Summers v. Highland Composite Property Owners Ass'n

363 S.W.3d 210, 2011 WL 3805742
CourtCourt of Appeals of Texas
DecidedDecember 1, 2011
Docket13-10-00192-CV
StatusPublished
Cited by3 cases

This text of 363 S.W.3d 210 (Summers v. Highland Composite Property Owners Ass'n) 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
Summers v. Highland Composite Property Owners Ass'n, 363 S.W.3d 210, 2011 WL 3805742 (Tex. Ct. App. 2011).

Opinions

OPINION

Opinion by Justice HILL (Retired).

Richard Summers and Sheila Summers appeal from a judgment, following a trial to the court, in favor of Highland Composite Property Owners Association, Inc., for a sum representing unpaid maintenance fees, plus attorney’s fees and costs. In five issues, appellants question the right of Highland to sue to recover these fees. In a sixth conditional issue, appellants urge that if Highland does not prevail in this appeal, it should not be entitled to recover its attorney’s fees. In issues seven and eight, the appellants urge that the trial court erred in holding that appellants’ lien could be executed against their property to the full extent of the judgment, including attorney’s fees, and that the judgment fails to comply with the mandates of Rule 301 of the Texas Rules of Civil Procedure. See Tex.R. Civ. P. 301. We modify the judgment, and affirm the judgment as modified.

Appellants contend in issues one through five that: (1) the trial court mis[213]*213applied the Texas Property Code to the evidence by holding that Highland is a valid property owners association; (2) the trial court erred by holding that, as a valid property owners association, Highland has the capacity and right to enforce restrictions pursuant to Texas Property Code section 202.004(b); (3) the trial court erred in holding that Highland is a valid property owners association and that it has the right to enforce restrictions pursuant to Texas Property Code section 202.004(b); (4) the trial court erred in impliedly holding that the right and authority to enforce covenants under section 202.004(b) is the equivalent of the right and authority to execute the order of the court without distinguishing the rights and authority of a valid property owners association versus a mere designated representative of a property owner; and (5) the trial court erred in finding that Highland had the capacity to file suit against them. See Tex. PROp.Code Ann. § 202.004(b) (West 2007).

The basis of the appellants’ contention that Highland lacks authority to collect the unpaid fees from them is that Highland is not a valid property owners association and therefore does not have the capacity and right to enforce restrictions pursuant to Texas Property Code section 202.004(b). See id. However, section 202.004(b) provides that a property owners association or other representative designated by an owner of real property may initiate, defend, or intervene in litigation or an administrative proceeding affecting the enforcement of a restrictive covenant. See id.; Musgrave v. Brookhaven Property Owners Assn., 990 S.W.2d 386, 394 (Tex.App.-Texarkana 1999, pet. denied). The appellants have stipulated that four of their lots are located in the Greentree subdivision, while two of their lots are located in the Wildwood Acres subdivision. The record reflects that several property owners, including one or more from each of those subdivisions, made an affidavit designating Highland as their representative to enforce a warranty deed with vendor’s lien that all of the properties in four listed subdivisions, including Greentree and Wildwood Acres, are subject to. Consequently, as a designated representative under Texas Property Code section 202.004(b), Highland has the capacity to bring this suit to enforce the deed restrictions. See Tex. PROp.Code Ann. § 202.004(b); Musgrave, 990 S.W.2d at 394. Appellants urge that the designations of Highland to enforce deed restrictions refer to a deed whose restrictions their property is not subject to. However, in considering each designation as a whole, we find that each reflects the intention of the homeowner to designate Highland as a representative to enforce deed restrictions within his or her respective subdivision.

Appellants also insist that the designation is no longer valid because there is no evidence that the designors still owned property at the time of the filing of this suit fifteen years following the designation; that any of the designors had not withdrawn their designations; that the desig-nors intended to make a designation in view of the fact that Highland is not a valid property owners association; or that the designors were aware that the fees being collected were twice the amount authorized by the covenants of the subdivision. The appellants present no authority for their suggestion that Highland, having shown compliance with Texas Property Code section 202.004(b), was required to present such evidence.

Appellants contend that even if Highland is a designated representative with the capacity to enforce the requirement that they pay the fees required by the deed restrictions, it does not have any authorization to collect those fees for itself,

[214]*214inasmuch as it is not a valid property owners association. It is agreed that the restrictions in question establish that a fund for road maintenance and the removal of litter is to be held by a Garden Club or some other facility organized by the purchaser or grantee. The appellants acknowledge that a property owners association would be the equivalent of a Garden Club such as that referred to in the restrictions. Therefore, in order to hold the fees collected, Highland was required to show that it is a valid property owners association.

In its judgment, the trial court found that Highland is a valid property owners association. The appellants contend that there is no evidence to establish that Highland is a valid property owners association for the subdivisions in which they own property. In reviewing a “no evidence” point, we must view the evidence in a light that tends to support the finding of the disputed fact and disregard all evidence and inferences to the contrary. Bradford v. Vento, 48 S.W.3d 749, 754 (Tex.2001)

As previously noted, the deed restrictions in question do not establish Highland as the property owners association for residents of the subdivision, only noting that fees collected are to be handled by a garden club or some such facility organized by the purchaser or grantee. Section 204.006 of the Property Code deals with the creation of property owners associations. See Tex. Prop.Code Ann. § 204.006 (West 2007). It is inapplicable with respect to the restrictions in this cause because it applies only to those restrictions which require additions or modifications by a vote of more than 60% of the homeowners. See id. The restrictions at issue in this cause only require a majority vote of the homeowners in order to make additions to or modifications of the restrictions. However, even though section 204.006 of the Property Code is inapplicable, it may still be inferred from its language that the Legislature contemplates that a property owners association may be formed either by designation in the deed restrictions or by approval of the percentage of homeowners designated in the original restrictions, or by the percentage designated in the statute, in those instances where the statute is applicable. See id.

The restrictions in this cause may only be modified by a majority vote of the property owners.

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363 S.W.3d 210, 2011 WL 3805742, Counsel Stack Legal Research, https://law.counselstack.com/opinion/summers-v-highland-composite-property-owners-assn-texapp-2011.