.—Houston

[1st Dist.] 1993, no writ) (holding conclusionary remarks are insufficient to raise fact issue to

prevent granting of summary judgment).

CONCLUSION

We conclude the grounds upon which appellant challenges the trial court’s summary

judgment lack merit. Therefore, we overrule his issue on appeal and affirm the trial court’s

judgment.

Sandee Bryan Marion, Justice

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