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
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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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