Richard Summers and Sheila Summers v. Highland Composite Property Owners Association, Inc.

Opinion

NUMBER 13-10-00192-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

RICHARD SUMMERS AND SHEILA SUMMERS, Appellants,

v.

HIGHLAND COMPOSITE PROPERTY OWNERS ASSOCIATION, INC., Appellee.

On appeal from the 9th District Court of Montgomery County, Texas.

MEMORANDUM OPINION ON REHEARING Before Justices Vela, Perkes, and Hill1

Memorandum Opinion On Rehearing by Justice Hill

1 Retired Second Court of Appeals Justice John Hill assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to the government code. See TEX. GOV’T CODE ANN. § 74.003 (Vernon 2005). Richard and Sheila Summers present a motion for rehearing in which they

contend that this Court erred in its opinion by holding that Highland Composite Property

Owners Association is the prevailing party while at the same time holding that the

evidence was insufficient to establish that Highland was a valid property owners

association. Whether a party prevails turns on whether the party prevails upon the court

to award it something, either monetary or equitable. Intercontinental Group Partnership

v. KB Home Lone Star, L.P., 295 S.W.3d 650, 655 (Tex. 2009). Inasmuch as Highland

recovered a money judgment against the Summers to enforce their payment of money

indisputably owed by them under their deed restrictions, it was the prevailing party.

The Summers state that Highland is not the prevailing party, repeatedly asserting

that this Court has held that, in the absence of being a valid property owners’

association, Highland could not collect fees from homeowners and cannot execute on

the judgment. This Court has not held that Highland, in the absence of being a valid

property owners association, cannot enforce the fees from homeowners or that it could

not execute on the judgment. To the contrary, rather than reversing the judgment, we

simply modified it to show that Highland had not been shown to be a valid property

owners association and that any funds it did collect were to be paid into the registry of

the court, to be held for any entity showing that it is the entity entitled to such fees in

accordance with the deed restrictions. We deny Summers’ motion for rehearing.

JOHN HILL Justice

Delivered and filed the 1st day of December, 2011. 2