Vijay K. Nayyer v. Greenbriar Place Maintenance Association

Opinion

Opinion issued January 17, 2008

In The

Court of Appeals

For The

First District of Texas

NO. 01-06-00566-CV

VIJAY K. NAYYER, Appellant

V.

GREENBRIAR PLACE MAINTENANCE ASSOCIATION, Appellee

On Appeal from County Civil Court at Law No. 4

Harris County, Texas

Trial Court Cause No. 815476

MEMORANDUM OPINION

In this dispute over maintenance assessments, appellant, Vijay K. Nayyer, challenges the judgment of the trial court that found in favor of appellee, Greenbriar Place Maintenance Association ("Greenbriar"). In five issues on appeal, Nayyer argues that (1) Greenbriar breached a contract; (2) the trial court erroneously determined damages; (3) the trial court erroneously determined interest; (4) the award of attorney's fees was in error; and (5) the trial court improperly denied Nayyer's claims for offsets, motion to compel, motion for continuance, and motion for new trial.

We affirm.

Background

Greenbriar, a Texas non-profit corporation, was created to act on behalf of Greenbriar Place North Venture ("GPNV"), a joint venture of RDC, Inc. and First Realty Investment Corporation. In 1981, GPNV made a Declaration of Protective Covenants (the "Declaration") that created Greenbriar to levy assessments for the operation of common areas, easements, and other responsibilities of land owned by GPNV. Nayyer owns property that is governed by the Declaration. Greenbriar asserted that Nayyer owed $18,442.10 in assessments from December 31, 2000 until December 31, 2004. Greenbriar asserted, in pertinent part, causes of action for breach of contract, and it sought attorney's fees pursuant to section 11.05 of the Declaration. Nayyer answered and argued that (1) the statute of limitations precluded Greenbriar's claims; (2) he did not receive a demand letter as required by the Declaration; (3) attorney's fees are not recoverable; (4) he offered to settle; (5) Greenbriar is in breach of their contract because (a) Nayyer has not received complete financial records of the association, (b) Nayyer did not receive a demand letter, (c) the association's maintenance obligations have not been performed, (d) Nayyer has not received annual assessment notices and meeting notices, (e) directors have been paid illegally, (f) the association has misused corporate funds, (6) "plaintiff's failure of consideration"; and (7) Greenbriar caused Nayyer duress and emotional suffering for its unlawful demands and discriminatory treatment. Nayyer also filed a counterclaim for (1) through (7) mentioned above.

On July 25, 2005, the case proceeded to trial. On August 11, 2005, the trial court signed a final judgment in favor of Greenbriar that awarded $25,339.45 in actual damages and $8,000 in attorney's fees. Greenbriar filed a motion for new trial asserting that the trial court erred by awarding only $8,000 in attorney's fees because the evidence conclusively established that total attorney's fees were $18,997.95, and it was not controverted. On September 28, 2005, the trial court granted Greenbriar's motion for new trial. After the new trial, on March 10, 2006, the trial court signed a final judgment in favor of Greenbriar, awarding $21,157.88 for actual damages, $20,000 in attorney's fees, prejudgment interest, and $5,000 in attorney's fees in the event of an appeal to the Supreme Court of Texas.

On May 2, 2006, the trial court issued the following pertinent findings of fact:

3. On or about October 1, 1981, [Greenbriar] was created as a Texas non-profit corporation acting on behalf of Greenbriar Place North Venture, a joint venture of RDC, Inc. and First Realty Investment, Corp. On that day, a Declaration of Protective Covenants ("Declaration") was executed, with said Covenants being applicable to all the property located in Greenbriar Place North, Section One.

4. Under the Declaration, [Greenbriar] is empowered with the authority to levy maintenance assessments as necessary for the operation of the common areas, easements, and other responsibilities in Greenbriar Place North, Section One. The specific authority to levy maintenance assessments is found in Article XI of the Declaration. The tract of land in question owned by NAYYER is part of the property over which [Greenbriar] has such authority. Additionally, [Greenbriar] is empowered to attach a lien against any property under its authority to insure payment by the property owner of said maintenance assessments.

5. Pursuant to its authority under the Declaration, [Greenbriar] levied a maintenance assessment against NAYYER's property in the amount of $3,688.42 on December 31, in each of the following years: 2000, 2001, 2002, 2003, and 2004. NAYYER did not pay these maintenance assessments. [Greenbriar] also assessed various late fees and service charges, which resulted in NAYYER owing a total amount of $25,339.45. NAYYER made a partial payment at some point but after all offsets and credits, NAYYER still owes [Greenbriar] $21,157.88.

6. [Greenbriar] sent NAYYER three (3) separate letters demanding payment of the maintenance assessment amounts owed but NAYYER failed to make the demanded payments. Those letters were sent to NAYYER on August 2, 2002, July 30, 2003 and February 3, 2005, all of these dates being more than 30 days before the trial of this cause.

7. Pursuant to Article 1.05 of the Declaration, [Greenbriar] is entitled to recover its reasonable attorneys fees and costs associated with the collection of any maintenance assessments. [Greenbriar] incurred reasonable and necessary attorney's fees of $20,000.00 in collecting the maintenance assessments, late fees, and service charges owed by NAYYER.

The trial court made the following pertinent conclusions of law:

2. That the Declaration is a valid and binding agreement between [Greenbriar] and NAYYER which affects NAYYER's property located in Greenbriar Place North, Section One.

3. NAYYER breached the contract between the parties when he failed to pay the annual maintenance assessments levied by [Greenbriar] in the years 2000 through 2004, inclusive.

4. [Greenbriar] has suffered damages in the amount of $21,157.88 as a result of NAYYER's breach and is entitled to recover those damages.

6. [Greenbriar] sought and is entitled to recover from NAYYER $20,000 as reasonable and necessary attorney's fees for the trial of this cause.

10. NAYYER did not prove by a preponderance of the evidence his affirmative defense of breach of contract.

11. NAYYER did not prove by a preponderance of the evidence his affirmative defense of statute of limitations.

12. NAYYER did not prove by a preponderance of the evidence his affirmative defense of failure of consideration.

13. NAYYER did not prove by a preponderance of the evidence his affirmative defense of duress and emotional sufferings.

14. NAYYER did not prove by a preponderance of the evidence his affirmative defense of failure to meet conditions for recovery of attorney's fees.

15. NAYYER did not prove by a preponderance of the evidence his affirmative defense of failure to demand payment of debt.

16. NAYYER did not prove by a preponderance of the evidence his affirmative defense of offers of settlement.

Standard of Review

In an appeal of a judgment rendered after a bench trial, the trial court's findings of fact have the same weight as a jury's verdict, and we review the legal and factual sufficiency of the evidence used to support them just as we would review a jury's findings. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994); In re K.R.P., 80 S.W.3d 669, 673 (Tex. App.--Houston [1st Dist.] 2002, pet. denied). When challenged, a trial court's findings of fact are not conclusive if, as in the present case, there is a complete reporter's record. In re K.R.P., 80 S.W.3d at 673; Amador v. Berrospe, 961 S.W.2d 205, 207 (Tex. App.--Houston [1st Dist.] 1996, writ denied). When a party without the burden of proof at trial challenges the legal sufficiency of the evidence, we consider all of the evidence in the light most favorable to the prevailing party, indulging every reasonable inference in that party's favor. Assoc. Indem. Corp. v. CAT Contracting, Inc., 964 S.W.2d 276, 285-86 (Tex. 1998). If there is any evidence of probative force to support the finding, i.e., more than a mere scintilla, we will overrule the issue. Formosa Plastics Corp. USA v. Presidio Eng'rs & Contractors, Inc., 960 S.W.2d 41, 48 (Tex. 1998). In our review of the factual sufficiency of the evidence, we must consider and weigh all of the evidence, and we will set aside a verdict only if the finding is so against the great weight and preponderance of the evidence, that it is clearly wrong and unjust. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996). We review a trial court's conclusions of law de novo. In re Moers, 104 S.W.3d 609, 611 (Tex. App.--Houston [1st Dist.] 2003, no pet.). We independently evaluate a trial court's conclusions to determine their correctness, and we will uphold conclusions on appeal if the judgment can be sustained on any legal theory supported by the evidence. Id.

Analysis

Breach

In his first issue, Nayyer argues that the evidence showed that Greenbriar breached the Declaration. Nayyer argues that Greenbriar had maintenance obligations which were not performed from the years 2000 to 2003. He also contends that Greenbriar breached the Declaration because he "never received any notices of the Association Board Members Selection Meetings, neither [has he] received any notices of the Annual Meetings." We construe Nayyer's arguments to be a challenge to the trial court's tenth conclusion of law, which held that Nayyer did not prove his breach of contract counterclaim by a preponderance of the evidence.

Nayyer relies on the testimony of John Perrone, a CPA for Greenbriar. Perrone testified that no maintenance occurred in 2001 or 2002. Perrone testified that the county had previously mowed the property but that Greenbriar had no money because certain property owners had not paid their assessments over the years. Nayyer disputes Perrone's claim that the Association had no money in its account.

The elements for breach of contract are (1) the existence of a valid contract, (2) the plaintiff's performance or tendered performance, (3) the defendant's breach of the contract, and (4) damages as a result of the breach. Wright v. Christian & Smith, 950 S.W.2d 411, 412 (Tex. App.--Houston [1st Dist.] 1997, no writ). Nayyer presented no evidence that he performed under the terms of the Declaration and no evidence of his damages. Accordingly, we conclude that the trial court's tenth conclusion of law is correct.

We overrule Nayyer's first issue.

Offset

In his second issue, Nayyer argues that the trial court's award of $21,157.88 was incorrect because it did not take his offsets into account. Specifically, Nayyer argues that the Association

collected more assessments (counter to the Declaration, Article XI, 11.01) which were not expensed for each of the Years 2000 through 2004. . . . Therefore, the Association generat[ed] Income of $37,161, $46,318, $33,277, $26,749 and $4,907 for Years 2000 thru 2004 respectively. Appellant has a proportionate [share] of its ownership Claim/Offset for this excess Association Collection (Income) . . . ."

Here, the trial court made no findings or conclusions on Nayyer's affirmative defense of offset. The record does not indicate that Nayyer requested additional findings of fact or conclusions of law on his affirmative defense. If a trial court's original findings do not include any findings on a party's defense, the party relying on that defense must request additional findings of fact or the defense is waived. Texmarc Conveyor Co. v. Arts, 857 S.W.2d 743, 747 (Tex. App.--Houston [14th Dist.] 2000, no pet.); Cotten v. Weatherford Bancshares, Inc., 187 S.W.3d 687, 708-09 (Tex. App.--Fort Worth 2006, pet. denied); see also Tex. R. Civ. P. 298. Thus, Nayyer has not preserved this issue.

We overrule Nayyer's second issue.

Interest

In his third issue, Nayyer argues that Greenbriar's charge of 12 percent interest on the overdue assessments is incorrect.

The trial court made no findings or conclusions on Nayyer's dispute regarding the interest calculation. The record does not show that Nayyer requested additional findings of fact or conclusions of law on this issue. Accordingly, Nayyer has not preserved this issue. Texmarc, 857 S.W.2d at 747; Cotten, 187 S.W.3d at 708-09; see also Tex. R. Civ. P. 298.

We overrule Nayyer's third issue.

Attorney's Fees

In his fourth issue, Nayyer argues that the trial court's award of attorney's fees was unnecessary and unreasonable. Within his fourth issue, Nayyer raises two sub-issues. First, he argues that section 16.004 of the Texas Civil Practice and Remedies Code precludes the trial court from awarding attorney's fees to Greenbriar. Second, he argues that section 42.004 of the Texas Civil Practice and Remedies Code and Rule 167 of the Texas Rules of Civil Procedure preclude the trial court from awarding litigation costs. We address these in turn.

In his first sub-issue, Nayyer argues that section 16.004 of the Texas Civil Practice and Remedies Code precludes the trial court from awarding attorney's fees to Greenbriar. Section 16.004 provides a four-year statute of limitations when a party attempts to collect on a debt. See Tex. Civ. Prac. & Rem. Code Ann. § 16.004 (Vernon 2002). However, as demonstrated in the trial court's fifth finding of fact, the attorney's fees were awarded for Nayyer's failure to pay a debt for the years of 2000 to 2004. Greenbriar's attempt to collect was within the four-year statute of limitations. Thus, we overrule Nayyer's first sub-issue.

In his second sub-issue, Nayyer argues that section 42.004 of the Texas Civil Practice and Remedies Code and Rule 167 of the Texas Rules of Civil Procedure preclude the trial court from awarding litigation costs. Section 42.004 provides that "if a settlement offer is made and rejected and the judgment to be rendered will be significantly less favorable to the rejecting party than was the settlement offer, the offering party shall recover litigation costs from the rejecting party." Tex. Civ. Prac. & Rem. Code Ann. § 42.004 (Vernon Supp. 2007). A judgment will be significantly less favorable to the rejecting party than is the settlement offer if: (1) the rejecting party is a claimant and the award will be less than 80 percent of the rejected offer; or (2) the rejecting party is a defendant and the award will be more than 120 percent of the rejected offer. Id.

Here, Nayyer attempted to settle for $26,000. The trial court's judgment awarded $21,157.88 in actual damages and $20,000 in attorney's fees. Nayyer's settlement offer was not within 80 percent of the trial court's judgment. Thus, we overrule Nayyer's second sub-issue.

We overrule Nayyer's fourth issue.

Denial of Motions

In his fifth issue, Nayyer argues four sub-issues. In his first sub-issue, Nayyer argues that the trial court erred in denying him offsets. In his second sub-issue, Nayyer argues that the trial court erred in denying his motion for continuance. In his third sub-issue, Nayyer argues that the trial court erred in denying his motion to compel. In his fourth sub-issue, Nayyer argues that the trial court erred in denying his motion for new trial. We need not address Nayyer's first sub-issue because we have already concluded that his offset issue was not preserved. We address his remaining sub-issues in turn.

In his second and third sub-issues, Nayyer contends that the trial court erred in denying his motion for continuance and his motion to compel.

The appellate record consists of the clerk's record and, if necessary to the appeal, the reporter's record. Tex. R. App. P. 34.1. The attachment of documents as exhibits or appendices to briefs is not formal inclusion in the record on appeal, and, therefore, the documents cannot be considered. Till v. Thomas, 10 S.W.3d 730, 734 (Tex. App.--Houston [1st Dist.] 1999, no pet.); Nguyen v. Intertex, Inc., 93 S.W.3d 288, 293 (Tex. App.--Houston [14th Dist.] 2002, no pet.). The appellate record does not contain a motion to compel. Attached to Nayyer's brief are a number of documents, including a motion to compel. However, because the motion to compel is not part of the appellate record in this case, we may not consider it. See Wright v. Sage Engineering, Inc., 137 S.W.3d 238, 254 (Tex. App.--Houston [1st Dist.] 2004, no pet.).

Regarding his motion for continuance, Nayyer neither requested a hearing on the motion nor obtained a ruling from the trial court. A party moving for continuance must obtain a written ruling on its motion in order to preserve a complaint for appellate review. See Tex. R. App. P. 33.1; Mitchell v. Bank of Am., N.A., 156 S.W.3d 622, 625-26 (Tex. App.--Dallas 2004, pet. denied). Because Nayyer did not obtain a written ruling on his motion for continuance, he failed to preserve this complaint for appellate review. See Tex. R. App. P. 33.1.

We overrule Nayyer's second and third sub-issues.

In his fourth sub-issue, Nayyer argues that the trial court erred in denying his motion for new trial.

The standard of review of the denial of a motion for new trial is abuse of discretion. Champion Int'l Corp. v. Twelfth Court of Appeals, 762 S.W.2d 898, 899 (Tex. 1988) (orig. proceeding). A trial court abuses its discretion when it acts in an arbitrary or unreasonable manner, or if it acts without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).

In his motion for new trial, Nayyer contends that Greenbriar breached the Declaration and that the attorney's fees awarded were unreasonable. Because we have already concluded that Nayyer presented legally insufficient evidence of Greenbriar's breach of the Declaration, we conclude that the trial court did not abuse its discretion in overruling Nayyer's motion for new trial on this ground. Because Nayyer's complaint on the award of attorney's fees is contingent on Greenbriar's breach of the Declaration, we also conclude that the trial court did not abuse its discretion in overruling Nayyer's motion for new trial on the issue of attorney's fees. We overrule Nayyer's fourth sub-issue.

We overrule Nayyer's fifth issue on appeal.

Conclusion

We affirm the judgment of the trial court.

Evelyn V. Keyes

Justice

Panel consists of Justices Nuchia, Jennings, and Keyes.