ACCEPTED
01-15-00429-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
9/11/2015 12:00:31 PM
CHRISTOPHER PRINE
CLERK
No. 01-15-00429-CV
FILED IN
1st COURT OF APPEALS
In The First District Court of Appeals HOUSTON, TEXAS
Houston, Texas 9/11/2015 12:00:31 PM
CHRISTOPHER A. PRINE
Clerk
Eileen K. Starbranch,
Appellant,
v.
Elizabeth Howard Crowell,
Appellee.
On Appeal from the 55th Judicial District Court
Harris County, Texas
Cause No. 2013-14192
BRIEF OF APPELLANT
Nelson S. Ebaugh
NELSON S. EBAUGH, P.C.
2777 Allen Parkway, Ste. 1000
Houston, Texas 77019
Tel. (713) 752-0700
Fax (713) 739-0500
nebaugh@ebaughlaw.com
Texas Bar Card No. 24007139
ATTORNEY FOR APPELLANT
Oral Argument Requested
IDENTITY OF PARTIES AND COUNSEL
Appellant: Eileen K. Starbranch
Trial and Appellate Counsel Nelson S. Ebaugh
for Appellant: NELSON S. EBAUGH, P.C.
2777 Allen Parkway, Ste. 1000
Houston, Texas 77019
Appellee: Elizabeth Howard Crowell
Trial and Appellate Counsel John B. Shely
for Appellee: Courtney B. Glaser
ANDREWS KURTH, LLP
600 Travis, Suite 4200
Houston, TX 77002
i
TABLE OF CONTENTS
Page
Identity of Parties and Counsel ............................................................................. i
Index of Authorities ..............................................................................................v
Statement of the Case.......................................................................................... xi
Issue Presented ................................................................................................... xii
Statement of the Facts ...........................................................................................1
A. Overview ..................................................................................................1
B. The parties and their relationships ...........................................................1
C. Neighbors ask Starbranch to execute signature pages for the
Association ...............................................................................................3
D. Crowell files suit ......................................................................................4
E. Termination of the Association in 2013...................................................5
F. The trial court grants Crowell’s Motion for Summary Judgment
on Attorney’s Fees against Starbranch ....................................................7
G. The trial court grants Starbranch’s motion to dismiss Crowell’s
action for declaratory judgment as moot .............................................. 12
H. Order and Final Judgment leads to this appeal ..................................... 12
Summary of Argument ...................................................................................... 14
Argument............................................................................................................ 16
A. The Declaratory Judgments Act cannot be used as a vehicle to
obtain otherwise impermissible attorneys’ fees .................................... 17
ii
B. The trial court improperly usurped the jury’s fact-finding role
during a summary-judgment proceeding .............................................. 21
C. The attorneys’ fees are neither equitable nor just ................................. 25
1. The trial court awarded attorneys’ fees before it even declared
the representative rights and interests of Crowell and
Starbranch ........................................................................................ 26
2. It is inequitable and unjust to award attorneys’ fees against a
person who was not even a proper party to the declaratory
judgment action ................................................................................ 29
3. There is no evidence that Starbranch prolonged the case or
prevented a complete and final resolution to this case .................... 33
D. The summary judgment evidence raised genuine issues of
material fact ........................................................................................... 36
1. The affidavit of Nelson S. Ebaugh raised genuine issues of
material fact...................................................................................... 37
2. The affidavit of Eileen K. Starbranch raised genuine issues of
material fact...................................................................................... 39
3. Genuine issues of material fact necessarily existed because the
trial court sustained Starbranch’s objections to Crowell’s
failure to segregate ........................................................................... 40
4. Crowell’s own evidence established the existence of genuine
issues of material fact....................................................................... 42
E. The trial court abused its discretion by considering evidence filed
after the submission date and which Starbranch did not have the
opportunity to controvert ...................................................................... 43
F. The trial court granted more relief than was requested in
Crowell’s Motion for Summary Judgment on Attorneys’ Fees............ 46
Conclusion and Prayer ....................................................................................... 49
iii
Certificate of Compliance .................................................................................. 51
Certificate of Service ......................................................................................... 51
Appendix ............................................................................................................ 52
iv
INDEX OF AUTHORITIES
Page
Cases
Adiuku v. Ikemenefuna ex rel. Ada Mbaise Ass’n of Houston,
No. 14–13–00722–CV, 2015 WL 778487, *12
(Tex. App.—Houston [14th Dist.] Feb. 24, 2015, no pet.) .......................... 24
Almaguer v. Jenkins,
882 S.W.2d 903, 904
(Tex. App.—Corpus Christi 1994, no writ).................................................. 22
AMX Enters., L.L.P. v. Master Realty Corp.,
283 S.W.3d 506
(Tex. App.—Fort Worth 2009, no pet.) ........................................................ 41
Arkoma Basin Exploration Co. v. FMF Assocs. 1990-A Ltd.,
249 S.W.3d 380 (Tex. 2008) ........................................................................ 34
Armbruster v. Memorial Southwest Hosp.,
857 S.W.2d 938
(Tex. App.—Houston [1st Dist.] 1993, no writ) .......................................... 42
Beavers v. Goose Creek Consol. I.S.D.,
884 S.W.2d 932, 935
(Tex. App.—Waco, 1994, writ denied) ........................................................ 43
Bocquet v. Herring,
972 S.W.2d 19 (Tex. 1998)............................................. 22, 23, 25, 26, 35, 37
Bonham State Bank v. Beadle,
907 S.W.2d 465 (Tex. 1995) ........................................................................ 32
Ca Partners v. Spears,
274 S.W.3d 51, 81
(Tex. App.—Houston [14th Dist.] 2008, pet. denied) .................................. 40
Caldwell v. Carrollton Air Conditioning, Inc.,
No. 07-05-0241-CV, 2007 WL 2390425 *6
(Tex. App.—Amarillo Aug. 22, 2007, pet. denied) (mem. op.) ................... 43
v
Carpenter v. Cimarron Hydrocarbons Corp.,
98 S.W.3d 682 (Tex. 2002)..................................................................... 43, 48
City of Carrollton v. RIHR Inc.,
308 S.W.3d 444
(Tex. App.—Dallas 2010, pet. denied) ......................................................... 27
Crown Asset Management, LLC v. Short,
No. 01-08-00042-CV, 2009 WL 1025729
(Tex. App.—Houston [1st Dist.] Apr. 16, 2009, no pet.)
(mem. op.) ................................................................................................. 28, 35
Engel v. Pettit,
713 S.W.2d 770, 771-73
(Tex. App.—Houston [14th Dist.] 1986, no writ) ........................................ 38
Extended Servs. Program, Inc. v. First Extended Serv. Corp.,
601 S.W.2d 469
(Tex. Civ. App.—Dallas 1980, writ ref’d n.r.e.) .......................................... 46
Fuqua v. Oncor Elec. Delivery Co.,
315 S.W.3d 552, 559-60
(Tex. App.—Eastland 2010, pet. denied) ................................................ 21, 22
Garland v. Dallas Morning News,
22 S.W.3d 351, 367 (Tex.2000) ................................................................... 22
General Elec. Supply Co. v. Gulf Electroquip, Inc.,
857 S.W.2d 591
(Tex. App.—Houston [1st Dist.] 1993, writ denied) .............................. 23, 36
Goldman v. Olmstead,
414 S.W.3d 346
(Tex. App.—Dallas 2013, pet. denied) ......................................................... 40
Guity v. C.C.I. Enter., Co.,
54 S.W.3d 526
(Tex. App.—Houston [1st Dist.] 2001, no pet.) ........................................... 36
vi
Hahn v. Love,
321 S.W.3d 517
(Tex. App.—Houston [1st Dist.] 2009, pet. denied) .................................... 19
Highland Capital Mgmt., L.P. v. Ryder Scott Co.,
402 S.W.3d 719
(Tex. App.—Houston [14th Dist.] 2012, no pet.)......................................... 47
Hourani v. Katzen,
305 S.W.3d 239
(Tex. App.—Houston [1st Dist.] 2009, pet. denied) .................................... 49
Jay Petroleum, L.L.C. v. EOG Res., Inc.,
332 S.W.3d 534
(Tex. App.—Houston [1st Dist.] 2009, pet. denied) .................................... 36
Kennesaw Life & Accident Ins. Co. v. Goss,
694 S.W.2d 115
(Tex. App.—Houston [14th Dist.] 1985, writ ref’d n.r.e.) ..................... 27, 32
LaGoye v. Victoria Wood Condo Ass’n,
112 S.W.3d 777
(Tex. App.—Houston [14th Dist.] 2003, no pet.)......................................... 49
MBM Fin. Corp. v. Woodlands Operating Co.,
292 S.W.3d 660 (Tex. 2009) ........................................................................ 17
McConnell v. Southside Indep. Sch. Dist.,
858 S.W.2d 377 (Tex. 1993) .................................................................. 46, 47
McGlown v. Ashford Park Homeowners Asso’, Inc.,
No. 01-08-00619-CV, 2009 WL 1635310
(Tex. App.—Houston [1st Dist.] Jun. 11, 2009, no pet.)
(mem. op.) ............................................................................................... 24, 25
Mortg. Elec. Registration Sys., Inc. v. Groves,
No. 14-10-00090-CV, 2011 WL 1364070
(Tex. App.—Houston [14th Dist.] Apr. 12, 2011, pet. denied)
(mem. op.) ..................................................................................................... 19
vii
Parker v. Hunegnaw,
364 S.W.3d 398
(Tex. App.—Houston [14th Dist.] 2012, no pet.)......................................... 18
Pentico v. Mad-Wayler, Inc.,
964 S.W.2d 708
(Tex. App.—Corpus Christi 1998, pet. denied) ........................................... 23
Positive Feed, Inc. v. Guthmann,
4 S.W.3d 879
(Tex. App.—Houston [1st Dist.] 1999, no pet.) ........................................... 49
Reiner v. Ehrlich,
66 A.3d 1132 (Md. Ct. Spec. App. 2013) ............................................... 30, 31
Sams v. N.L. Indus., Inc.,
735 S.W.2d 486
(Tex. App.—Houston [1st Dist.] 1987, no writ) .......................................... 45
Sanders v. Capitol Area Council,
930 S.W.2d 905
(Tex. App.—Austin 1996, no writ) .............................................................. 45
SW. Guar. Trust Co. v. Hardy Road 13.4 Joint Venture,
981 S.W.2d 951
(Tex. App.—Houston [1st Dist.] 1998, pet. denied) .................. 18, 19, 20, 21
State v. Heal,
917 S.W.2d 6 (Tex. 1996)....................................................................... 16, 25
State & County Mut. Fire Ins. Co. ex rel. S. United Gen. Agency of
Tex. v. Walker,
228 S.W.3d 404
(Tex. App.—Fort Worth 2007, no pet.) .................................................. 26, 29
Stewart Title Guar. Co. v. Sterling,
822 S.W.2d 1 (Tex. 1991)............................................................................. 37
viii
Tanglewood Homes Ass’n, Inc. v. Feldman,
436 S.W.3d 48
(Tex. App.—Houston [14th Dist.] 2014, pet. denied) .................................. 28
Texan Dev. Co. v. Hodges,
237 S.W.2d 436
(Tex. Civ. App.—Amarillo 1951, no writ) ................................................... 19
Tex. Div.-Tranter v. Carrozza,
876 S.W.2d 312 (Tex. 1994) ........................................................................ 34
Tony Gullo Motors I, L.P. v. Chapa,
212 S.W.3d 299 (Tex. 2006) .................................................................. 40, 41
U.S. Nat’l Bank Ass’n v. Johnson,
No. 01-10-00837-CV, 2011 WL 6938507
(Tex. App.—Houston [1st Dist.] De. 30, 2011, no pet.) (mem. op.) ........... 18
Universal Printing Co. v. Premier Victorian Homes, Inc.,
73 S.W.3d 283
(Tex. App.—Houston [1st Dist.] 2001, pet. denied) .................................... 21
Valence Operating Co. v. Dorsett,
164 S.W.3d 656 (Tex. 2005) ........................................................................ 16
VICC Homeowners’ Ass’n v. Los Campeones, Inc.,
143 S.W.3d 832
(Tex. App.—Corpus Christi 2004, no pet.) .................................................. 27
Walker v. Packer,
827 S.W.2d 833 (Tex. 1992) (orig. proceeding) .......................................... 25
Wheeler v. Green,
157 S.W.3d 439, 442 (Tex.2005) ................................................................. 43
White Motor Co. v. Loden,
373 S.W.2d 863, 865
(Tex. Civ. App.—Dallas 1963, no writ) ....................................................... 22
ix
Wise v. Conklin,
No. 01-13-00840-CV, 2015 WL 1778612
(Tex. App.—Houston [1st Dist.] Apr. 16, 2015, no pet. h.) (mem. op.) ...... 20
Yancy v. United Surgical Partners Intl., Inc.,
236 S.W.3d 778 (Tex. 2007) ........................................................................ 16
Statues
Md. Code Ann., Cts. & Jud. Proc. § 5-422 ........................................................ 30
Tex. Bus. Orgs. Code § 22.152 .................................................................... 30, 31
Tex. Bus. Orgs. Code § 22.221 .......................................................................... 30
Tex. Bus. Orgs. Code § 22.235 .......................................................................... 30
Tex. Civ. Prac. & Rem. Code § 37.009 ................................................. 21, 25, 28
Tex. Prop. Code § 204.006 ........................................................................ 2, 3, 32
Rules
Tex. R. Civ. P. 5 ........................................................................................... 43, 48
Tex. R. Civ. P. 21(b) .......................................................................................... 45
Tex. R. Civ. P. 166a ........................................................................................... 46
Tex. R. Civ. P. 166a(c) .......................................................................... 36, 47, 49
Other Authorities
2 TEX. PRAC. GUIDE CIVIL TRIAL § 14:25 (Thomson Reuters 2014) ................ 22
65 AM. JUR. 2d Quieting Title § 63 (Database updated May 2015) ............ 30, 31
74 C.J.S. Quieting Title § 3 (April 2015)........................................................... 19
BLACK’S LAW DICTIONARY 308 (9th ed. 2009) ................................................. 34
x
STATEMENT OF THE CASE
Nature of the Case: Elizabeth Howard Crowell sued twenty-seven
defendants, including Eileen K. Starbranch, in
connection with a property owners’ association that
was allegedly invalidly formed. CR6-25.
Trial Court: The Honorable Jeff Shadwick, 55th District Court,
Harris County, Texas, cause number 2013-14192.
Trial Court Proceedings: In 2013, Crowell settled with all of the defendants,
except for Starbranch. CR866-908 (App. 4). In 2015,
Crowell filed her Motion for Summary Judgment on
Attorneys’ Fees against Starbranch. CR366-674.
Subsequently, Starbranch filed a motion to dismiss
Crowell’s action for declaratory judgment arguing the
claim was moot. 1st Supp. CR7-122.
Trial Court’s Disposition: The trial court did not find Starbranch liable to
Crowell or declare the respective rights and interests of
Crowell and Starbranch. However, the trial court did
grant Crowell’s Motion for Summary Judgment on
Attorneys’ Fees, in part, awarding attorneys’ fees in
the amount of $26,462.00 against Starbranch. CR917.
The order became final and appealable on April 28,
2015, when the trial court entered a final judgment
denying Starbranch’s motion for reconsideration and
motion to dismiss. CR1059-60.
xi
ISSUE PRESENTED
Did the trial court err by granting Crowell’s Motion for Summary Judgment
on Attorneys’ Fees?
A. Did the trial court err by awarding attorneys’ fees when Crowell’s claim for
declaratory relief merely duplicated the issues set forth in her action to quiet
title?
B. Did the trial court err by deciding a fact question on reasonable and
necessary attorneys’ fees that was reserved for the jury?
C. Did the trial court abuse its discretion by awarding fees that were neither
equitable nor just?
D. Did the trial court err by granting any relief to Crowell because there were
fact issues as to the amount of reasonable and necessary attorneys’ fees?
E. Did the trial court abuse its discretion by considering evidence filed after the
submission date and which Starbranch did not have the opportunity to
controvert?
F. Did the trial court err by granting more relief than was requested in
Crowell’s motion?
xii
STATEMENT OF THE FACTS
A. Overview
This appeal arises from Appellee Elizabeth Howard Crowell’s suit to quite
title and declaratory judgment action seeking the same relief. CR19-21. Crowell
sued a property owners’ association, its officers and directors, and all of the
association members, claiming the association was not properly formed. CR6-25.
Among the defendants was Appellant Eileen K. Starbranch, who was not an
officer or director but instead a mere member of the association. CR6-25.
Starbranch has never been found liable for anything, and the trial court made no
declarations concerning the respective rights and interests of Crowell and
Starbranch. CR1040 (App. 2); CR1059-60 (App. 1). Crowell’s suit to quiet title,
and her duplicative declaratory judgment action, were dismissed without any
finding of liability or declaration against Starbranch. CR1040 (App. 2); CR1059-
60 (App. 1).
Yet the trial court, on summary judgment, ordered Starbranch to pay
Crowell $26,462.00 in attorneys’ fees. CR917 (App. 3). That order underlies
Starbranch’s appeal, and the facts germane to this appeal are as follows:
B. The parties and their relationships
In March 2009, Crowell acquired over 25,000 square feet of property in the
Jandor Gardens subdivision with the following address: 5326 Institute Lane,
1
Houston, Texas 77005 (hereinafter, the “Property”). CR75; 92. Crowell and all
of the defendants, including Starbranch, are homeowners in the Jandor Gardens
subdivision. CR7-9.
In 2012, several of the homeowners in Jandor Gardens formed a property
owners’ association for Jandor Gardens. CR99-124. The name of the property
owners’ association was the “Jandor Gardens Association, Inc.,” a Texas nonprofit
corporation (hereinafter, the “Association”). CR100.
To form a property owners’ association, a petition committee must be
formed first. Tex. Prop. Code § 204.006(a). Defendants Anna Stock, Fred Sharifi,
and Wyman H. Herendeen served on the petition committee for the Association.
CR154-157. Defendant Ron Whitte incorporated the Association. CR217-21.
Defendants Rick Rambo, Ron Witte, and Wyman H. Herendeen served as the
initial directors for the Association. CR101; 191; 218-219.
Starbranch did not serve as either an officer or a director for the Association.
CR217-21. In addition, Starbranch did not serve on the petition committee for the
Association. CR154-157. Instead, Starbranch was simply a member of the
Association. CR755-58; 181; 211; 260; 302.
Starbranch has never asserted any interest in Crowell’s Property. CR758. In
fact, Starbranch has disclaimed any and all interest in Crowell’s Property. CR758.
2
C. Neighbors ask Starbranch to execute signature pages for the
Association.
It was not Starbranch’s idea to form the Association. CR755-58. On or
about November 8, 2012, Starbranch was in her vehicle exiting her garage onto
Dora Street, one of the streets in Jandor Gardens. CR756. While doing so, about
four or five people claiming to be homeowners in Jandor Gardens stopped her and
stated that they were forming the Association. CR756. They asked Starbranch to
execute one of more signature pages in connection with the Association. CR756.
Starbranch executed the signature pages presented to her. CR181; 211; 260; 302.
On or about November 18, 2012, Starbranch noticed that one or more
signature pages in connection with the Association were left on her front doorstep.
CR756. Starbranch picked up the document, signed where necessary, and then left
the document on her front doorstep. CR756.
Starbranch did not sign two of the instruments that Crowell sought to declare
as void in the trial court. Starbranch did not sign the “Notice of Formation of
Petition Committee”1 or the “Petition Pursuant to Property Code § 204.006 To
Create The Jandor Gardens Association, Inc.,” 2 which were the subjects of the first
and fourth declarations sought by Crowell in her later suit to quiet title and
duplicative declaratory judgment action. CR20.
1
CR154-57.
2
CR100-04.
3
Starbranch never proposed or circulated the instruments that created the
Association. CR756. In addition, Starbranch did not file any instruments in the
Harris County real property records in connection with the Association. CR756.
In short, Starbranch did nothing more than give her okay to the Association idea
proposed by others. CR755-58.
D. Crowell files suit.
In her Original Petition, Crowell asserted an action to quiet title against all
of the defendants, including Starbranch, wherein she alleged as follows:
the documents filed by Defendants [including Starbranch] in the real
property records (see Harris County Clerk File Nos. 20120521806,
20120521807, 20120521808, 201205436661, and 2012054016216)
are clouds or encumbrances on Ms. Crowell’s right of ownership of
the Property, which affect impair Ms. Crowell's title to the Property.
Ms. Crowell seeks to nullify the effect of these disputed filings and
encumbrances. Ms. Crowell is entitled to a judgment that sets aside
these improper filings and removes them as clouds on her title.
CR21.
Crowell sought the same the relief in her claim for declaratory relief against all of
the defendants, including Starbranch. CR19-20. On April 7, 2013, a jury trial was
requested and the jury fee was paid. CR56-58; 1093.
The following defendants did nothing more that than approve instruments
prepared by the Association: Eileen K. Starbranch, George L. Parker, Eva K.
Parker, Garret S. Madderra, Georgia W. Hitchcock, James Carper, and Eric
4
Mazziotta. CR106-114; 167-185; 197-215; 246-264; 275-283; 293-302. Crowell
later dismissed each of these defendants, except for Starbranch, from the lawsuit.
CR26-46; 59-61; 65-68; 72-74.
The Association was never Starbranch’s idea, and she did not oppose the
relief that Crowell sought in her action to quiet title and in her declaratory
judgment action (although Starbranch did contest her liability). CR724-810. In
fact, upon learning that Crowell wanted Starbranch to execute a Rescission of Real
Property Filings in connection with the Association, Starbranch voluntarily
executed the same and filed it in the real property records. CR755-767.
E. Termination of the Association in 2013.
On June 24, 2013, Crowell filed her Motion for Summary Judgment as to
Liability against several of the defendants in this lawsuit. CR75-344. In her
summary judgment motion, Crowell sought partial summary judgment on her
action for declaratory judgment and her action to quiet title. CR75-344; 368.
On August 19, 2013, this Court granted Crowell’s Motion for Summary
Judgment as to Liability against several of the defendants in the lawsuit. CR345-
346. However, because Starbranch had not made an appearance in this lawsuit
when the Motion for Summary Judgment as to Liability was filed and granted, the
order granting partial summary judgment was not entered against Starbranch.
5
CR722-23. Starbranch has never been found liable for anything. CR1059-60
(App. 1).
On October 15, 2013, Crowell entered into a settlement agreement with the
Association, Sarah Whiting, Ron Witte, Lawrence E. Plotsky, Rick Rambo,
Frances Rambo, David D. Stock, Anna L. Stock, Wyman H. Herendeen, Mary
Herendeen, Fereidoon Sharifi, Soody Sharifi, Edward G. Rizk, Billie Rizk,
Benjamin Levit, Erica Levit, Walter J. Taylor, and Anita J. Taylor (the “Settling
Defendants”) wherein the Settling Defendants agreed to “terminate the
[Association] by filing a Certificate of Termination of a Domestic Nonprofit
Corporation or Cooperative Association with the Secretary of State.” CR866-908
(App. 4). On November 20, 2013, the Settling Defendants filed the Certificate of
Termination as to Jandor Gardens Association, Inc. with the Texas Secretary of
State. 1st Supp. CR120-22 (App. 5). In the settlement agreement, Crowell and the
Settling Defendants also agreed as follows:
4. Filing of Order.
The Parties acknowledge and agree that Crowell will file a certified
copy of the Order signed October 8, 2013, which is attached as
Exhibit C, in the real property records. The Parties acknowledge and
agree that they have waived any right to appeal the Order.
5. Applicable Deed Restrictions.
All Parties hereto acknowledge that the 1929 deed restrictions of
Jandor Gardens, recorded in Volume 811, Pages 285-286 of the Deed
6
Records of Harris County, Texas, remain in effect, and all Parties
hereto agree to comply with the deed restrictions.
CR868 (App. 4).
On December 5, 2013, Crowell filed the trial court’s order, dated October 8, 2013,
in the real property records for Harris County. CR790-94. Filing the trial court’s
October 8, 2013, order in the real property records removed the cloud of title on
the Property that had been created by the Association. CR368.3
F. The trial court grants Crowell’s Motion for Summary Judgment on
Attorneys’ Fees against Starbranch.
On February 25, 2015, Crowell filed her Motion for Summary Judgment on
Attorney’s Fees against Starbranch seeking $71,345.80 in attorneys’ fees, incurred
by Crowell between February 28, 2013, and October 1, 2014. CR366-674. In that
motion, Crowell claimed that she had obtained an August 19, 2013, summary
judgment order on her action to quiet title and her claim for declaratory relief
against Starbranch. CR368.4 Starbranch filed a motion for reconsideration of the
summary judgment order, 5 arguing that the order could not have been against
Starbranch because “[w]hen Crowell filed and served her Motion for Summary
3
In her Motion for Summary Judgment on Attorneys’ Fees, Crowell admitted the following: in
2013, the trial court “granted Ms. Crowell’s Motion for Summary Judgment on Liability, thereby
nullifying the actions of defendants’ bogus POA . . . .” CR368.
4
In her Motion for Summary Judgment on Attorneys’ Fees, Crowell made the following claim:
“On August 19, 2013, [the trial court] granted Ms. Crowell’s Motion for Summary Judgment on
Liability, thereby nullifying the actions of defendants’ bogus POA, and establishing the liability
of the defendants in this case with respect to certain causes of action including Ms. Crowell’s
action for declaratory judgment.” CR368.
5
CR675-708.
7
Judgment on Liability, this Court did not even have jurisdiction over Starbranch.”
CR677.
On March 10, 2015, the trial court entered an order ruling as follows:
ORDERED that the August 19, 2013 Order Granting Motion for
Summary Judgment did not apply to Starbranch since Starbranch was
not a party at that time. The Motion for Reconsideration is MOOT.
ORDERED that the Court will consider Plaintiff’s Motion for
Summary Judgment as to Liability (filed 6-24-13) and its application
to Starbranch by submission on March 30, 2015, along with Plaintiff’s
Motion for Summary Judgment on Attorneys’ Fees.
CR722-23.
Crowell’s Motion for Summary Judgment as to Liability, filed on June 14,
2013, sought the following five declarations concerning the respective rights and
interests of Crowell and Starbranch:
1) the “Notice of Formation of Petition Committee” filed November
8, 2012 (Harris Co, Clerk File No. 20120521806) has no force and
effect, is nullified, and is no longer a cloud on the title to, and right
of ownership of, the Property;
2) the “Petition Approval” filed November 8, 2012 (Harris County
Clerk File No. 20120521807) has no force and effect, is nullified,
and is no longer a cloud on the title to, and right of ownership of,
the Property;
3) the “Petition and First Amendment to Declaration for Jandor
Gardens” filed November 8, 2012 (Harris County Clerk File No.
20120521808) has no force and effect, is nullified, and is no longer
a cloud on the title to, and right of ownership of, the Property;
8
4) the “Petition Pursuant to Property Code § 204.006 To Create The
Jandor Gardens Association, Inc.” filed November 19, 2012
(Harris County Clerk File No. 201205436661) has no force and
effect, is nullified, and is no longer a cloud on the title to, and right
of ownership of, the Property; and
5) the “First Amendment to Declaration for Jandor Gardens” filed
November 20, 2012 (Harris County Clerk File No. 20120540162)
has no force and effect, is nullified, and is no longer a cloud on the
title to, and right or ownership of, the Property.
CR88-89.
In other words, Crowell sought declarations to nullify the same five documents that
she sought to nullify in her action to quiet title against Starbranch. Compare CR21
with CR88-89.
On March 23, 2015, Starbranch filed her Response to Crowell’s Motion for
Summary Judgment as to Liability and Crowell’s Motion for Summary Judgment
on Attorneys’ Fees. CR724-810. Starbranch filed the Affidavit of Nelson S.
Ebaugh and the Affidavit of Eileen K. Starbranch, M.D. in response to the
attorneys’ fee affidavit submitted by Crowell. CR755-83. Mr. Ebaugh testified
that “it is unreasonable to assess $71,354.80 against Starbranch when Crowell’s
attorneys have spent so little time prosecuting Crowell’s declaratory judgment
action against Starbranch.” CR771. In addition, Starbranch objected to Crowell’s
failure to segregate nonrecoverable fees from recoverable fees and Crowell’s
failure to segregate the fees owed by different parties. CR747-50.
9
On April 1, 2015, two days after the submission date for Crowell’s summary
judgment motions, Crowell filed a “Motion to Consider the Supplement to the
Affidavit of John B. Shely Filed in Connection with the Pending Motions on
Summary Judgment as to Attorneys’ Fees” (hereinafter, the “Motion to Consider
the Supplemental Affidavit”) that raised new and independent summary-judgment
grounds. CR834-63; 1st Supp. CR3-6. The Supplement to the Affidavit of John B.
Shely identified $19,345.506 in attorneys’ fees that Crowell had not requested in
her Motion for Summary Judgment on Attorneys’ Fees. Compare CR366-480 with
CR836-63 and 1st Supp. CR3-6. Shely claimed that Crowell incurred $19,345.50
in attorneys’ fees between November 3, 2014, and March 28, 2015. CR836-63; 1st
Supp. CR3-6.
In her Motion to Consider the Supplemental Affidavit, Crowell stated that
she decided to submit the Supplement to the Affidavit of John B. Shely to the trial
court because:
[It] describes additional fees incurred by Ms. Crowell in connection
with the pending motions on summary judgment as to attorneys’ fees
and for work performed on other litigation activities related solely to
Defendant Dr. Eileen K. Starbranch since November 1, 2014. These
fees are not included in the pending filings.
Consideration of the Supplement will allow the Court to
simultaneously evaluate the most recent attorneys’ fees incurred by
6
Calculated from the addition of the following amounts: $6,110.50 (November-December 2014),
$5,848.00 (January-February 2015), and $7,387.00 (March 2015).
10
Ms. Crowell along with those previously submitted and will promote
judicial efficiency in resolving matters currently before the Court.
CR834-35.
Crowell did not serve a notice identifying when the Motion to Consider the
Supplemental Affidavit would be set for hearing or for submission.
On April 6, 2015, the trial court entered an interlocutory summary judgment
order that neither granted nor denied Crowell’s Motion for Summary Judgment as
to Liability against Starbranch. CR917 (App. 3). Instead of declaring the
respective rights and interests of Crowell and Starbranch, the summary judgment
order simply provided as follows:
Plaintiff Elizabeth Howard Crowell is awarded judgment for
attorneys’ fees in the amount of 26,462.00 [sic], from Defendant
Eileen K. Starbranch. This amount reflects the unrebutted $19,245.50
set out in John Shely’s April 1, 2015 affidavit and $7,116.50 awarded
from the amounts requested in Crowell’s February 25, 2015, motion.
To the extent the full amount requested by Plaintiff was not awarded,
this Court is sustaining the objections raised by Starbranch.
CR917 (App. 3).
In other words, the trial court reduced the amount of attorneys’ fees initially
requested on February 25, 2015, from $71,345.80 to $7,116.50. Compare CR371
with CR917 (App. 3). In addition, the trial court reduced the amount of attorneys’
fees requested on April 1, 2015, from $19,345.50 to $19,245.50. Compare CR836-
63 and 1st Supp. CR3-6 with CR917 (App. 3).
11
G. The trial court grants Starbranch’s motion to dismiss Crowell’s action
for declaratory judgment as moot.
On April 3, 2015, Starbranch filed a motion to dismiss Crowell’s claim for
declaratory relief as moot because the Association was terminated in 2013 pursuant
to a settlement agreement. 1st Supp. CR7-122. Crowell did not file a response to
this motion. On April 22, 2015, the trial court entered an interlocutory order
stating “that Plaintiff Elizabeth Howard Crowell’s action for declaratory judgment
that she filed against Starbranch is dismissed because the claim is moot.” CR1040
(App. 2) (underline in original).
On April 24, 2015, Starbranch filed a motion to vacate any order or
judgment previously issued and to dismiss the case for want of jurisdiction. 1st
Supp. CR124-26. The trial court did not rule on this motion.
H. Order and Final Judgment leads to this appeal.
On April 16, 2015, Starbranch filed an amended motion for reconsideration
objecting to the trial court’s consideration of Crowell’s late evidence filed after the
submission date for Crowell’s summary judgment motions. CR981-1011. In her
amended motion for reconsideration, Starbranch identified her objections to
Crowell’s late evidence and presented affidavits controverting Crowell’s late
evidence. CR981-1011.
12
In Crowell’s Response to Starbranch’s Post Judgment Motions, Crowell
requested the denial of Starbranch’s amended motion for reconsideration and
various other post-trial motions filed by Starbranch. CR1041-43. On April 28,
2015, the trial court granted Crowell’s request and entered an Order and Final
Judgment denying Starbranch’s amended motion for reconsideration and awarded
Crowell “attorneys’ fees in the amount of $26,462.00 from Defendant Eileen K.
Starbranch.” CR1059-60 (App. 1). In its Order and Final Judgment, the trial court
held as follows:
On April 6, 2015, the Court entered an order resolving Crowell’s
claim for declaratory relief . . . (the “Summary Judgment Order”) . . . .
* * *
On April 22, 2015, the Court entered an [o]rder . . . dismissing
Crowell’s claim for declaratory relief as moot because it was resolved
by the Summary Judgment Order.
CR1060 (App. 1).
The trial court never made any declaration of the respective rights and interests of
Crowell and Starbranch. CR1059-60 (App. 1). Finally, the trial court made the
following statement in its Order and Final Judgment:
The Court has considered Starbranch’s objections and took them into
account in carefully reviewing the subject attorneys’ fees. The Court
eliminated requested fees that were not segregated or were related
solely to parties other than Starbranch. Fees were awarded only for
causes of action which support attorneys’ fees.
13
CR1059 (App. 1).
SUMMARY OF ARGUMENT
Crowell misused the Declaratory Judgments Act by duplicating the relief she
already sought in her action to quiet title in a claim for declaratory relief. Crowell
violated the rule that a party cannot use the Declaratory Judgments Act as a vehicle
to obtain otherwise impermissible attorneys’ fees. Consequently, the judgment
must be reversed and a take-nothing judgment rendered. For several other
independent reasons, the trial court erred or abused its discretion by awarding
attorneys’ fees against Starbranch.
The trial court improperly usurped the jury’s fact-finding role during a
summary-judgment proceeding. For instance, the trial court unilaterally reduced
the amount of attorneys’ fees initially requested in Crowell’s motion for summary
judgment on attorneys’ fees from $71,345.80 to $7,116.50. Accordingly, the
attorneys’ fee award should be reversed and the case should be remanded to the
trial court for further proceedings.
The trial court abused its discretion by awarding attorneys’ fees that were
neither equitable nor just. The trial court awarded attorneys’ fees under the
Declaratory Judgments Act before it even declared the representative rights and
interests of Crowell and Starbranch. In addition, Starbranch was not even a proper
party to Crowell’s declaratory judgment action. Finally, there is no evidence that
14
Starbranch prolonged the case or prevented a complete and final resolution to this
case. For each of these independent reasons, the attorneys’ fee award should be
reversed and a take nothing judgment rendered or, in the alternative, remanded to
the trial court for further proceedings.
The trial court improperly issued a summary judgment even though the
summary judgment evidence raised several genuine issues of material fact. The
Ebaugh Affidavit and the Starbranch Affidavit each raised genuine issues of
material fact. In addition, genuine issues of material fact necessarily existed
because the trial court sustained Starbranch’s objections to Crowell’s failure to
segregate her attorneys’ fees. Finally, Crowell’s own evidence established the
existence of genuine issues of material fact. For each of these independent
reasons, the attorneys’ fee award should be reversed and the case should be
remanded to the trial court for further proceedings.
The trial court abused its discretion by considering evidence filed after the
submission date and which Starbranch did not have the opportunity to controvert.
Two days after the submission date on her Motion for Summary Judgment on
Attorneys’ Fees, Crowell filed new evidence supporting a ground for summary
judgment that had not been sought in Crowell’s initial summary judgment motion.
Because the motion was not supported by good cause and the new evidence unduly
15
prejudiced Starbranch, the attorneys’ fee award should be reversed and the case
should be remanded to the trial court for further proceedings.
The trial court improperly awarded more relief than was requested in
Crowell’s Motion for Summary Judgment on Attorneys’ Fees. The new evidence
submitted by Crowell two days after the submission date for the summary
judgment motion entailed an independent ground for summary judgment that had
not been sought in Crowell’s summary judgment motion. Accordingly, this Court
should reverse and remand as to the attorneys’ fees which were never specifically
requested in Crowell’s summary judgment motion.
ARGUMENT
This Court reviews a grant of summary judgment under a de novo standard.
Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). Questions of
law are reviewed “without deference to a lower court’s conclusion.” State v. Heal,
917 S.W.2d 6, 9 (Tex. 1996). “When reviewing a summary judgment, [this Court]
‘must examine the entire record in the light most favorable to the nonmovant,
indulging every reasonable inference and resolving any doubts against the
motion.’” Yancy v. United Surgical Partners Int’l, Inc., 236 S.W.3d 778, 782
(Tex. 2007) (italics in original).
For several independent reasons, the trial court erred by granting Crowell’s
Motion for Summary Judgment on Attorneys’ Fees. First, the Declaratory
16
Judgments Act cannot be used as a vehicle to obtain otherwise impermissible
attorneys’ fees. Second, the trial court improperly usurped the jury’s fact-finding
role during a summary-judgment proceeding. Third, the summary judgment
evidence raised genuine issues of material fact. Fourth, the trial court granted
Crowell more relief than was requested in her Motion for Summary Judgment on
Attorneys’ Fees.
In addition, for at least a couple of independent reasons, the trial court
abused its discretion by granting Crowell’s Motion for Summary Judgment on
Attorneys’ Fees. First, the trial court abused its discretion by awarding attorneys’
fees against Starbranch under circumstances that were neither equitable nor just.
Second, the trial court abused its discretion by considering evidence filed after the
submission date and which Starbranch did not have the opportunity to controvert.
A. The Declaratory Judgments Act cannot be used as a vehicle to obtain
otherwise impermissible attorneys’ fees.
Crowell has misused the Declaratory Judgments Act. Crowell duplicated the
relief she already sought in her action to quiet title via declaration. Thus, any
award of attorneys’ fees for Crowell’s declaratory judgment action violates the rule
that “a party cannot use the [Declaratory Judgments Act] as a vehicle to obtain
otherwise impermissible attorney’s fees.” MBM Fin. Corp. v. Woodlands
Operating Co., 292 S.W.3d 660, 669 (Tex. 2009).
17
As the Texas Supreme Court has explained, “[i]f repleading a claim as a
declaratory judgment could justify a fee award, attorney’s fees would be available
for all parties in all cases. That would repeal not only the American Rule
[prohibiting fee awards unless specifically provided by contract or statute] but also
the limits imposed on fee awards in other statutes.” Id. For these reasons, “[a]
declaratory judgment action may not be used solely to obtain attorney’s fees that
are not otherwise authorized by statute or to settle disputes already pending before
a court.” Sw. Guar. Trust Co. v. Hardy Road 13.4 Joint Venture, 981 S.W.2d 951,
956 (Tex. App.–Houston [1st Dist.] 1998, pet. denied).
The phrases “action to quiet title” and “suit to quiet title” are used
interchangeably and refer to the same claim. E.g., U.S. Nat'l Bank Ass’n v.
Johnson, No. 01-10-00837-CV, 2011 WL 6938507, at *2-3 (Tex. App.—Houston
[1st Dist.] Dec. 30, 2011, no pet.) (mem. op.). “[T]he term ‘suit to quiet title’ has
been used broadly in reference to legal disputes regarding (1) title to, and
possession of, real property—a trespass-to-try-title action, and (2) validity of other
‘clouds’ which indirectly have an adverse effect on an undisputed owner’s title to
real property.” Parker v. Hunegnaw, 364 S.W.3d 398, 402 (Tex. App.—Houston
[14th Dist.] 2012, no pet.). In other words, an action to quiet title and an action to
18
remove a cloud on title are one and the same. 7 “[A] suit . . . to remove
encumbrances, or remove a cloud or quiet title may be maintained even though the
adversary is not actually occupying or in possession of the land.” Texan Dev. Co.
v. Hodges, 237 S.W.2d 436, 439 (Tex. Civ. App.—Amarillo 1951, no writ). In
fact, an action to quiet title may be asserted, as done so by Crowell in this case,
where any instrument 8 “would cast a cloud on the owner’s enjoyment of the
property.” Mortg. Elec. Registration Sys., Inc. v. Groves, No. 14–10–00090–CV,
2011 WL 1364070, at *3 (Tex. App.—Houston [14th Dist.] Apr. 12, 2011, pet.
denied) (mem. op.). Attorneys’ fees are not recoverable in an action to quiet title.
Sw. Guar. Trust Co., 981 S.W.2d at 957.
Here, an examination of the pleadings reveals that Crowell’s declaratory-
judgment action duplicated her action to quiet title. Crowell sought a declaration
that five documents filed in connection with the property owners’ association have
“no force and effect,” are “nullified” and are “no longer a cloud on Ms. Crowell’s
title to, and right of ownership of, the Property . . . .” CR19-20. In her action to
quiet title, Crowell alleged as follows:
7
Lonnie E. Griffith, Jr., J.D., 74 C.J.S. Quieting Title § 3 (April 2015) (Texas does “not observe
the distinction between an action to quiet title and to remove a cloud on title, treating the actions
as one and the same”).
8
Hahn v. Love, 321 S.W.3d 517, 531 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) (“A
cloud on title exists when an outstanding claim or encumbrance is shown, which on its face, if
valid, would affect or impair the title of the owner of the property.” . . . “Any deed, contract,
judgment or other instrument not void on its face that purports to convey an interest in or make
any charge upon the land of a true owner, the invalidity of which would require proof, is a cloud
upon the legal title of the owner.”).
19
the [five] documents filed by Defendants in the real property records
(see Harris County Clerk File Nos. 20120521806, 20120521807,
20120521808, 201205436661, and 2012054016216) are clouds or
encumbrances on Ms. Crowell’s right of ownership of the Property,
which affect or impair Ms. Crowell’s title to the Property. Ms.
Crowell seeks to nullify the effect of these disputed filings and
encumbrances. Ms. Crowell is entitled to a judgment that sets aside
these improper filings and removes them as clouds on her title.
CR21.
In other words, Crowell sought the same relief in her claim for declaratory relief
that she sought in her action to quiet title. CR19-21. Because Crowell’s claim for
declaratory relief merely duplicated the issues set forth in her action to quiet title,
Crowell is not entitled to attorney’s fees based on her claim for declaratory relief.
Wise v. Conklin, No. 01–13–00840–CV, 2015 WL 1778612, at *8 (Tex. App.—
Houston [1st Dist.] Apr. 16, 2015, no pet.) (mem. op.) (collecting cases and
affirming the trial court’s denial of Crowell’s claim for attorneys’ fees because the
UDJA could not be used to recover attorney's fees for a suit brought to remove
cloud from title); Sw. Guar. Trust Co., 981 S.W.2d at 956 (“Attorney’s fees are not
available in a suit to quiet title or to remove cloud on title.”).
In addition, in her claim for declaratory relief, Crowell did not seek to
construe any terms of the instruments filed by the Association. CR19-21.
Consequently, Crowell’s declaratory judgment action could offer her no more
relief than her action to quiet title.
20
For these reasons, this Court should reverse the portion of the trial court's
judgment awarding attorneys’ fees to Crowell and render judgment that Crowell
take nothing on her requests for attorneys’ fees. Universal Printing Co. v. Premier
Victorian Homes, Inc., 73 S. W.3d 283, 296 (Tex. App.—Houston [1st Dist.] 2001,
pet. denied) (“There is no basis for declaratory relief when a party is seeking in the
same action a different, enforceable remedy, and a judicial declaration would add
nothing to what would be implicit or express in a final judgment for the
enforceable remedy.”); Sw. Guar. Trust, 981 S.W.2d at 956. (denying request for
attorneys’ fees where the declaratory judgment action simply sought to nullify the
clouds of title rather than to construe the terms of the challenged instruments).
Because Crowell only obtained attorneys’ fees from Starbranch, and Crowell
cannot recover attorneys’ fees under her claim for declaratory relief as a matter of
law, the judgment must be reversed and a take-nothing judgment rendered.
B. The trial court improperly usurped the jury’s fact-finding role during a
summary-judgment proceeding.
“Pursuant to Section 37.009, the judge is to determine whether an award of
attorney’s fees is equitable and just; however, even when declaratory relief has
been determined by summary judgment, the issue of whether attorney’s fees are
reasonable and necessary is a question of fact for the jury to determine when the
jury is the trier of fact.” Fuqua v. Oncor Elec. Delivery Co., 315 S.W.3d 552, 559-
21
60 (Tex. App.—Eastland 2010, pet. denied) (citing City of Garland v. Dallas
Morning News, 22 S.W.3d 351, 367 (Tex.2000); Bocquet, 972 S.W.2d 19, 20–21
(Tex. 1998)).
On April 7, 2013, defendants Anita J. Taylor and Walter J. Taylor requested
a jury trial in this case and the jury fee was paid. CR56-58; 1093. “A jury
request by one party inures to the benefit of all other parties.” 9 Consequently,
Starbranch always had a right to a jury trial in this case. Starbranch never waived
her right to a jury trial in this case.
Here, Crowell submitted an affidavit stating that $71,354.80 was a
reasonable amount for the legal services rendered as of February 24, 2015.
CR386-468. Starbranch submitted an opposing affidavit in which her attorney
opined that “it is unreasonable to assess $71,354.80 against Starbranch when
Crowell’s attorneys have spent so little time prosecuting Crowell’s declaratory
judgment action against Starbranch.” CR771.
In its Order and Final Judgment, the trial court stated that it had partially
granted Crowell’s Motion for Summary Judgment on Attorneys’ Fees on April 6,
2015, and further stated in relevant part as follows:
9
Judge Adele Hedges & Daniel K. Hedges, Involuntary bench trial—No request for a jury
trial—Request binding all parties, 2 TEX. PRAC. GUIDE CIVIL TRIAL § 14:25 (Thomson Reuters
2014) (“A jury request by one party inures to the benefit of all other parties. White Motor Co. v.
Loden, 373 S.W.2d 863, 865 (Tex. Civ. App.—Dallas 1963, no writ). The inquiry is simply
whether one party made a proper jury request, not which party made it. Almaguer v. Jenkins, 882
S.W.2d 903, 904 (Tex. App.—Corpus Christi 1994, no writ) (jury request and fee payment inure
to benefit all parties).”).
22
The Court eliminated requested fees that were not segregated or were
related solely to parties other than Starbranch. Fees were awarded
only for causes of action which support attorneys’ fees.
CR1059 (App. 1).
In other words, the trial court inappropriately engaged in fact finding when it
decided a fact dispute about the amount of attorneys’ fees, if any. General Elec.
Supply Co. v. Gulf Electroquip, Inc., 857 S.W.2d 591, 601 (Tex. App.—Houston
[1st Dist.] 1993, writ denied) (“Cases dealing with the fixing of attorneys' fees by
the trial judge when acting as the trier of fact have no application to a summary
judgment proceeding.”). In addition, the trial court inappropriately engaged in fact
finding when it decided to award Crowell $19,245.50 of the $19,345.50 initially
sought by Crowell in her Motion to Consider the Supplemental Affidavit.
Compare CR836-63 and 1st Supp. CR3-6 with CR917 (App. 3). In a declaratory
judgment action, the jury, not the judge, decides the amount of attorneys’ fees.
Bocquet, 972 S.W.2d at 21.
Because the Order and Final Judgment specifies the grounds on which the
court bases summary judgment, this Court should limit its review to those grounds.
Pentico v. Mad-Wayler, Inc., 964 S.W.2d 708, 712-13 (Tex. App.—Corpus Christi
1998, pet. denied) (“Where the summary judgment order specifies the grounds on
which it bases summary judgment, we limit our review to those grounds. The
summary judgment will be affirmed on appeal if the specified grounds are
23
meritorious. Even if the motion contained other independent grounds on which
summary judgment was sought, the grounds specified in the order are the only
ones on which summary judgment may be affirmed.”) (citations omitted).
Significantly, “[a] trial court is . . . not permitted to take judicial notice of
reasonable and necessary fees under the Declaratory Judgments Act.” Adiuku v.
Ikemenefuna ex rel. Ada Mbaise Ass’n of Houston, No. 14–13–00722–CV, 2015
WL 778487, at *12 (Tex. App.—Houston [14th Dist.] Feb. 24, 2015, no pet.)
(mem. op.) (“There is no presumption that a request for attorney’s fees under the
Declaratory Judgments Act is reasonable.”). Again, only a jury, not the judge,
could decide the amount of attorneys’ fees in this case.
In McGlown v. Ashford Park Homeowners Association, Inc., No. 01-08-
00619-CV, 2009 WL 1635310 (Tex. App.—Houston [1st Dist.] 2007, no pet.)
(mem. op.), this Court held that the trial court’s reduction of the attorney’s fees
awarded in a summary judgment proceeding “reflect[ed] that the trial court was
duly concerned about the issue [of attorney’s fees], but the court was not
authorized to make a fact finding at this stage.” Id. at *4. “[C]ontroverting
evidence before the trial court bar[red] summary judgment on the Association's
attorney’s fees claim.” Id. For these reasons, this Court reversed the trial court’s
summary judgment on the attorney’s fee award and remanded the case for trial. Id.
24
As in McGlown, the trial court below was not authorized to engage in fact
finding at the summary judgment stage.
The summary judgment rule does not provide for a trial by deposition
or affidavit. The rule provides a method for summarily ending a case
involving only a question of law and no genuine fact issues. See
Gaines v. Hamman, 163 Tex. 618, 358 S.W.2d 557, 563 (1962). The
trial court must determine whether fact issues exist, not weigh the
evidence or its credibility and try the case on affidavits. Gulbenkian,
252 S.W.2d at 931.
Thompson v. Community Health Inv. Corp., 892 S.W.2d 440, 441-42
(Tex. App.—Dallas 1995), rev'd on other grounds, 923 S.W.2d 569
(Tex. 1996).
For these reasons, the amount of Crowell’s reasonable attorneys’ fee is still a
factual issue to be tried. Accordingly, the attorneys’ fee award should be reversed
and the case should be remanded to the trial court for further proceedings.
C. The attorneys’ fees are neither equitable nor just.
In a declaratory judgment action, the trial “court may award costs and
reasonable and necessary attorney’s fees as are equitable and just.” Tex. Civ. Prac.
& Rem. Code § 37.009. Though a question of law, the determination of whether
attorneys’ fees are equitable and just under the Texas Declaratory Judgment Act is
reviewed for an abuse of discretion. Bocquet, 972 S.W.2d at 20-21. “[A] clear
failure by the trial court to analyze or apply the law correctly will constitute an
abuse of discretion.” Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). In
addition, “[i]t is an abuse of discretion for a trial court to rule . . . without
25
supporting evidence.” Bocquet, 972 S.W.2d at 21. “[I]n reviewing an attorney fee
award under the [Declaratory Judgments] Act, the court of appeals must determine
whether the trial court abused its discretion by awarding fees . . . when the award
was inequitable or unjust.” Id. at 21; State & Cnty. Mut. Fire Ins. Co. ex rel. S.
United Gen. Agency of Tex. v. Walker, 228 S.W.3d 404, 407 (Tex. App.—Fort
Worth 2007, no pet.) (“A court of appeals will determine that the trial court abused
its discretion in granting attorney’s fees in a declaratory judgment action if ‘the
award was inequitable or unjust as a matter of law.’”).
For at least three independent reasons, the trial court abused its discretion by
awarding fees that were not equitable and just. First, the trial court awarded
attorneys’ fees before it even made any declarations between Crowell and
Starbranch or determined that Starbranch had any liability at all. Second,
Starbranch was not even a proper party to Crowell’s claim for declaratory relief.
Third, despite Crowell’s bald claim to the contrary, Starbranch did not prevent a
complete and final resolution to this case.
1. The trial court awarded attorneys’ fees before it even declared
the respective rights and interests of Crowell and Starbranch.
“Only after the trial court declares the parties’ rights under the Uniform
Declaratory Judgments Act, [should the trial court address] whether the evidence is
factually sufficient to support a finding that the fees are reasonable and necessary
26
and determine if the award is equitable and just.” VICC Homeowners’ Ass’n v.
Los Campeones, Inc., 143 S.W.3d 832, 839-40 (Tex. App.—Corpus Christi 2004,
no pet.) (Castillo, J., concurring). In support of this holding, Justice Castillo
reasoned as follows:
A claim for attorney fees under the Uniform Declaratory Judgments
Act is not severable from the merits of the declaratory judgment
action itself. See Dalisa, Inc. v. Bradford, 81 S.W.3d 876, 880 (Tex.
App.—Austin 2002, no pet.). “‘That a suit for the statutory attorney’s
fees as a separate action could not be maintained is evident from the
wording of the statute . . . . The attorney’s fees, while not costs,
partake of the nature of the costs of suit and are assessed in
accordance with the judgment’ reached in the proceeding.” Dalisa,
Inc., 81 S.W.3d at 881 (quoting Huff v. Fidelity Union Life Ins. Co.,
158 Tex. 433, 312 S.W.2d 493, 501 (1958)). I conclude that the
reasonableness, necessity, equitableness, and justness of an award of
attorney fees in a declaratory judgment action necessarily are related
to the trial court’s declaration of the rights of the parties. I would hold
that an award of attorney fees in this case must abide the declaration
itself.
Id. at 839.
Here, the trial court awarded attorneys’ fees before it even declared the
respective rights and interests of Crowell and Starbranch. “The purpose of the
[Declaratory Judgments] Act is to provide a procedural device whereby litigants
can obtain a judicial determination of a controversy.” Kennesaw Life & Accident
Ins. Co. v. Goss, 694 S.W.2d 115, 117 (Tex. App.—Houston [14th Dist.] 1985,
writ ref'd n.r.e.) The Act is not a “vehicle to recover attorney’s fees.” City of
Carrollton v. RIHR Inc., 308 S.W.3d 444, 454–55 (Tex. App.—Dallas 2010, pet.
27
denied). In fact, “fees are not permissible under § 37.009 where [the declaration is
sought] solely for the purpose of obtaining attorney’s fees.” Tanglewood Homes
Ass’n, Inc. v. Feldman, 436 S.W.3d 48, 69 (Tex. App.—Houston [14th Dist.] 2014,
no pet. h.).
Because an attorneys’ fee award is merely ancillary to a declaration under
the Act, and an attorney fee award is “not severable from the merits of the
declaratory judgment action itself,” it is inequitable and unjust as a matter of law to
award attorneys’ fees under the Act until a declaration of the rights of the parties
has been made. Cf. Crown Asset Mgmt., LLC v. Short, No. 01-08-00042-CV, 2009
WL 1025729, at *4 (Tex. App.—Houston [1st Dist .] 2009, no pet.) (mem. op.)
(“In the instant case, the trial court’s award of attorney's fees to Short for his
declaratory judgment action was inequitable and unjust because . . . Short produced
no evidence to support his claim for declaratory judgment.”). To hold otherwise
would turn the American Rule, prohibiting fee awards unless specifically provided
by contract or statute, on its head. It also would put the cart before the horse by
allowing a party to recover attorneys’ fees without the court first determining
liability.
For these reasons, the award of attorneys’ fees was neither equitable nor just
and the trial court abused its discretion in making the award. Accordingly, the
28
attorneys’ fee award should be reversed and the case should be remanded to the
trial court for further proceedings.
2. It is inequitable and unjust to award attorneys’ fees against a
person who was not even a proper party to the declaratory
judgment action.
Because Starbranch raised a fact issue on her defense that she has never been
a proper party in this case, it was inequitable and unjust as a matter of law for the
trial court to assess attorneys’ fees against Starbranch. If anything, the trial court
should have awarded attorneys’ fees against Crowell for unnecessarily joining
Starbranch as a party in this lawsuit, “causing her to incur fees that she otherwise
would not have had to incur.” E.g. State and Cty. Mut. Fire Ins. Co., 228 S.W.3d
at 411 (holing it was just and equitable to award attorneys’ fees to a party that was
unnecessarily joined in a declaratory judgment action).
In her response to Crowell’s Motion for Summary Judgment on Liability,
Starbranch asserted that she was not a proper party to Crowell’s declaratory
judgment action. CR740-43. Significantly, Crowell’s evidence did not identify
Starbranch as either an officer or a board member of the Association. CR 217-21.
Crowell’s evidence demonstrated that Starbranch was nothing more than a member
of the Association. CR 181; 211; 260; 302. Consequently, Crowell’s own
summary-judgment evidence raised a fact issue as to whether Starbranch was a
proper party to the declaratory judgment action. Starbranch also produced
29
summary-judgment evidence that raised a fact issue as to whether she was a proper
party to Plaintiff’s declaratory judgment action. CR755-62.
A property owners association, its officers, and board members are proper
parties to a landowner’s claim for declaratory relief. Tex. Bus. Orgs. Code §§
22.221 and 22.235. However, “[t]he members of a [nonprofit] corporation are not
personally liable for a debt, liability, or obligation of the corporation.” Tex. Bus.
Orgs. Code § 22.152. To show that she was not a proper party, Starbranch
explained in her response to Crowell’s summary judgment motions that she was
nothing more than a member of the Association and that she had never asserted an
interest in the Property. CR 740-743.
In sum, it is undisputed that the Association was a nonprofit corporation.
CR 100. It is undisputed that Starbranch was neither an officer nor a board
member for the property owners’ association. CR 217-21. Starbranch testified
that she had never asserted any interest in Crowell’s Property. CR 758. In fact,
Starbranch disclaimed any and all interest in Crowell’s Property. CR 758. Under
these facts, Section 22.152 shielded Starbranch from personal liability arising out
of her participation as a member in the Association. Cf. Reiner v. Ehrlich, 66 A.3d
1132, 1143 (Md. Ct. Spec. App. 2013) (affirming dismissal of Plaintiff’s
declaratory judgment action against individual homeowners due to homeowners’
immunity from liability under Md. Code Ann., Cts. & Jud. Proc. § 5-422); 65 AM.
30
JUR. 2d Quieting Title § 63 (Database updated May 2015) (“An action to quiet title
lies against those who, at the time it is instituted, are the present claimants to the
land under the instruments that creates the cloud.”).
In Reiner, a married couple sought declaratory relief not only against the
homeowners association but also against sixteen individual homeowners in the
community. Reiner , 66 A.3d. at 1134-35. The trial court dismissed the plaintiffs’
claim for declaratory relief against the individual homeowners because under
Maryland law the homeowners were immune from liability as long as they were
acting within the scope of their duties under the homeowners’ association. Id. at
1143. Under Texas law, Starbranch is similarly shielded from personal liability
arising out of her participation as a member in the Association at issue in this case.
Tex. Bus. Orgs. Code § 22.152.
This conclusion is supported by Crowell’s decision to dismiss defendants
that were similarly situated to Starbranch. Like Starbranch, the following
defendants did nothing more that than approve instruments prepared by the petition
committee or another representative of the Association: George L. Parker, Eva K.
Parker, Garret S. Madderra, Georgia W. Hitchcock, James Carper, and Eric
Mazziotta. CR106-114; 167-185; 197-215; 246-264; 275-283; 293-302. Crowell
dismissed each of these defendants from the lawsuit, and none paid any attorneys’
fees. CR26-46; 59-61; 65-68; 72-74. When Crowell dismissed these defendants
31
before obtaining any judgment in the lawsuit, Crowell knew that they were not
proper parties to a declaratory judgment action.
In addition, it is important to note that Starbranch did not even sign two of
the instruments that Crowell sought to declare as void. It is undisputed that
Starbranch did not sign the “Notice of Formation of Petition Committee” 10 or the
“Petition Pursuant to Property Code § 204.006 To Create The Jandor Gardens
Association, Inc.,”11 which are the subjects of the first and fourth declarations
sought in Crowell’s Motion for Summary Judgment on Liability. CR20.
Consequently, even if she was not shielded from liability under the Texas Business
Organizations Code, Starbranch could not have been a proper party to the first and
fourth declarations sought against her. After all, there can be no controversy
between Crowell and Starbranch in connection with documents that Starbranch did
not even sign. Bonham State Bank v. Beadle, 907 S.W.2d 465, 467 (Tex. 1995)
(“To constitute a justiciable controversy, there must exist a real and substantial
controversy involving genuine conflict of tangible interests and not merely a
theoretical dispute.”).
Viewed in the light most favorable to Starbranch, the evidence demonstrated
that Starbranch was not a proper party to the declaratory judgment action or suit to
quiet title. Cf. Kennesaw Life & Accident Ins. Co, 694 S.W.2d at 118 (holding that
10
CR154-57.
11
CR100-04.
32
declaratory judgment was inappropriate against a party in an action to remove a
cloud on plaintiff’s title to real property, even though the party may have played a
role in creating the cloud, because the party had disclaimed any interest in the
property and was not in possession of the property). Consequently, if a take-
nothing judgment is not rendered, this Court should reverse the trial court's
judgment awarding attorneys’ fees to Crowell and remand for trial.
3. There is no evidence that Starbranch prolonged the case or
prevented a complete and final resolution to this case.
The only evidence presented to the trial court regarding whether it was
equitable or just to assess attorney’s fees against Starbranch was the conclusory
and self-serving affidavit testimony of Crowell’s lead attorney, John B. Shely. CR
386-389.
Shely testified “[f]inal resolution of the suit . . . has been drawn out by the
failure of Starbranch to file an answer for over fourteen months, despite being
served with process, and by her failure to rescind her signature to various
documents at issue in the case.” CR 389. Nowhere does Shely testify how or why
final resolution of the suit depended upon Starbranch’s appearance in this lawsuit
or rescission of her signatures. In fact, final resolution of the suit did not depend
upon whether Starbranch appeared in this suit or rescinded her signatures; it
depended on settlement with the proper parties to the case.
33
Before Starbranch even made an appearance in this suit, Crowell had already
obtained all the relief that she sought through her suit to quiet title and her
duplicative declaratory judgment action. CR345-46. In 2013, Crowell entered into
a global settlement with the Association, its officers and directors. CR866-908
(App. 4). The global settlement agreement removed all clouds of title and
terminated the Association. CR866-908 (App. 4). In other words, Crowell’s claim
for declaratory relief was completely resolved in 2013 prior to Starbranch’s
appearance. CR866-908 (App. 4); 1st Supp. CR 119-22; CR 790-94.
Moreover, as explained above, Starbranch has never been a proper party to
this lawsuit. See Argument C(2). Consequently, despite Crowell’s claim to the
contrary, Starbranch could not have prolonged the case or “prevent[ed] a complete
and final resolution to this case.” CR371. For these reasons, Shely’s testimony is
conclusory and therefore not competent summary judgment evidence. Texas
Division-Tranter v. Carrozza, 876 S.W.2d 312, 314 (Tex. 1994) (holding
conclusory statements in support of a motion for summary judgment are “not
competent summary judgment evidence”).
An affidavit is conclusory if it states a conclusion “without any explanation”
or asks the fact-finder to “take my word for it.” Arkoma Basin Exploration Co. v.
FMF Assocs. 1990-A Ltd., 249 S.W.3d 380, 389 (Tex. 2008); see also BLACK’S
LAW DICTIONARY 308 (9th ed. 2009) (defining “conclusory” as “[e]xpressing a
34
factual inference without stating the underlying facts on which the inference is
based”).
A conclusory statement does not provide the underlying facts to
support the conclusion. Dolcefino v. Randolph, 19 S.W.3d 906, 930
(Tex. App.—Houston [14th Dist.] 2000, pet. denied). A conclusory
statement may set forth an unsupported legal conclusion or
unsupported factual conclusion. S & I Mgmt., Inc. v. Sungju Choi, 331
S.W.3d 849, 856 (Tex. App.–Dallas 2011, no pet.); Choctaw Props.,
L.L.C. v. Aledo Indep. Sch. Dist., 127 S.W.3d 235, 242 (Tex. App.—
Waco 2003, no pet.). Conclusory affidavits are not sufficient to raise
fact issues because they are not credible or susceptible to being
readily controverted. Ryland Group v. Hood, 924 S.W.2d 120, 122
(Tex. 1996) (per curiam). Objections that statements in an affidavit
are conclusory assert defects of substance, which may be raised on
appeal for the first time. S & Mgmt., Inc., 331 S.W.3d at 856;
Rockwall Commons Assocs., Ltd., 331 S.W.3d at 507.
Pipkin v. Kroger Texas, L.P., 383 S.W.3d 655, 670 (Tex. App.—
Houston [14th Dist.] 2012, pet. denied).
Simply put, Crowell offered no competent evidence to establish it was equitable or
just to assess attorneys’ fees against Starbranch.
Crowell offered no other grounds for supporting her claim that attorneys’
fees against Starbranch were just and equitable. Because there is no evidence that
Starbranch prolonged the case or prevented a complete and final resolution to this
case, it was inequitable and unjust as a matter of law for the district court to assess
attorneys’ fees against Starbranch. Bocquet, 972 S.W.2d at 21 (“It is an abuse of
discretion for a trial court to rule . . . without supporting evidence.”); Crown Asset
Mgmt., LLC, 2009 WL 1025729, at *4 (“In the instant case, the trial court’s award
35
of attorney’s fees to Short for his declaratory judgment action was inequitable and
unjust because . . . Short produced no evidence to support his claim for declaratory
judgment.”). Accordingly, the attorneys’ fee award should be reversed and a take
nothing judgment rendered or, in the alternative, remanded to the trial court for
further proceedings.
D. The summary judgment evidence raised genuine issues of material fact.
“The award of attorney’s fees in a summary judgment is improper unless the
evidence of the reasonableness of those fees is uncontroverted.” Guity v. C.C.I.
Enter., Co., 54 S.W.3d 526, 528 (Tex. App.—Houston [1st Dist.] 2001, no pet.).
Because Starbranch introduced the affidavit of Nelson S. Ebaugh 12 and the
affidavit of Eileen K. Starbranch 13 in response to Crowell’s motion for summary
judgment on attorneys’ fees, Starbranch created genuine issues of fact regarding
the reasonableness of the fees that precluded the granting of summary judgment
under Tex. R. Civ. P. 166a(c). Jay Petroleum, L.L.C. v. EOG Res., Inc., 332
S.W.3d 534, 542-43 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) (holding it
was improper to award attorneys' fees in partial summary judgment because
appellant raised a fact issue by submitting a controverting affidavit from its
attorney); General Elec. Supply Co., 857 S.W.2d at 601 (“The only authority we
find permitting the award of attorneys’ fees on a summary judgment does not apply
12
CR 769-94
13
CR 755-62
36
unless the evidence of the reasonableness of those fees is uncontroverted; it does
not apply when, as here, conflicting affidavits from opposing attorneys are
presented.”) (collecting cases).
For several independent reasons, the summary judgment evidence raised
genuine issues of material fact as to whether the attorneys’ fees were reasonable
and necessary. First, the Affidavit of Nelson S. Ebaugh controverted Crowell’s
summary judgment evidence. Second, the Affidavit of Eileen K. Starbranch
controverted Crowell’s summary judgment evidence. Third, Crowell’s own
evidence established the existence of genuine issues of material fact on her claim
for attorneys’ fees.
1. The Affidavit of Nelson S. Ebaugh raised genuine issues of
material fact.
“As a general rule, the party seeking to recover attorney’s fees carries the
burden of proof.” Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 10 (Tex.
1991). “Although courts should consider several factors when awarding attorney’s
fees, a short hand version of these considerations is that the trial court may award
those fees that are ‘reasonable and necessary’ for the prosecution of the suit.” Id.
Whether an award of attorneys’ fees is reasonable and necessary is a fact question.
Bocquet, 972 S.W.2d at 21 (interpreting the Declaratory Judgments Act to allow a
jury, not the trial court, to determine the amount of “reasonable and necessary”
attorney’s fees).
37
In the Affidavit of John B. Shely, Shely testified that $71,354.80 was “a
reasonable fee for the work which has been performed by Andrews Kurth in this
matter as of the date of this affidavit . . . .” CR387. Starbranch controverted this
opinion with the Affidavit of Nelson S. Ebaugh. Ebaugh testified as follows:
[I]t is my opinion that the amount of $71,354.80 sought by Crowell
against Starbranch is unreasonable because Crowell has only served
one request for disclosure on Starbranch, has only served one request
for production on Starbranch, has not taken any depositions in this
case, and has not filed any discovery motions against Starbranch in
this case. Under the circumstances, it is unreasonable to assess
$71,354.80 against Starbranch when Crowell’s attorneys have spent
so little time prosecuting Crowell’s declaratory judgment action
against Starbranch.
CR 771.
Consequently, the Ebaugh Affidavit raised a genuine issue of material fact as to
whether $71,354.80 was a reasonable and necessary fee for the prosecution of
Crowell’s claim for declaratory relief against Starbranch. Engel v. Pettit, 713
S.W.2d 770, 771-73 (Tex. App.—Houston [14th Dist.] 1986, no writ) (holding that
trial court erred in granting summary judgment because of fact issue raised by
attorney’s fees affidavit of nonmovant). The remainder of Ebaugh’s affidavit
created additional genuine issues of material fact. For instance, paragraphs four
and five of the Ebaugh Affidavit also controverted Shely’s opinion that $71,354.80
was “a reasonable fee for the work which has been performed by Andrews Kurth
in this matter as of the date of this affidavit . . . .” CR770-771; 387. Because the
38
evidence was sufficient to raise genuine issues of material fact, the trial court erred
in granting summary judgment in favor of Crowell.
2. The Affidavit of Eileen K. Starbranch raised genuine issues of
material fact.
In the Affidavit of John B. Shely, Shely testified as follows:
Starbranch was served with the correspondence attached as Exhibit 4-
E contemporaneously when the lawsuit was served on her. She did not
respond to me regarding Exhibit 4-E nor did she rescind her signature
to the documents in issue.
CR389.
In her affidavit, Starbranch contradicted this statement by testifying as follows:
In his affidavit attached to Crowell’s Motion for Summary Judgment
on Attorneys’ Fees as Exhibit 4, John B. Shely claims that, on July 1,
2013, I was served with a letter and its enclosure entitled ‘Rescission
of Real Property Filings.’ However, I did not receive this letter
inviting me to execute the ‘Rescission of Real Property Filings’ when
Mr. Shely claimed it was served upon me. The first time that I saw
the letter and its enclosure was as an attachment to Crowell’s Motion
for Summary Judgment on Attorneys’ Fees as Exhibit 4-E.
CR758.
Consequently, the Starbranch Affidavit raised a genuine issue of material fact as to
whether Starbranch had ever been served with Exhibit 4-E 14, a letter and its
enclosure entitled ‘Rescission of Real Property Filings,’ before February 25, 2015.
Because the evidence was sufficient to raise a genuine issue of material fact, as to
14
CR 475-79.
39
whether Starbranch prolonged the litigation, the trial court erred in granting
summary judgment in favor of Crowell.
3. Genuine issues of material fact necessarily existed because the
trial court sustained Starbranch’s objection to Crowell’s
failure to segregate.
“A party seeking to recover attorney’s fees has the burden to show that the
fees were reasonable and necessary which, among other things, requires the party
to show the fees were incurred on a claim that allows recovery of such fees.”
Goldman v. Olmstead, 414 S.W.3d 346, 367 (Tex. App.—Dallas 2013, pet.
denied). The trial court sustained Starbranch’s objections to Crowell’s failure to
segregate nonrecoverable fees from recoverable fees and Crowell’s failure to
segregate the fees owed by different parties. CR 917. Consequently, as
acknowledged by the trial court, there was a genuine issue of material fact as to
how much of the attorneys’ fees, if any, incurred by Crowell should have been
apportioned to her claim for declaratory relief against Starbranch.
“[T]he need to segregate attorney’s fees is a question of law, while the
extent to which certain claims can or cannot be segregated is a mixed question of
law and fact.” Ca Partners v. Spears, 274 S.W.3d 51, 81 (Tex. App.—Houston
[14th Dist.] 2008, pet. denied) (citing Tony Gullo Motors I, L.P. v. Chapa, 212
S.W.3d 299, 312-13 (Tex.2006)). Once the trial court has decided that attorneys’
fees need to be segregated, only under limited circumstances may the trial court
40
participate in the segregation of attorneys’ fees. Chapa, 212 S.W.3d at 341. For
example, a court may decide as a matter of law whether overcoming an affirmative
defense was necessary to prevail on a claim under which attorneys’ fees are
recoverable. Id. However, “when . . . it cannot be denied that at least some of the
attorney’s fees are attributable only to claims for which fees are not recoverable,
segregation of fees ought to be required and the jury ought to decide the rest.” Id.
Because some of the attorneys’ fees that Crowell sought were “attributable only to
claims for which fees are not recoverable,” Starbranch was entitled to have a jury,
not the trial court, segregate Crowell’s attorneys’ fees.
In sum, as acknowledged by the trial court, the summary judgment evidence
raised a genuine issue of material fact as to whether the attorneys’ fees sought were
appropriately segregated. Accordingly, the attorneys’ fees award should be
reversed and remanded to the trial court for a jury, not the judge, to segregate the
attorneys’ fees. AMX Enters., L.L.P. v. Master Realty Corp., 283 S.W.3d 506, 523
(Tex. App.—Fort Worth 2009, no pet.) (“remand is required to calculate the
segregated award”).
41
4. Crowell’s own evidence established the existence of genuine
issues of material fact.
Crowell presented contradictory evidence as to the amount of reasonable and
necessary attorneys’ fees incurred by her. First, Crowell introduced the Affidavit
of John B. Shely wherein Shely testified as follows:
In my opinion, a sum equal to $71,354.80 is a reasonable fee for the
work which has been performed by Andrews Kurth in this matter as of
the date of this affidavit [February 24, 2015].
CR387.
In other words, Shely claimed that $71,354.80 was a reasonable and necessary fee
for representing Crowell from February 28, 2013, through February 24, 2015.
Then, Crowell introduced the Supplement to the Affidavit of John B. Shely
wherein Shely claimed that reasonable and necessary attorneys’ fees incurred by
Crowell from November 3, 2014, through March 28, 2015, amounted to
$19,345.50. 1st Supp. CR3-6. These two affidavits were inconsistent with one
another because they each identified a different amount for the allegedly
reasonable and necessary attorneys’ fees incurred between November 3, 2014, and
February 24, 2015. Armbruster v. Memorial Southwest Hosp., 857 S.W.2d 938,
941 (Tex. App.—Houston [1st Dist.] 1993, no writ) (“The movant’s own evidence
may establish the existence of a genuine issue of material fact . . . .”). Given the
conflicting evidence presented by Crowell on the amount of her reasonable and
42
necessary attorney’s fees between November 3, 2014, and February 24, 2015, there
are genuine issues of material fact as to the amount of her reasonable and
necessary attorneys’ fees.
E. The trial court abused its discretion by considering evidence filed after
the submission date and which Starbranch did not have the opportunity
to controvert.
A trial court’s decision to allow evidence to be filed after the submission
date on a motion for summary judgment and before summary judgment is rendered
is reviewed for an abuse of discretion. Beavers v. Goose Creek Consol. I.S.D., 884
S.W.2d 932, 935 (Tex. App.—Waco, 1994, writ denied). Late-filed summary
judgment evidence may be considered by the trial court only upon a showing of (1)
good cause, and (2) no undue prejudice. Caldwell v. Carrollton Air Conditioning,
Inc., No. 07-05-0241-CV, 2007 WL 2390425, at *6 (Tex. App.—Amarillo Aug.
22, 2007, pet. denied) (mem. op.) (citing Wheeler v. Green, 157 S.W.3d 439, 442
(Tex.2005)); see also Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682,
686 (Tex.2002) (“Our rules . . . provide that a trial court may permit an act to be
done after a period prescribed in other procedural rules upon a showing of ‘good
cause.’ Tex. R. Civ. P. 5.”). “Good cause exists when a failure was the result of
accident or mistake and not intentional or the result of conscious indifference.” Id.
“Undue prejudice depends on whether allowing late submission will delay trial or
significantly hamper the opposing party’s ability to prepare for it.” Id.
43
Two days after the submission date on her Motion for Summary Judgment
on Attorneys’ Fees, Crowell filed new evidence, entitled the “Supplement to the
Affidavit of John B. Shely.” 1st Supp. CR3-6. The Supplement to the Affidavit of
John B. Shely identified $19,345.50 in additional attorneys’ fees that Crowell had
not requested in her Motion for Summary Judgment on Attorneys’ Fees. Compare
CR366-480 with CR836-63 and 1st Supp. CR3-6. Significantly, Crowell failed to
demonstrate that her late filing of evidence was accidental instead of intentional or
the result of conscious indifference. CR836-63; 1st Supp. CR3-6. In addition,
Crowell failed to demonstrate that her late filing would not cause Starbranch undue
prejudice. CR836-63; 1st Supp. CR3-6.
Without giving Starbranch an appropriate opportunity to object or otherwise
respond, and less than a week after Crowell filed the new evidence, the trial court
awarded $19,245.50 (of the $19,345.50 sought in Crowell’s Motion to Consider
the Supplemental Affidavit). CR917 (App. 3).
Starbranch filed an amended motion for reconsideration objecting to the trial
court’s consideration of the new evidence. CR 981-1011. In her amended motion
for reconsideration, Starbranch identified her objections to Crowell’s new evidence
and presented affidavits controverting Crowell’s new evidence. CR 981-1011. The
trial court denied Starbranch’s motion for reconsideration. CR 1059-60 (App. 1).
44
Because summary judgment is a “harsh remedy,” the notice requirements of
the rule must be “strictly construed.” Sams v. N.L. Indus., Inc., 735 S.W.2d 486,
487 (Tex. App.—Houston [1st Dist.] 1987, no writ). Starbranch should have been
given notice of when the trial court would consider Crowell’s new evidence. Tex.
R. Civ. P. 21 (b) (“An application to the court for an order and notice of any
hearing thereon, not presented during a hearing or a trial, must be served upon all
other parties not less than three days before the time specified for the hearing,
unless otherwise provided by these rules or shortened by the court.”). However,
Crowell did not provide Starbranch with notice of either a hearing or a submission
date on Crowell’s Motion to Consider the Supplemental Affidavit. Consequently,
Starbranch had no way of knowing how long she had to respond to Crowell’s new
evidence. Under these circumstances, Starbranch was unduly prejudiced.
To give Starbranch a full opportunity to respond to Crowell’s new evidence,
Starbranch should have been given notice of a hearing or submission date on
Crowell’s Motion to Consider the Supplemental Affidavit and adequate time to
respond to Crowell’s new evidence. Without notice of when Crowell’s new
evidence would be considered by the trial court or an opportunity to object or
otherwise respond to the new evidence, Starbranch was unduly prejudiced. Cf.
Sanders v. Capitol Area Council, 930 S.W.2d 905, 911 (Tex. App.—Austin 1996,
no writ) (“[A]llowing arguments made in the movant’s reply to be considered, after
45
the fact, as independent grounds for summary judgment would subvert the orderly
process contemplated by rule 166a and put the nonmovant to an unfair burden.”);
Extended Services Program, Inc. v. First Extended Serv. Corp., 601 S.W.2d 469,
470 (Tex. Civ. App.—Dallas 1980, writ ref'd n.r.e.) (“To hold otherwise would
permit the movant to take unfair advantage of the nonmovant by permitting the
movant to serve his summary judgment evidence on the nonmovant on the seventh
day before the hearing, thus requiring the nonmovant’s response to depend upon
leave of the court. This would be untenable under our summary judgment
practice.”).
For these reasons, the trial court abused its discretion by entering summary
judgment based upon new evidence that was not supported by good cause and that
unduly prejudiced Starbranch. Accordingly, the attorneys’ fee award should be
reversed and the case should be remanded to the trial court for further proceedings.
F. The trial court granted more relief than was requested in Crowell’s
Motion for Summary Judgment on Attorneys’ Fees.
A “motion for summary judgment must itself state specific grounds on
which judgment is sought.” McConnell v. Southside Independent School Dist., 858
S.W.2d 337, 339 (Tex. 1993). “The motion for summary judgment must stand or
fall on the grounds it specifically and expressly sets forth.” Id. “[A] summary
judgment cannot be sustained on a ground not specifically set forth in the motion.”
46
Id. “[A] literal reading of Rule 166a(c) and [other] authorities indicate that the
motion itself must state the grounds.” Id. (bold in original).
In other words, a movant may not file supplemental evidence to amend her
motion for summary judgment or to raise new and independent summary-judgment
grounds. Cf. McConnell, 858 S.W.2d at 339 (“When a motion for summary
judgment asserts grounds A and B, it cannot be upheld on grounds C and D, which
were not asserted, even if the summary judgment proof supports them and the
responding party did not except to the motion.”); Highland Capital Management,
L.P. v. Ryder Scott Co., 402 S.W.3d 719, 740 n.12 (Tex. App.—Houston [14th
Dist.] 2012, no pet.) (“A movant is not entitled to use its reply to amend its motion
for summary judgment or to raise new and independent summary-judgment
grounds.”).
In her motion for summary judgment on attorneys’ fees, Crowell specifically
sought $71,354.80 because, “[a]s outlined in Mr. Shely’s affidavit, $71,354.80 is a
reasonable fee given the actions of Starbranch and other defendants after Ms.
Crowell purchased property intended for her home and other development.” CR
370-71. This amount represented the fees allegedly incurred by Crowell between
February 28, 2013, and October 1, 2014. CR 386-479. Crowell’s motion did not
expressly seek the recovery of any other attorneys’ fees incurred by Crowell. CR
366-72.
47
Without demonstrating good cause,15 Crowell filed her Motion to Consider
the Supplemental Affidavit after the submission date for the summary judgment
motion. Compare CR836-63 and 1st Supp. CR3-6 with CR722-23. As expressly
acknowledged by Crowell, she filed her Motion to Consider the Supplemental
Affidavit to raise new and independent summary judgment grounds that she had
not presented in her summary judgment motion. CR834-35. Crowell submitted
the supplement to the affidavit of John B. Shely to the trial court because:
[It] describes additional fees incurred by Ms. Crowell in connection
with the pending motions on summary judgment as to attorneys’ fees
and for work performed on other litigation activities related solely to
Defendant Dr. Eileen K. Starbranch since November 1, 2014. These
fees are not included in the pending filings.
Consideration of the Supplement will allow the Court to
simultaneously evaluate the most recent attorneys’ fees incurred by
Ms. Crowell along with those previously submitted and will promote
judicial efficiency in resolving matters currently before the Court.
CR834-35 (bold and italics added for emphasis).
According to Crowell’s lead counsel, the attorneys’ fees incurred since November
1, 2014, totaled $19,345.50. 1st Supp. CR3-6. The trial court awarded most of
these fees (i.e., $19,245.50) even though they entailed a new and independent
ground for summary judgment that had not been sought in Crowell’s initial
15
Carpenter, 98 S.W.3d at 686 (“Our rules . . . provide that a trial court may permit an act to be
done after a period prescribed in other procedural rules upon a showing of ‘good cause.’ Tex. R.
Civ. P. 5.”).
48
summary judgment motion. Compare CR366-480 with CR836-63 and 1st Supp.
CR3-6.
The trial court erred by awarding $19,245.50 which was never specifically
requested in Crowell’s summary judgment motion. Tex. R. Civ. P. 166a(c);
Hourani v. Katzen, 305 S.W.3d 239, 255 (Tex. App.—Houston [1st Dist.] 2009,
pet. denied) (“A trial court errs in granting more relief than was requested” in the
summary judgment motion); LaGoye v. Victoria Wood Condominium Ass'n, 112
S.W.3d 777, 786 (Tex. App.—Houston [14th Dist.] 2003, no pet.) (“a trial court
cannot grant more relief than was requested by a motion for summary judgment”).
“When, as here, a trial court grants more relief by summary judgment than
requested, by disposing of issues never presented to it, the interests of judicial
economy demand that [this Court] reverse and remand as to those issues, but
address the merits of the properly presented claims.” Positive Feed, Inc. v.
Guthmann, 4 S.W.3d 879, 881 (Tex. App.—Houston [1st Dist.] 1999, no pet.).
Accordingly, this Court should reverse and remand as to $19,245.50 which was
never specifically requested in Crowell’s summary judgment motion.
CONCLUSION AND PRAYER
For the foregoing reasons, Starbranch respectfully requests that the Court
reverse the district court’s judgment and render judgment that Crowell take nothing
on her claim for attorneys’ fees under the Declaratory Judgments Act.
49
Alternatively, Starbranch requests that the Court modify the judgment to
dismiss the claim for declaratory relief and remand for a new trial on attorneys’
fees. Starbranch also asks for all other relief to which she is entitled, including
vacatur of the award of attorneys’ fees when the judgment to which it relates is
either modified or set aside.
Respectfully submitted,
NELSON S. EBAUGH, P.C.
/s/ Nelson S. Ebaugh
Nelson S. Ebaugh
Texas Bar No. 24007139
NELSON S. EBAUGH, P.C.
2777 Allen Parkway, Suite 1000
Houston, TX 77019
Ph (713) 752-0700
Fax (713) 739-0500
nebaugh@ebaughlaw.com
COUNSEL FOR APPELLANT
50
CERTIFICATE OF COMPLIANCE
Based on a word count run in Microsoft Word 2007, this brief contains
11,742 words, excluding the portions of the brief exempt from the word count
under Texas Rule of Appellate Procedure 9.4(i)(1).
/s/ Nelson S. Ebaugh
Nelson S. Ebaugh
CERTIFICATE OF SERVICE
On September 11, 2015, I electronically filed this Brief for Appellant with
the Clerk of Court using the eFile.TXCourts.gov electronic filing system which
will send notification of such filing to the following:
John B. Shely
Courtney B. Glaser
ANDREWS KURTH, LLP
600 Travis, Suite 4200
Houston, Texas 77002
JShely@andrewskurth.com
CGlaser@andrewskurth.com
/s/ Nelson S. Ebaugh
Nelson S. Ebaugh
51
APPENDIX
Tab Item
1. Order and Final Judgment, signed April 28, 2015 (CR1059-60)
2. Order on Defendant Starbranch’s Motion to Dismiss Action for
Declaratory Judgment and Action to Quiet Title, signed April 22,
2015 (CR1040)
3. Order Granting Motion for Summary Judgment on Attorneys’ Fees,
signed April 6, 2015 (CR917)
4. Settlement Agreement and Mutual Release, effective October 15,
2013 (CR866-908)
5. Certificate of Termination of a Domestic Nonprofit Corporation or
Cooperative Association (Jandor Gardens Association, Inc.), filed on
November 20, 2013 (1st Supp. CR120-22)
6. Tex. Bus. Orgs. Code § 22.152
7. Tex. Bus. Orgs. Code § 22.221
8. Tex. Bus. Orgs. Code § 22.235
9. Wise v. Conklin, No. 01–13–00840–CV, 2015 WL 1778612 (Tex.
App.—Houston [1st Dist.] Apr. 16, 2015, no pet.)
10. McGlown v. Ashford Park Homeowners Association, Inc., No. 01-08-
00619-CV, 2009 WL 1635310 (Tex. App.—Houston [1st Dist.] 2007,
no pet.) (mem. op.)
52
-t/'2312015 4;37:35 PM
ctlrl$ Dilnlel - Dl~trlct Clcti(
H~rrl5 County
l!nvclopc No: 8013488
B).': TOLMAN, TAMMY E
Ftled: 4123f2015 4::37:35 PM
CAUSE NO. 2013·14192
e
ELIZABIITH BOWARD CROWELL § IN THE DISTRICT COURT
§
vs. §
§
§ /fHRt_
JANDOR GARDENS ASSOClA1'fON, IN<.:., § '
GRORGRL. PARKER, £ VA K. J•AltKER, § ( 7)
SARAH WffiTING, RON WITTE, §
LAWREI\CE E.. PLOTS KY, RICK RAMBO. §
FRANCES RAMBO, DAVID D. STOCK, §
ANNAL. STOCK, WYMAN H. HERE."'IDREN, § S5Tll JUDIClA.J. DiSTRICT
MARY HERENDEEN, FEREIDOON §
SHARIF[, SOODY SHARIFf, EDWARD G. §
RTZK, BILLIE lUZK, BENJAMIN LEVIT, §
ERICA LEVIT, GARRETS. ~1ADDERRA1 §
GEORGE W. HAWJOlliS, EILE£N K. §
STARURANCH, CA11JERINE A. MORGAN, §
GEORGIA W. IDTCHCOCK, JAMF.S §
CA:Rl''ER., WALTER J. TAYLOR, ANITAJ. §
TAYLOR, AND ERIK 1\'IAZZIOTIA § BARIUS COUJ\'TY, TEXAS
On this day, 1tle Court has considered Defendant Eileen K. Starbranch's \'Starlmmch")
(i) First Axnendcd .Motion for Rcconsiderntion of Order Gnmting Plt\intift's Motion for Sttmm:rry
Judgment on Attomr:y$' Fee:,<~, (it) SupplemcmL tO Dllfendartt Stal'branch' s Moti'On to Dismiss
Actioo for Declaratory Judgment and Action to Quiet Title, and (iii) Defendunt Staibranch's
1059
On April 6, 2015, the Court entered an order resolving Crowell' s claim for declaratory
relief and awarding Crowell reasonable and necessary trial attorneys' fees in the amount of
$26,462.00 (the "Summary Judgment Order'}.
On April 14, 2015, the Court entered an Order Approving Nonsuit Without Prejudice as
to aU of Crowell's claims not addressed in the Summary Judgment Order.
On April 22, 2015, the Court entered an Order on Defendant Starbranch' s Motion to
Dismiss Action for Declaratory Judgment and Action to Quiet Tftle, finding that Starbranch' s
request for dismissal of Crowell's action to quiet title was rendered moot by Crowell's Notice of
Nonsuit Without Prejudice, and dismissing Crowell's claim for declaratory relief as moot
because it was resolved by the Summary Judgment Order.
It is therefore ORDERED that Starbranch's Post-Judgment Motions are DEN1ED.
It is further ORDERED that, for the reasons set forth in the Summary Judgment Order,
Plaintiff Elizabeth Howard Crowell is awarded attorneys' fees in the amount of $26,462.00 from
Defendant Eileen K. Starbrancb.
This is a Final Judgment.
SIGNED this 2 'irday of &-;!
2
HOU:3547662.t
1060
4/17/2015 2:18:31 PM
Chris Daniel • District Clerk
Harris County
Envelope No: 4935907
By: FLORES, DANIEL
Filed: 4117/2015 2:18:31 PM
Cause No. 2013-14192
Elizabeth Howard Crowell, § In the District Court of
§
Plaintiff, §
§
v. §
§
Jandor Gardens Association, Inc,, George L , §
Parker, Eva K. Parker, Sarah Whiting, Ron §
Witte, Lawrence E. Plotsky, Rick Rambo, §
Frances Rambo, David D. Stock, Anna L. § Harris County, Texas
Stock, Wyman H. Herendeen, Mary §
Herendeen, Fereidooo Shari£, Soody Sbarifi, §
Edward G. Rizk, Billie Rizk, Benjalillil §
Levit, Erica Levlt, Garret S. Madderra, §
George W. Hawkins, Eileen K.. Starbranch, § JURY TRIAL DEMANDED
Catherine A. Morgan, Georgia W. Hitchcock, §
James Carper, Walter J. Taylor, Anita J. §
Taylor, and Erik Mazziotta, §
§
Defendants. § 55°' Judicial District
Order on Defendant Statbranch's Motion to Dismiss
Action for Declaratory Judgment and Action to Quiet Title
Pending before the Court is Defendant Starbranch·s Motion to Dismiss Action for
Declaratory Judgment and Action to Quiet Title. The Co11I'1! has considered the motion and the
response filed by Plaintiff Elizabeth Howard Crowell, if any, and finds tb11t Starbrancb's request
for dismissal of Plaintiffs action to qwct tiUe was rendered moot by Plaintilf's Notice of
Nonsuit without Prejudice filed on Aprll9, 201 ~ ; hC>wever, Starbranch' s request for dismissal of
Plaintiff's claim for declaratory relief is well taken. Accordingly, it is hereby
ORDERED that Plaintiff Elizabeth Howard Crowell's action for declaratory judgment
that she filed against Starbranch is dismissed because the claim is moot.
0 2-z
Signed on --~--"--'1--------'' 2015.
1040
CAUSE NO. 2013-14192 tl
ELIZABETH HOWARD CROWELL §
§
IN THE DISTRICT COURT OF {1/A
§
§
vs § HARRIS COUNTY, TEXAS
§
§
JANDOR GARDENS ASSOCIATION, §
et al. §
§ 55TB JUDICIAL DISTRICT
ORDER GRANTING MOTION FOR S UMMARY JUDGMENT ON
ATTORNEYS' FEES
Upon consideration of Plaintiffs Motion for Summary Judgment on
Attorneys' Fees, Defendant Starbranch's 1response and objections, Plaintiff's reply
and supplement, t he Court finds that the Motion should be granted to the following
extent:
Plaintiff Elizabeth Howard Crowell is awarded judgment for attomeys' fees
in the a mount of 26,462.00, from Defend:mt Eileen K. Starbrancb. This amount
reflects the unrebutted $19,245.50 set out in John Shely's April 1, 2015, affidavit,
and $7,116.50 awarded from the amounts requested in Plaintiffs February 25,
2015, motion. To the extent the full amount requested by Plaintiff was not
awarded, the Court is sustaining the objectlons raised by Starbranch.
IT IS SO ORDERED.
SIGNED on the ~ day of A~
FILED
Chris Daniel
Dlstrlct Clerk
APR 0 6 2015
nme~~--,~~~~---
Hanlo County, Texa.
By-----~~-----
Deputy
917
SF.TfLJ:M f.ST A GR ~F.MENT AND ~flJTlJAt R F.L f.i\Sf.
Thi !' Se1tlemem Agreement and Mutual Relea~ (the "Ag.reemC7lt'") is bet\H!ffi: Elizah'J)Utes. claim~. and caw;es
of action made the subject of thi s Agreement No ()(her Defendantslw!sides Rick Rambo
;mel Frctne<:s Rambo filed any <:I aims or all ~ed cctusc.s of1on. Te;(as (U)c - Appenn. The L1w1mit. the
Cet•nterc.taim. :uld the Appeal may be coTi ectively referred to as the ''Liti ~'ltion.~
E. WllER.t:AS. tbt: Court grumed Plai.ntifrs M.o1ion for Summary Judgment and in tlmt
~rd signed Orders Or\ Augu-st 19, 20'13, and Or\ Oe1. 2013 and OctoberS. 20IJ Ordtrs for a. more
thoroush deS(;ription of the 1eal ptQJ)erty filing.s at issue ial the L.itisalion
866
Plaintiff002761
F. WHEREAS, Defendants deny ar1y liability to PlaintitT for a.ny disputes, claims, or alleged
causes ofactiou made the basis of the Litig.1tion.
G. WHEREAS, Plaintilf dMies any liability to Defendants for any disputes, claims, or
nllcgcd c.ausy em;)il or fax. M email or f;r\: transmission showing
that the signatory l1as signed this Agreernem shall be the cqtJivaJent of an original
$i~n"-tu re for al1 purposes
21. Notices.
1\ll notices that any Patty to this 1\ Sfccmem may be required or may wish to give in
connection, wi th this Agreement shall, be addressed to counsel: of record at the addresses
set fortb below (or at other sucJ1 C. 1415
Couisiana. 3CJII:i Floor, Houston, T~xa.s 77002, .e/ippt>r '§lm·svhwest.com.
871
Plaintiff002766
IN WITNESS WHEREOF, the Parties have executed this Agreement on the dates set
forth below.
EFFECTIVE DATE: October 15, 2013
[end of page]
7
872
Plaintiff002767
IMPORTANT: READ TlilS AGREEMENT ANU CONSULT WJ'I'H YOUR l..A'-VVF.R
JJI!.:fORE SlGNlNG!
THE STATE O.F TEXAS
COUNTY OF HARRIS
OE.FORE ME, the undetsij!;lled authority, onlhi~ day personally appeared ELT7..ABETH
HOWARD C)t0\"'ELL, known to me to be tl~e person wl1ose nam" is subscribed to the
fnrcgoing instrumem und acknowledged to me that she execute-d the same for the purpose& ruld
eom•idt•ration thet-ein exptt:sllt:d, aod in the capaeity tl)etein stated, and as h~r act and deed.
d.:!.
GIVF.N \JNDF.R MY HAND AND SF..AL Of OFFlCH lbis __L_~.~ day of
__jl~.tt--···---' W 13.
___.._______ -- _,. ,.......,_.,_ ...__ .. __ ........____ ______
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~
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873
Plaintiff002768
IMPORTANT ~ REAl} TJJIS AGRJ:o:f:MENT AN:O CONSULT Wfl'fl YOUlt u \.WYF.R
RK"Ii'ORE SlGNlNG!
JANDOR G.ARDE'NS ASSOCfATlON, INC
f?.·ic..k @etM-ko ___ _
l itle: ~----'-
'bir-<,.h-r
Signature:
TtH~ STATG Of 'l CX/\S
C'OUNTI' OF HARRIS
_ _,,_R
BEFORE
_. 1'ck_
Me, 1hc
f-1!.,,....,.1~
GARDE:"'S ASSOCIATlON. l!';C., knc.mn
undersig~K't!
t.~ .
tll
_
authority. on 1his day p.:f"\nnall~
~.( r-tu:f·~r- _____ ,__ _
.lpt~arcd
ol .lA 'WOR
me to he: the pet!{llll \.\hrdu s~.ated. tul•.l ~s lw; I·:! I acr .mel
deed.
(i!VE>J UNDER MY rl!\NO AND SEAl . or OffiCI" ~hi~ --~ ~
---~4!1ORTANT: IUt~l) nns AG~t<: I~Mfi~NT AND CONSU L T W ITH 'YOUR L AWYER
JJ'FJ'OR F. SfGN!NG!
THE STATE OF TEXAS
COUNTY ()F I fAlUUS
HFFORE ME, the undersig.oed authority, nn th1s day per~onally appesed. and.in the capacity therein $rated, and. m; her act and deed.
Gi VEN UNDER M'\' BAND AND SEAL OI·~ OJ'FlCF !his /t;>
----'--
day of
___ f.'!_ tn.unent :1.nd
GIVEN UNOF.R MY HA"ff) ANTI SEAL OF Off iCE this ____ [4 '2,_ day of
1\ I() 'v-r; Yn ~~ ')Q I 3
_;_
I "_' - - - - - ------"' .. .
U:~~J -df!-~:6 .
N()iary Puhlic In u.nd Por
The Stat~ of Texas
!J
- ·-· · -- - --~,-- · - ...... . ..... ..... .................... •• _ . . - - - - ... --·-·--·""'·~""'"..- · ··- ··· - · .............. ..... . . - . . ...... ....... ...... .. ..... . ....... ...... . . . ..... ... .. \ .''1'\\......\ .
876
Plaintiff002771
IMPORTANT: READ 1'HIS AGREEMENT ANll CON'SlJLT WITH YOUR Lt.\WY:ER
BEFOJU!: SIGNING! _, .JP bJ-1£)
By: ;~~VI IJ::'IJ(l~VJC
tf6~ed, alld io tlte capacity lh~rein stated, arJ.d as his aot ond deed.
r GtVEN tiNDER MY HAND AND SEAL OF OFFICE this /'J b day of
/}/17/C)I.. /::uvL
~-------·-
2013.
__/::~~i&::;__)-
/ )
Notury .Public In ilnd For
The State ofTe.x.as
12
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.,...,..,,~,,,,,,,,,,.,,,,,,,,,.,,,, ...,,.,.,,.... -----~~~-.....--- _
...... ............-...---....-....-..... -.-----
877
Plaintiff002772
IMPORTANT: Rt-:AO TlJIS AG REEMENT ANO CO~Sti LT WITH \'OCR J_\\VYER
RF..FORF.. SlGNlNG!
rHE STI\Tf: OF TEXAS §
COUNn· OF HA RR,lS *§
BEFORE ME. the undcr~ignl!d au:thonty, on !.his da) per:-N)ally ~[ip~at ~d RICh.
RAMBO. known to me to b.! the persuu whose name is subscribed to the f,)r-~going instrument
aml. ad.-ntwtleJ gt.-d tn me that l1e exe..:uted thc. same for tht~ purposes and constde.mtiou therein
tlXpressed. and in ·the capacity therein stated, and as h is <~t1' a nd deed
G£VE~ UNDFR iVJY HAND AND SEA L OF OtFilT this .-...../.~- tky ,,r
'/fl~4-~J .:w11.
- - -- ----------·--··------------. ____................-......_.._.
878
__ ____
.
Plaintiff002773
THE STATE OF ·r LXAS §
:;.
~
COUNTY OF I·IA'RR IS §
expressed . and in tile eupacily thertrin ~lal~d, m:ul m> her act and deed.
GIVE"l U:-JDER MY HAND AND Sl!J\.L OF OHlCE thii'
..ffi·t¥1-'?>l-~-· 2013.
/J P;/.:? ./'A·-....
t'~f.~ ?.:.!::::. .:f:::.~-!'..!!:"ii.?.
Notary Pt•blk !n ::1nd F01'
1 he Stale of Texas
l4
="'~-----·· --·----·--...------•··-••. ' '"'..
"''''''''''v•••••••• ••-....... •• _ _ _ _ _ _ _......,_,..,....,,..,....,,,,,,,.,, .. ,..,,_ ,,,.,,,,,,, ........- - -· · •
879
Plaintiff002774
J liE S'l ATf Of~TEX.~S
'COtlNlY 01· l-1 :\RRJ~
STOCK. knowl'l lj) me I:!J be Ole p~rson whqse Hl).IHC is subscrib<.<-d l(J ihe ro.r~~goin8 inslmm<.illt
~nd ackm~wlc-dged 1t1 me ihat he executed tbe same for 11-~£ purposes and t~CinsidcmtmJl therein
ci
CiTVEN UNDER MY HAND AND SEAl. OF .OFFICE this __ _/jL_ _'~·:___ dllY nf
/ (j ·'1
_ _L;_;£,/~~~~~-.~. . ,.LY.__ ~'t8t.~~
Notary Public ro and Far
1lw ~'tate of Tex,;1~
~------. ·-- --~-- ...
----~ ...
·-~·-...---·"- ....
- -·----~- ......... - .... ~,., ......................................................................................................... .......................................
880
\
Plaintiff002775
B1PORT ANT: RE4D THTS AGnEii:M~T AND CONSULT WITH \'O!JR L AWYER
BEFORE SlGNINGt /] ~.::.::..
By: <...#u.:-t;~/- ·~~~P,J(:'-b· ... -
Ai'it"N i\ L. STO K
THC STATP OF TF.X;\S. ..§
§
('OlTNTY OF H..~t.RRlS
*
BEfORE ME, tb.:- undc:rsign~u authority. on th.is day pcn;onally apr--ure,: /\Nl'\A 1•.
STOCK. known Lome to be. the person whose namr.! is sub~eribed to tbe fcm~gl,iUigncd aulhon:y, OJl this da} j)\!rsonull>· apJX""!.It..-J WVMAI\' H.
HERENDEEN, knou'tl l•) m:: lo h;,; lhe p.!~('f1 whose n:une is subscrib~d 111 the fi.H~going
instrument and acknowlcdge<.l to me fhr
The Stat.e ofTexa~
17
882
Plaintiff002777
IMI'~ORTAN'f: R EAD THIS AGREEMF~NT ANU CON~1JLT WHH VOVR l.AWYER
BEFORE Sl(iNfN'G!
I)Jt ~
Dy:
MA~RENO.EEN - -. - - - - - - -
THES1ATE OFT!;:XAS §
§
COUNTY OF HARRIS §
Bli'-rORE ME. the 1111d~-:11li£ned authority, on thi ~ day pt:rs&MIIy appc:tlr'ecl MARY
HEUENDEE;N. known w me to be the person whose name is subscnbe.d l .:!013.
~a) .--/ _ /~
- · - ~-·%~
Notary Public ln and For
----·- --
f'he State ofTexllll
·-· ·- ···- ..........._........... • . . . . . . . . . . . . . . . . . . _ _ _ _ _, _ _ , , . 00400010 . . . . . . . . . . . . . . . . . . . . . . ..
-.. -....... . ........... . . . . . . . . . . . . . . . . . . . ...........
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883
f.MPOR'JAJ.~l': .REAJ) THIS ACREE.I\-'tENT A,ND CONSUlT 'W{Tll YGU~ L AWYf!:R
BEFORE SIGNING!
Hy:
1 f.JF STATE Qf TC:XAs ~
~
COUNTY 0¥ HARRTS §
BEFORE Mt:.. the uodcrsigf1cd authoritY, on this day personaU:y- appettr<.'d nm.t:::tnOON
SHAU.Ili'l. kn0\\11l to me robe the pers0-n whose rmme i~ subscribed to th!l fmego'int~ instrun:renL
I~
884
Plaintiff002779
fMPORTANT: READ THIS ,\GREEMF.NT At~D CONSULT WlTH \OUR LAWYF.R
REFOR£ S1GN1Nf;!
By:
Tf-1 F. STATE OF TEX..<\ S *
§
C'OU:--JTY OF llARRtS
LiEFORE ME, tl1e undt:r!;ign~7J authority. on thb day pt:rsunall; <1ppc~r~d SOODY
and ::lcknowiedge;.l t(l me thw. sl1e ext:cuted the sa:me forth~ purpnst:s and cunsid~,·;Jti on therein
\~~pr~:sscc,i. and in the Mpac.ity therein $1.ated, and as her a(:t and dt:ed.
GlVE:-J lJ:Ni..ltlR MY HAN11 AND StAL OF mHCE this ~'7
- . lluy ul'
;;za..,..-e-4-;J~ . 2013.
____au:U_if:~,£k~
Nota.: Public In a11d For '
·--
AI'/}M L STOCK
The State uf Texas
~IY COMMiSSION trl(I>;Ms
tktober 6, 2018
---··
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885
Plaintiff002780
tMl'UllTANT: RE A]) TJ:HS AGltE.3Ml>.:NT AND CONSIJLT WITH Y()U{ LAWYKR
.B'l<:FORE SJ(;NJNO!
By:
THE.S1A11:: OF TEXAS
COUNTY OF HARRiS
BEFOR(; Mf·. the undersigned authority. ou this doy pt•rsnhally appt:otf~d [!)WARD C.
RlZK known to me to be tbc person '' ho~ name is ~ubscn~d w the foregoing iP:-.In·mcnt and
ackno;.vleclg,ed to rne that ht: execut<.ld the some for th~ purp~'>ses. and com:iu· ·:·woll lhcn:ir•
GIVEN UNOJ:R MY IJAND A D SEAL OF OFFrCE t!Hs :' 6>_ _ , _ day of
_::_(/~',ht?~~~---· zo !3
Nott•ry Publ.ic Jn and f or
The State ofTcxa.'l
----------~-- -- -·----·-···-·····-··-·····..········· ............. '' --
,....
886
....................................
Plaintiff002781
l~·IPOJH.~'IIT: RKAJ> THIS AGREE MJ<:NT AND CONSULT Wrfll VOnt LA WYJ.:R
Bl!.FORE SIGK"ING!
THE STATE OF TEXAS
Cot'":\TY OF HARRIS
BEfORE ME. file undct-sign\!d authori(y, on this d:~y 11er:r.onnlly appeared Bl LLIR
RlZK. known tn me to h\~ th.e ~,crson whose nann: is subscribed to the fo1~g.oing in;;tmrnt:nt MO
acknowlc..-dg.:d to me lhat she executed the same tor th..: purpos.:s and c(ln:-idt•t:ltion therein
c.xpresM!d, snd in the capacity then: in s1ated, and as her act and deed.
GIVEN L:NlWR M'Y I Ii\ND AND SEAL OF OFFICE this _ _ I L .. day
. 7 /J.
Notarj>...-l'~•blio !n 141d For
The State of Texas
'
----·"'~'""""""''''"'""'''"'''''''''"'"''''''"''''''~········--···
888
Plaintiff002783
Il\IPORTi\NT: READ Tf11S AGRtE.M ENT AND CONSt:LT W(TH YOUR LAWYER
.l lF.FORg SlGI'!l"G! By; ~vf
·.RTCA LE\"ff
-·--------:
THl:' STATE OF TEXAS §
§
COlTNl Y OF HARRIS §
BEFORE ME, th<: uJ}(lecsighed authority, on this dny personally appeared ERICA
Ll~VTT, kn.own to 111e to l.>c the person wh,>Sc name is subscl'ibed 1o \he foregoing itllltnJJ'nem .and
acl-.nowledgcd lo me that :)ile executed lho;; '>ame for the purpose~ and consideration thcrdn
e~prt!SS!!d, and lll t:he capacity therein SUited, and ttS bet act and deed.
01VEN UNDER MY HANl) AND SEAL OF OFFICE this ~f<.._.. day ()f
'/l'b:1!u!(.L~.- - 2013.
•
24
·------------···-----·-···-·...···..···-·····-..- -·····-···------...·------·····..······--·-·-·..····---...------·····---··- - · ...---
889
Plaintiff002784
IMPORTANT: RE ·\D UI!S AGREEM£~T AND CONSUl ,T WITH 1~m · R £ AWVF.R
BEFORE SJG~fNG!
By:
TllJ.: S I'A lli OF TI!XAS
COUI\ I Y Or HARRIS
BEFORE ME. the w1der.;igned •~uthority, on ;his day pcrsu11a1ly appeard W,\Lnm J.
TAYLOR, kMwn t<) me to hi,) the p¢t'!!.(>n whose name 1s subscribed to lhe~ t{m~gDin t! instrumt'1ll
cxprcss;ed, ~md in the capacity tht::.l'l::iJ1 sltiled. and a;; his acl and dt:ed
;d
G!VFI\' CKDF.R \1V I L~ND AND SEAL OF OFrrll. thi:.. I t(
-:-
- c.b y of
=.zz_v>t:~·vt~"l/-- . . 2013.
- - ·-·--· -· ----
Not.ary Public lJ~ nnd For
'l he SMe of rexas
25
..............................,.,_,.,..................,..______________________ , ...,. ..... ___
,. ------
890
Plaintiff002785
JMPORTAJ\"T: REA D HHS AGR.EEME!'\I'f ANU CONSUL'l' Wl TH YOVR LA.WY!tR
U£Ji'ORJ~: S1GNJNG'!
THE STATE Of TEXAS §
~
COl l'NTY OF HARRIS *
BEFORE M(!, rJw undt:rsigned authority, on this Qay pers(')nally a,ppcared A.<"liTA J.
e~pn~ssed, anal'll
code provinon$. 7ht.< fum; fmcilht•m/iJmru(t~N' fWYJWdw.l ur~ 1101 !wh.,·lflrl/c (fiJr 11~ tMI\'JIN fllrci ,\'Y!rtlt(·es oj eedur.::s for· windl1\g up rhe busioes~ and a0a1ts of the e.~lity in the mannef p• ovided irl
chapter II ofth~ Texas Business OrgBllizations C'ode (BOC). On completion of the winding up pJoce.ss,
a tllintt en tit)' mu.st li.le t1 ~rtitieatc: of tcrmlNition "itb tltc sc:cret:uy of Slate. /rrl\ fnrm ' n11ly
app/Jcoh/1! IO t/N! lt!I'»>IIKtlfnn tif(J IKNtj)N~flf C.'OJ'jXN'ttlllJJI t'N' 0 COO{~fY-1111'1! ll...~/afiOJI.
rn:u ructiou~ for Form
• Items l-4--Entity Information: The certifi cate of termination musi contain tJte le.gal name of ltle
t'tltity <~nd the file: number ~isnoo by thl! :s¢erctIIJXfJ.{il t'()I]}I'J{'fl fiQII or ( I C:WJXlrtllilf'it (~'l!Cified. Do not use pceftxes (e.g., Mr , Mrs , M$. ). Use the
suffix box only (or titles of lincag.c (c...g., Jr , Sr.. IU) and not for oilier sutftxt:S or titles (e.g" M.D.•
Ph D ). An address i~ .always required fi')( escll gcweming person.
Please note that a dooument on tile wiUl tbc secre1JUy or state IS a public record tha1 is subject 10 public
aoce.ss a11d disclosure. When providing addtess infonnation for g:<)\'emiog perso1~ use a business or'
J>OSt office box: address ntthcr than a rcsidooce address i 1 privacy concerns are an issue.
• hem 6-Everlt Rt>quiring Windin,2 lip: The certificate of tentlinatiOJl nlll$t state the natu~ of the
CJ\I fl'lelu.irin(l windUI(l up of tJte entity. $().';tions J 1.0$ I lO ll .059 of the
{.'\1 noc
C II and 22 of the BOC.
{2) There i$ no suit pending againSt the noopmlit corporation (}IT adeqtmte prov isioo has been made
t"or tl~ S<1tis factioo of" liD)' jud!,rmcnt. order or decree 1ftat may be entered agait\5.1 t11<: nonprofit
corpor~ion in 11 pending suit ,
(3) If 1fte nonprofit oorporation reiX!ived and held prop~ty pcm1itted to be used only fOt charimble.
religiOllS, efe~n osynary , b~ne,• oleut, edu~ l i<>1ll\l , or simil3t pu rpose:~. b~Jt tht= nonp•olit
oorporatioo did nOt bold 1fte propcsty 001 a COJlditioo requiring rewm, transfer. or cou\lcyance
bec..'lu~ oft he windi 11~ up a•.d tl!ll'llintniM, the tlisuit>ution ofthr11 propeny hilS been efl'ect.:tl in
accordan~ w'ith a plan of distribution ~dopted in compliance widt the BOC for the distributiOil
of th~t PfOper1)'
• Rrrcec iv en ~ (If Filing: ,\ Ce1"tific.'lte of t~nination becom.~s enective wt•en rlled b)' the ~creta ')'
of suue (optioo A). Hm.,e.v.er, pursuant to seclimts 4.052 and 4.053 of the BOC the etTecti~neS$ of
the irt~nnn..:n t may bt: dtla)' ~ h> ;1 date not mOJ'I! than ninely (<}())days from tl•t: date tho;: in:>trument
is signed (option B}. The elfectivenes:$ of the imtrument also mar be delayed 00 the ()CCUrT'ellCe of a
fl1tll•'l! e ...·wt or f<•Cl. other thM tlle ~SSIIg..: of tim..: (option C). tfopti()n C i~ ~lected, you must &tate
lhe mannel' in which tlte event or fact ~\ill cause the instrumem to take eflect and the date of 1fte 9fih
dJI}' al\.:r the dute tl•e instn.nn..:nt is ~gn~ In ordt:r t"oi' th~ ~ificate to take t:ff~t und~r optiOn C.
1he entjty must, \\ithin ninecy (90) da~ of the til in~ of t11e cenjficste, file a statement wi1ft the
sec~aty of stme regilrdiug the evevt or fact pu~uaut to s~tion 4 OS~ of the .UOC'
On tho;: fi ling of n dWrds of the
sec~ary of state will be ch3fl...!;Cd to show the filing of the doet1 nH~nt~ the date of the Iii ins, and the
future date 011 which the dO<:u.meot will be effective or evidence that the elTcG4i\'ettCS!> was
condi tioned on tile occurrence of a fitture event Of' fact ln addition, at the time of such fili1\_g, the
Status 6f tht: fil ii~ entity will be :shown as "voluntarily tcnmnated" oo d1e records of the secretary of
st3te
• F.-'l:ere not:uh::ed How.:vl!f, bt:fore si~lli!Jg , please reaf!Ti-•·
OR
111 01WA;\IIZAT IIIN
0 1'J;IUJfZ:'tJiitm .LV Omit
ADDRESS
Srr~l'l or Mmling IJ(/dre ..._, Store Ziv Cod¢
- - -
C.w c;,''"'"''
COVE.RNING PERSON 2
NAME ()'RESS
,Wr.:.·r o1· .~ failio~ vlddr<'.•s
- - -- -- - -- - -
( ·;rv S (ufe Co.rmlry
-- -- -- ---------
Zip Code
- - - -- -- -
4
EXHIBIT 8 - PAGE 4 OF 6
900
Plaintiff002795
GOVERN.ING"P&RSON 3
NAME (f1nluJ' th.:: mun.: uf dthc:t' an arhtividu:·•l c•r m1 '.uM_aui7:11h,n. l'ull out buth.)
II' INDI\ ' WI0.\1.
HNI .\ '{Nil<' \11 L119t .\'.!me S•li}1X
OR
n·ORGANU'..\ 110}1;
n r gmw::...Jium Vmu,-..
ADDRESS
Str.-...t or I ftrilir!J!: .Ir!dress. Ci~ll St111~ Cormiry Zip Ct>tle
GOVERNING PERSONA
NAME ( l!.n1« 1h~ muue- nf cuhcr•Htt andivitlu!\1 or :111 ot g:utiZlii HH\.. hu1nQt hffik)
Ill' l NDIYffil::\1.
J•w.:u Nom{· M. J / J(I.tl .Vamc :;uj]i."<
OR
fF 0Jl(;,\ XJ7. \ l'lON
()rg<111~i1/11Jn V.rmq
ADDRESS
S/rl!,•t 01' M 'a lfln!4 .lddr,•M CfN Stolt' Cvumw Zip Cod,•
Event Requi r ing Winding Up
(Ike ill~fr\lc!km$)
6. The nature of the event requiring winding up i:. set foitb below ( Sclccl Cllhor A n, (._ 1), or J' )
0 /\. /\voluntary decision to wind up 1he enJity has been approved in t11e m!lnner required by the
Texas Business Organizations Code and by tlw governing documents of the entity.
0 D. The period of duration specified in the governing documents of tJw entity ha.s expired.
0 c. The occun·ence of an event specified in the governing docum.ents of the entity that require,~
the winding ul), dissolution, ortermination of the entity
0 D. The occunence of an event speci fied in the Texas Business Organizations Code that require!~
rbe winding up. dissolution, or tennination of the entity
on
A court decree requiring the winding up, dissolution, or tennmation of the entity has been
0 E.
rendered under the provisiOJls ofth0 Texas Business Organizations Code orot·h er law.
Com t>letion of Winding Up
7. The tiling entity has complied with the provisions of the Texas Business Organizations Code
governing 1ts winding up
Sut>r lemental Inforrnnti:on Required For a Nonprofit Corporntiotl
The twder!signed authorized person actin~ 011 behalf of the named nonprofit corporation certilies that.
3
EXHIBIT B - PAGE 5 OF 6
901
Plaintiff002796
I. Any prop~rty of the nonprofit corpomtion l1as been transfened. conveyed. applied. or di sttibutcd in
accordance with chapter l Tand chapteJ 22 of the Texas Busine~s Orsanizations Code.
2 There is no suir per1ding against the nonprofi! corporation or that adequate ptovisio1' has been
made for the satisfaction of any judgment, order or decree that may be entered against the nonprofit
col'poration in a pending ~uil
~ T'f the nonprofit corporation r'eceived G. t
RJZK. BILLm RIZK, BENJAMIN LEVIT, §
ElUCA LEVlT, GARRETS. MADDERRA, §
Gl!.ORGE W. HAWKlNS, EILEEN K. §
STARDRANCD, CATHERJNE A. MORGAN, § .
~.,
GEORGIA W. HITCHCOCK, JAMES §
CARl'ER, WAVl'ER J. TAYLOR, .ANITA J . §
TAYLOR, AND ERlKMAZt.lOTTA § HARRIS COUNTY, TEXAS
ORDER
Oa tbia day, the Court considered tho Unopposed Motion for Entry of Order £ilod by
Plninti!f Eli:Gllhcth H"ow(U'd Crowell. The Cout't flnds Ulnt good oause o.xistB to GRANT the
mellon. For the reasons act out In PJ11intifrs Motion for Su.n\Jnory 1udgmcnt, and beoD\1$0 notice
required under Property Code § 204.006(1) & § 204.00S(c) wu not (liVen to PlaintlO',
lt is, cher·efore ORDERED that the "Notioc of Jlormnlion of Petition Committee" filed
Novc;mber 8, 2012 (Ha.rris CountY Clc:rk File No. 20120521806) hils no force and elleol, is ,.
'
nullified, and is no longer a cloud on the tlllc to, and t ight of ownership o~ the Proper1y;
t~ is further ORDERED that the "Pel\llon Approval" tiled Novernbor 8, 2012 (Harrl.s
Count)' Clerk Pilo No. 20120S21807) has no foroc -"d effeot, ir. nulliflod, e.nd is no loneer a
cloud on the title to, nnd right of ownership of, the l'ropet1y;
FILED
Chrl& DaniOI
Dl•trlct Cltrk
IJOU:3lS019U OCT 0 8 2013
EXHIBIT C - PAGE 1 OF 4
903
Pia intiff002798
J
It ia further ORDERED that the "Petition and First Amondmoat to Declaration Cot Jandor
Oardens" fJJcd November 8, 2012 (HilU"is County Clerk File No. 20 12052 1808) has no force and
effect, is nullified, and b no longer o cloud on tho title to, und right of ownership of, the
Property;
lt Is further ORDERED that the "Petition Pursuant to Pcopert)' Cod.e § 204.006 To Crelltc
TI1e Jandor Gardens Association, lno.'' filed November 19, 2012 (Ha·rris Collnty CleTk File No.
20!20536661) has no force und effect, is nullified, and is no loogcr a olou.d on the title to, and .'
right of ownership of, the Property;
lt is furthor ORDERED that the "First Amendment to Deoloretion for Jandor GDrdeos"
r
filed November 20, 2012 (Harris County Clerk File No. 20120S40l6'2)hu no fon:e and effect, is
nullified, and is no longe1' a cloud on the title to, a.nd right of ownership of, the Ptoporty;
It is further ORDERED that the "Notice of Porroatlon of Petition Ulmmittu'' filed
November 14, 2012 (Harris County Clerk File No. 20120530364) has no force and effect, Is
nullified, and is no lonur a cloud on the title to, lllld right of owntll'ship of: the Pro pony; sud
It ir further ORDERED that tho ''First Amcndrnont to Docloradon for J'andor Gardens"
fllcc:l March 19, 2013 (Harri~ County Cl11rk File No, 20130126400) hns no tbcoo and e!Tect, is .
'
•f
.
nullltlcd, and Js no longcc a clo\ld on the Iillo to, and right of ownership of. the Property.
'l'hls Order in no manner affcot5 tl1c right of any party to appeal the Order. ~~
~.
Y:;' day of_....:rO~J-
'-
0
.....
0 SIONBD this _ ___.2013.
l!•
.,.,...,
~
g
,...
.,.,
Rou.mom.2
EXHIBIT C • PAGE 2 OF 4
l
f
904
Plaintiff002799
JuniY m, Shely Eri~ppcr { / ·
S c arNo .. lS215300 ~lo.Bar N~920.0.Q,
C u ·ey B. Glaser HIRSCH & WESTHETMER., P.C.
S Bar No. 24059824 1415Louisiona, 36th Floor
~ RRWS KURTH LLP Houston, Texas 77002
600 Travis, Suite 4200 7t3.220.9181 Telephone
Houston, Texas 77002 713.223.9319 Facsimile
713.220.4200 Telephone
71 ~.220.4285 Facsimile ATTORNEYFORDEFBNOANTS
WYMAN & MARY RBRENDEEN,
ATIORNBYS FOR PLAINTIFF BENJAMIN & ERlCA LEVIT,
ELIZABETH HOWARD CROWELL LAWRENCE E. PLOTSKY,
RlCK & FRANCES RAMBO,
.E!DW hRD & BlLLTE RlZK.
FE.RBIDOON & SOODY SHAlUFl,
DAVID & ANNA STOCK,
WALTER & ANITA TAYLOR. and
~t&- ·
SARAH WHITING & RON WITTE
By: ~ ..
J&Jnes 1. McConn, Jr.
State Bar No. 13439700
HAYS McCONN RICE & PlCKBRlNG
1233 Wost Loop South, Suite 1000
Houston, Tex.as 77027
713.654.111 1 Telephone
713.650.0027 Facsimile
ATTORNEY FOR DEFENDANTS
JANDOR GARDENS ASSOCIA-TION, INC.,
!tON WITr.B, RICK RAMBO,
WYMAN H. HERENDEEN, ANNAL.
STOCK., and FBREIDOON SHARJFI
,IIOU:3lS0701.l
EXHIBIT C - PAGE 3 OF 4
905
Plaintiff002800
I, Chris Daniel, District Clerk ofHanis
County, Texas certify tbat t.his i.s a true and
correct copy of the original record filed artd or
recorded in my office, electronically or hard
copy, as it appears on this date.
Witness my oftloiaJ hand and seal of office
this October25. 201.3
Certified Doc.umcnt Number: 57702657 Total Pages: 3
Chris Daniel, DISTRICT CLERK
HARRIS COUNTY, TEXAS
Tn accorda'nce with Texas Gove)·nment Code 406.0l3 electronically transmitted authenticated
documents are valid. If there is a ques tion regarding the validity of this document and or seal
please e-mail support@hcdistrictclerk.com ·
EXHIBIT C- PAGE 4 OF 4
906
Plaintiff002801
~~~..-~r- ..
n
~ ....
~'!ltt Q6 •'
EXHIBIT 0 - PAGE 1 OF 2
907
Plaintiff002802
EXHIBIT 0 - PAGE 2 OF 2
908
Plaintiff002803
Corporations Section Carlos Cascos
P.O.Box 13697 Secretary of State
Austin, Texas 78711-3697
Office of the Secretary of State
The undersigned, as Secretary of State of Texas, does hereby certify that the attached is a true and
correct copy of each document on file in this office as described below:
Jandor Gardens Association, Inc.
Filing Number: 801686494
Certificate of Termination November 20, 2013
In testimony whereof, I have hereunto signed my name
officially and caused to be impressed hereon the Seal of
State at my office in Austin, Texas on April 02, 2015.
--
Carlos Cascos
Secretary of State
Come visit us on the internet at http://www.sos.state.tx. us/ 119
Phone: (512) 463-5555 Fax: (512) 463-5709 Dial: 7-1-1 for Relay Services
Prepared by: SOS-WEB TID: 10266 Document: 599592520005
1112a12013 12 37 7135211633 SCHULTZ PAGE a2/Hl
Thts space reserved for office use
Form 652
(Rev1sed OS/11) F ll E 0
In the Offtce of tne
Return m duphcate to Secretary of State of Texas
Secretary of State
P 0 Box 13697 NOV 2 0 2013
Austm, TX 78711-3697 Certificate of Termination
512 463-5555 of a Domestic Corporations Sectron
FAX 512 463-5709 Nonprofit Corporation or
Filing Fee $5 Coo erabve AssQCJatlon
Enttty Information
v
2 The enttty ts orgamzed under Texas law as a 12?nonprofit corporation 0 cooperatt~e assocultiOO
3 The date of formatiOn of the entity IS II- I~- I'-
4 The file number Jssued to the entity by the secretary of state IS
Governmg Persons
5 The names and addresses of each of the entity's govemmg persons are (see m>tm<.w.>n•l
GOVERNING PERSON I
NAME (Entcr the name ot c1ther an mdrv1du11l or at~ Of"&\lOI?.3tJOn. but not both}
IF li'olJIVItll'AL
Ftr~Name
f!:.·'ck. '- 1<'3"" /,,
t1/ ~JName Sr!ffi>
OR
IF ORGANIZATION
Organl:all()n Name
ADDRESS
5 3:l.'Zl X:p,;f,-{,.r.~
Street or MalitnJ?. Addres>
L,., tfo .. s.fPt~
Oty
IX 77ao5
Stat< romurv LmCode
GOVERNING PERSON 2
NAME (Enter the name of<:1ther an mdwtdua1 or an o.rgamzutmn but nul both )
IF INDIVIDUAL
1....1'1. - ..... l~· L+ • """' ... et...Ml-c...t
F1rsl Nome Last Name Suffix
OR
IF ORGANIZATI0:-1
~ --~~d 0 "' 1 Hlll
Organt=allon Nam£
'
tll~
' tl/)i . ~ 'n WI
ADDRESS
~N.$'1'1 I lA LAAJG A).:.> IV /v
r
TX: +7-aor-
'ib·eet or Ma•lmg Address Cuy Mate '()!t!fff'\J 7to CQde
GOVERNING PERSON 4
NAME {Enter m, natl'l¢ ofetttu:r an mdlVIdual or an ()rgamzabon llut not both}
IF 11'1)1\'ID\lAJ,.
Fu•st Name Ml Last~ame Stif}"
OR
IF ORGANIUTION
Orgam::;.afion Varne
ADDRESS
,_
Stteer or Mailing Address Cltv State ('ntmtJ \ Zm ('Qde
Event Requmng Wmdmg Up
(See mstruc:tton& )
6 The nature of the event requmng wmdmg up IS set forth below {'>elect etthcr "' B C' D orE )
A voluntary dec1ston to wmd up the ent1ty has been approved m the mannet requrred by the
Texas Busmess Orgamzat1ons Code and by the govermng documents of the enltl)'
DB The penod of duration spectfied m the govermng documents of the enuty has exprred
De The occurrence of an event spec1fied m the govemmg documents of the enttty that reqmres
the wmdmg up, dtssolutJon, or termmatwn of the entlly
DD The occurrence of an event spectfied tn the Texas Busmess Orgaruzanons Code that reqmre~
the wmdmg up, dtssolutton, or termmatton of the entity
A court decree requmng the wmdmg up, dtssolutwn, or termmatton ofthe entlt} has been
rendered under the provtstons of the Texas Bustness Orgaruzabons Code or other Jaw
Completion ofWmdmg Up
7 The fihng entity has comphed wtth the provtstons of the Texas Busmess Organmttlon~ Code
govermng tts wmdmg up
Supplemental Information Requu·ed For a Nonprofit Corporatum
The understgned authom:.ed person actmg on behalf of the named nonprofit corporatiOn certifies that
Fmm652 5 121
EXHIBIT 8 ~PAGE 5 OF 6
11/20/2013 12 37 7135211633 SCHULTZ PAGE 04/16
'I Any property of the nonprofit corporation has been transferred, conveyed, apphed, or d!stnbuted 111
accordance w1th chapter 11 and chapter 22 of the Texas Busmess Orgamzat10ns Code
2 There 1s no su1t pendmg agamst the nonprofit corporatiOn or that adequate provisiOn has been
made for the satJsfactton of any JUdgment, order or decree that may be entered agamst the nonprofit
corporat10n m a pendmg smt
3 If the nonprofit corporation recetved and held property perrmtted to be used only tor chantable
rehg1ous, eleemosynary, benevolent, educational, or s1m1lar purposes, bUt the nonprofit corporatiOn
d1d not hold the property on a condtt1on requmng return, transfer, or con'l>eyance because of the
wmdmg up and termmatton, that the d!Stnbubon of that property has been effeeted m accordance w1th
a plan of d1stnbutton adopted m comphaoce wtth the BOC for the d1stnbut1on ot that property
Effectiveness of F1hng (Select either A B, or c )
~Tills document becomes effectJVe when the document ts filed by the secretary of ~tate
B D Thts document becomes effe<:ttve at'a later date, whtch IS not more than nmety (90} days from
the date of s1gmng The delayed effective date IS
C D Tills document takes effect upon the occurrence of the future event or fact, other than the
passage of tJme The 90'0 day after the date of s1gmng ts
Execuhon
The undersigned stgns th1s document subject to the penalt1es rrnposed by law for the ~ubmtsston of a
matena!ly false or fraudulent mstrument and certifies under penalty of perJury that the undersigned IS
autbonzed under the provtsJons of law govermng the ent1ty to execute the filmg mstrument
Date
By
A person authonz;d by law to ~ecute tht. tHing mo;lrumcm
(sec tnsttuctton:s}
1(/eK L /{.4/?'JE{)
Prmted or typed name of a.uthonzcd persoQ
Fonn 652 6 122
EXHIBIT 8 - PAGE 6 OF 6
§ 22.152. Immunity from Liability, TX BUS ORG § 22.152
Vernon's Texas Statutes and Codes Annotated
Business Organizations Code (Refs & Annos)
Title 2. Corporations (Refs & Annos)
Chapter 22. Nonprofit Corporations
Subchapter D. Members
V.T.C.A., Business Organizations Code § 22.152
§ 22.152. Immunity from Liability
Effective: January 1, 2006
Currentness
The members of a corporation are not personally liable for a debt, liability, or obligation of the
corporation.
Credits
Acts 2003, 78th Leg., ch. 182, § 1, eff. Jan. 1, 2006.
V. T. C. A., Business Organizations Code § 22.152, TX BUS ORG § 22.152
Current through Chapters effective immediately through Chapter 46 of the 2015 Regular Session
of the 84th Legislature
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
§ 22.221. General Standards for Directors, TX BUS ORG § 22.221
Vernon's Texas Statutes and Codes Annotated
Business Organizations Code (Refs & Annos)
Title 2. Corporations (Refs & Annos)
Chapter 22. Nonprofit Corporations
Subchapter E. Management
V.T.C.A., Business Organizations Code § 22.221
§ 22.221. General Standards for Directors
Effective: January 1, 2006
Currentness
(a) A director shall discharge the director's duties, including duties as a committee member, in
good faith, with ordinary care, and in a manner the director reasonably believes to be in the best
interest of the corporation.
(b) A director is not liable to the corporation, a member, or another person for an action taken or
not taken as a director if the director acted in compliance with this section. A person seeking to
establish liability of a director must prove that the director did not act:
(1) in good faith;
(2) with ordinary care; and
(3) in a manner the director reasonably believed to be in the best interest of the corporation.
Credits
Acts 2003, 78th Leg., ch. 182, § 1, eff. Jan. 1, 2006.
V. T. C. A., Business Organizations Code § 22.221, TX BUS ORG § 22.221
Current through Chapters effective immediately through Chapter 46 of the 2015 Regular Session
of the 84th Legislature
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
§ 22.235. Officer Liability, TX BUS ORG § 22.235
Vernon's Texas Statutes and Codes Annotated
Business Organizations Code (Refs & Annos)
Title 2. Corporations (Refs & Annos)
Chapter 22. Nonprofit Corporations
Subchapter E. Management
V.T.C.A., Business Organizations Code § 22.235
§ 22.235. Officer Liability
Effective: January 1, 2006
Currentness
(a) An officer is not liable to the corporation or any other person for an action taken or omission
made by the officer in the person's capacity as an officer unless the officer's conduct was not
exercised:
(1) in good faith;
(2) with ordinary care; and
(3) in a manner the officer reasonably believes to be in the best interest of the corporation.
(b) This section shall not affect the liability of the corporation for an act or omission of the officer.
Credits
Acts 2003, 78th Leg., ch. 182, § 1, eff. Jan. 1, 2006.
V. T. C. A., Business Organizations Code § 22.235, TX BUS ORG § 22.235
Current through Chapters effective immediately through Chapter 46 of the 2015 Regular Session
of the 84th Legislature
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
Wise v. Conklin, Not Reported in S.W.3d (2015)
2015 WL 1778612
2015 WL 1778612
Only the Westlaw citation is currently available.
SEE TX R RAP RULE 47.2 FOR DESIGNATION AND SIGNING OF OPINIONS.
Court of Appeals of Texas,
Houston (1st Dist.
Kerry Ann Wise, Appellant
v.
Connie Lou Conklin, Appellee
NO. 01–13–00840–CV | Opinion issued April 16, 2015
Synopsis
Background: Purchaser filed suit against vendor's former wife, asserting claims for slander of title
and tortious interference with contract arising out of wife's refusal to release abstract of judgment
that was recorded after vendor sold property to purchaser, and sought declaratory judgment that
abstract had no effect against property, and attorney fees. The 157th District Court, Harris County,
entered partial summary judgment for purchaser on claim for declaratory relief, but denied request
for attorney fees, and entered judgment for wife on tort claims. Purchaser appealed.
Holdings: The Court of Appeals, Terry Jennings, J., held that:
[1] abstract judgment recorded after vendor sold real property to purchaser could not have created
lien on real property, as required to support claim for slander of title;
[2] wife did not willfully and intentionally interfere with purchaser's subsequent attempt to sell
house, as required to support claim for tortious interference with contract; and
[3] action for declaratory judgment that abstract of judgment “had no force or effect on property,”
was one for removal of cloud on property for which attorney fees were not available.
Affirmed.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
Wise v. Conklin, Not Reported in S.W.3d (2015)
2015 WL 1778612
West Headnotes (4)
[1] Appeal and Error Insufficient discussion of objections
Purchaser waived claim on appeal challenging legal sufficiency of evidence to support
trial court's conclusion that vendor's former wife committed slander of title by recording
abstract judgment on property after by challenging only trial court's finding with respect to
requisite element that judgment clouded purchaser's title and made it impossible for her to
sell property, and by failing to make any argument in her appellate brief as to sufficiency
of evidence to support trial court's findings on other four requisite elements.
Cases that cite this headnote
[2] Libel and Slander Actionable words or conduct relating to title
Abstract judgment obtained by vendor's former wife and recorded after vendor sold real
property to purchaser could not have created lien on real property, as required to support
claim against former wife for slander of title arising out of wife's refusal to remove abstract,
where purchaser owned property at time abstract was recorded, and wife could not have
refused to release lien that did not exist on property.
Cases that cite this headnote
[3] Torts Contracts in general
Vendor's former wife did not willfully and intentionally interfere with purchaser's
subsequent attempt to sell house, as required to support purchaser's claim for tortious
interference with contract, by allegedly refusing to release abstract of judgment recorded
after vendor sold property to purchaser; wife's attorney testified that he received calls
about abstract of judgment after it was recorded, that he did not understand why callers
were asking for release since abstract against husband did not create lien on property that
did not belong to him at time abstract was recorded, that he did not release abstract, and
that he thought title company, which had refused to issue title policy due to abstract, could
make exception, and purchaser admitted that she did not know why wife did not release
abstract could not “get into [wife's] mind to know that.”
Cases that cite this headnote
[4] Costs Declaratory judgment
Quieting Title Costs
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Purchaser's action for declaratory judgment that abstract of judgment recorded by vendor's
former wife on property after vendor had sold property “had no force or effect on
property,” was one for removal of cloud on property presented by abstract of judgment for
which attorney fees were not available, where purchaser stated in petition that she filed
suit against wife in order to remove cloud from title.
Cases that cite this headnote
On Appeal from the 157th District Court, Harris County, Texas, Trial Court Case No. 2011–
32399
Attorneys and Law Firms
Lennon C. Wright, for Kerry Ann Wise.
Kirk W.W. Evans, for Connie Lou Conklin.
Panel consists of Chief Justice Radack and Justices Jennings and Keyes.
MEMORANDUM OPINION
Terry Jennings Justice
*1 Appellant, Kerry Ann Wise, challenges the trial court's judgment, entered after a trial to the
court, in favor of appellee, Connie Lou Conklin, in Wise's suit seeking to remove an alleged cloud
from a title to real estate and to recover damages for slander of title and tortious interference with
a contract. In three issues, Wise contends that the evidence is legally and factually insufficient to
support the trial court's judgment and the trial court erred in denying her request for attorney's fees.
We affirm.
Background
In her third amended petition, Wise alleged that on or about July 6, 2010, she purchased from
Warren Clay Fry a piece of property located at 20210 Pittsford, Katy, Harris County, Texas 77450
(the “Pittsford Property”). In connection with the transaction, Wise performed a title search, which
showed that the property was unencumbered. Following her purchase, Wise renovated the Pittsford
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Property and received an offer to buy the property. As Wise and her buyers prepared to close
the transaction, the title company discovered that Fry's ex-wife, Conklin, had filed an Abstract of
Judgment against Fry approximately one month after Wise had purchased the Pittsford Property.
According to Wise, the abstract affected her ability to transfer the property to her buyers because
it clouded her title. Wise attempted to resolve the title issue with Conklin and her attorney, Patrick
O'Fiel. However, Conklin refused to “release the property.” Because of the “cloud on the title,”
Wise suffered damages, including loss of a sale, lost business opportunities, lost profits, and
expenses in maintaining the property. Wise sought removal of the alleged cloud from the title,
damages for slander of title and tortious interference with a contract, and attorney's fees.
At trial, Wise testified that she entered into a contract to purchase the Pittsford Property from
Fry for $86,000.00. The title company checked the property's title and determined “there were
no encumbrances, no liens, and the property was free and clear.” Fry executed and recorded the
deed, which transferred the property to Wise on July 23, 2010. Following her purchase, Wise
renovated the Pittsford Property with the help of her construction superintendent, Michael Dunn.
In connection with the renovations, she incurred expenses of $62,104.59, plus $20,500.00 for
Dunn's services and expenses. Subsequently, she entered into a contract to sell the property to
John Lawrence and Aline Morales Packard for the purchase price of $206,500.00. She stood to
make a profit of $37,895.41 on the sale.
Wise, however, could not close the sale with Lawrence and Packard because “the title was ...
cloudy” due to the Abstract of Judgment recorded on August 19, 2010 by Conklin. The abstract
stated that Conklin had received a judgment against Fry for $375,609.50 on November 12, 2009. 1
*2 Upon learning of the abstract, Wise and Dunn attempted to contact Conklin and O'Fiel to
explain their problem with selling the Pittsford Property. Conklin told Wise that “she would do
nothing to help.” And O'Fiel told Wise that “he could do nothing” and “his client [Conklin] refused
to release the lien.”
On October 26, 2010, Wise wrote a letter to Conklin and O'Fiel explaining that she could not sell
the Pittsford Property to Lawrence and Packard because of the “clouded title” and requesting that
they “please lift th[e] cloud.” She received no response. On November 29, 2010, Wise's attorney
sent, by certified mail to O'Fiel, a letter in which she explained that the abstract “resulted in
clouding ... Wise's title to th[e] property” and caused Wise to lose her sale of the property “because
the title company refused to issue title insurance.” Wise's attorney requested that Conklin sign a
“Partial Release of Abstract of Judgment for ... Wise's property.” O'Fiel did not respond. Wise
stated that she did not know why Conklin would not release the abstract and could not “get into
[her] mind to know that” but opined that Conklin felt “[r]etaliation against the house” and “anger.”
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In his deposition, O'Fiel testified that, as a result of divorce proceedings between Conklin and
Fry, Conklin secured a judgment of approximately $375,000.00 against Fry. Six or seven months
after the entry of that judgment, O'Fiel filed the Abstract of Judgment. He subsequently received a
telephone call from “somebody” asking about the abstract and for a release of it. O'Fiel looked into
the matter, but did not release the abstract. O'Fiel admitted to receiving Wise's personal letter and
her attorney's letter, with a proposed Partial Release of the Abstract of Judgment, and stated that he
had been notified by “[s]omebody ... claim[ing] that a title company would not issue [a] policy.”
Finally, Lennon Wright, Wise's trial attorney, testified that his rate is $350.00 per hour and Wise
had incurred $1,750.00 in reasonable and necessary attorney's fees related to the removal of cloud
from title.
The trial court rendered a take-nothing judgment against Wise on her claims for slander of title
and tortious interference with a contract. And it issued findings of fact and conclusions of law.
The trial court did not award Wise attorney's fees related to her action to remove a cloud from the
title, upon which the court had previously granted Wise summary judgment.
Sufficiency of Evidence
In her first issue, Wise argues that the evidence is legally and factually insufficient to support the
trial court's finding and conclusion of law that Conklin did not commit slander of title because
“[t]he refusal to release a lien created by an abstracted judgment on a homestead which results in
a loss of a sale can constitute a slander of title.” In her third issue, Wise argues that the evidence
is legally and factually insufficient to support the trial court's conclusion of law that Conklin did
not tortiously interfere with her contract to sell the Pittsford Property to Lawrence and Packard
because she “entered into a valid earnest money contract for the sale of the property,” Conklin “had
actual knowledge of ... the contract that existed between [Wise] and the purchasers [and] ... a clear
cut indication about what would happen if she continued to refuse to release the lien,” Conklin's
“refusal to release the Abstract of Judgment was the proximate cause of [Wise's] damages,” and
Wise “sustained damage” by losing the sale of the property.
*3 In an appeal from a judgment rendered after a trial to the court, 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 supporting them, just as we would review a jury's findings. Catalina v. Blasdel,
881 S.W.2d 295, 297 (Tex.1994). In conducting a legal-sufficiency review, we consider all of
the evidence in the light most favorable to the verdict and indulge every reasonable inference
that would support it. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex.2005). In determining
whether legally sufficient evidence supports the finding under review, we must consider evidence
favorable to the finding if a reasonable fact finder could consider it, and disregard evidence
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contrary to the finding unless a reasonable factfinder could not disregard it. Id. at 827; Brown v.
Brown, 236 S.W.3d 343, 348 (Tex.App.–Houston [1st Dist.] 2007, no pet.). In a legal-sufficiency
challenge on an issue on which an appellant bears the burden of proof, she must demonstrate that
the evidence conclusively established all vital facts to support the issue. Dow Chem. Co. v. Francis,
46 S.W.3d 237, 241 (Tex.2001); Reliant Energy Servs., Inc. v. Cotton Valley Compression, L.L.C.,
336 S.W.3d 764, 781 (Tex.App.–Houston [1st Dist.] 2011, no pet.). In reviewing such a matter-
of-law challenge, the court employs a two-part test. Reliant Energy, 336 S.W.3d at 781. The court
first examines the record for evidence that supports the finding, while ignoring all evidence to
the contrary. Dow Chem., 46 S.W.3d at 241; Reliant Energy, 336 S.W.3d at 781. If there is no
evidence to support the finding, the reviewing court examines the entire record to determine if
the contrary proposition is established as a matter of law. Dow Chem., 46 S.W.3d at 241; Reliant
Energy, 336 S.W.3d at 781. If the contrary proposition is established conclusively, the issue is
sustained. Dow Chem., 46 S.W.3d at 241; Reliant Energy, 336 S.W.3d at 781.
In conducting a factual-sufficiency review, we review all of the evidence in a neutral light and will
reverse only if the evidence supporting the finding is so weak or the finding is so against the great
weight and preponderance of the evidence that it is clearly wrong or manifestly unjust. SeeDow
Chem., 46 S.W.3d at 242; Plas–Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex.1989).
When a party is challenging the factual sufficiency of a finding regarding an issue upon which
she had the burden of proof, she must demonstrate that the adverse finding is against the great
weight and preponderance of the evidence. Dow Chem. Co., 46 S.W.3d at 242; Reliant Energy,
336 S.W.3d at 782.
We review a trial court's conclusions of law as legal questions, de novo. BMC Software Belgium,
N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex.2002). Although a trial court's conclusions of law
may not be challenged for factual sufficiency, we may review the legal conclusions drawn from
the facts to determine whether the conclusions are correct. Id. If we determine that a conclusion
of law is erroneous, but the trial court nevertheless rendered the proper judgment, the error does
not require reversal. Id.
Finally, we note that, in a bench trial, the trial court is the sole judge of the witnesses' credibility,
and it may choose to believe one witness over another; a reviewing court may not impose its
own opinion to the contrary. SeeGolden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761
(Tex.2003); Zenner v. Lone Star Striping & Paving L.L.C., 371 S.W.3d 311, 314 (Tex.App.–
Houston [1st Dist.] 2012, pet. denied).
Slander of Title
[1] Wise asserts that “[t]he refusal to release a lien created by an abstracted judgment on a
homestead which results in a loss of a sale constitutes a slander of title” and “[t]here is no question
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that the abstracted judgment clouded [her] title and made it impossible for her to sell” the Pittsford
Property.
To recover in an action for slander of title, a party must allege and prove: (1) uttering and publishing
of disparaging words; (2) falsity; (3) malice; (4) special damages; (5) possession of an estate or
interest in the property disparaged; and (6) the loss of a specific sale. SeeWilliams v. Jennings,
755 S.W.2d 874, 879 (Tex.App.–Houston [14th Dist.] 1988, writ denied). In her brief, Wise only
addresses the last element, loss of a specific sale. Notably absent from her brief is any discussion,
analysis, argument, or supporting authorities addressing the other necessary five elements of her
slander of title claim.
*4 A party that raises a legal-sufficiency challenge to a finding on an issue on which she bears the
burden proof must demonstrate that the evidence conclusively establishes all vital facts to support
the issue. SeeDow Chem., 46 S.W.3d at 241. And a party challenging the factual sufficiency of a
finding regarding an issue on which she has the burden of proof must demonstrate that the adverse
finding is against the great weight and preponderance of the evidence. See id. By not offering any
discussion, analysis, argument, or supporting authorities related to all of the required elements of
her slander of title claim, Wise cannot maintain her legal and factual-sufficiency challenges.
Further, an appellant's brief must contain a clear and concise argument for the contentions made
with appropriate citations to authorities and to the record. TEX. R. APP. P. 38.1(i). A failure
to provide substantive analysis of an issue or cite appropriate authority waives the complaint.
SeeRichard v. Cornerstone Constructors, Inc., 921 S.W.2d 465, 469 (Tex.App.–Houston [1st
Dist.] 1996, writ denied). Accordingly, we hold that Wise has waived her challenge to the trial
court's finding of fact and conclusion of law that Conklin did not commit slander of title. SeeTEX.
R. APP. P. 38.1(i); Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284–85
(Tex.1994) (appellate court may deem points of error waived due to inadequate briefing).
[2] Moreover, we note that the basis for Wise's slander of title claim is fundamentally flawed.
Wise asserts that Conklin's “refusal to release the lien created by [the] abstracted judgment ...
which result[ed] in a loss of a sale” of the Pittsford Property constitutes slander of title. However,
the filing of the Abstract of Judgment by Conklin did not place a lien on the Pittsford Property. 2
A properly recorded and indexed abstract of judgment creates a lien on a judgment debtor's real
property that is located in the county in which the abstract is recorded and indexed. TEX. PROP.
CODE ANN.. § 52.001 (Vernon Supp. 2014). Thus, once a judgment in favor of a judgment
creditor has been secured, the creditor may wish to record an abstract of judgment in order to
create a lien to attach to the judgment debtor's real property and to provide notice to subsequent
purchasers and encumbrancers of the existence of the judgment against the debtor and the lien. See
id.; Noble Mortg. & Invs., LLC v. D & M Vision Invs., LLC, 340 S.W.3d 65, 81 (Tex.App.–Houston
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[1st Dist.] 2011, no pet.); Olivares v. Bir die L. Nix Trust, 126 S.W.3d 242, 247 (Tex.App.–San
Antonio 2003, pet. denied).
Notably, however, the recording and indexing of a judgment creditor's abstract of judgment only
impacts real property owned by the judgment debtor. SeeTEX. PROP. CODE ANN.. § 52.001
(duly recorded abstract of judgment “constitutes a lien on the real property of the defendant located
in the county in which the abstract is recorded and indexed” (emphasis added)); First State Bank
v. Jones, 107 Tex. 623, 183 S.W. 874, 876 (1916); Gaona v. Gonzales, 997 S.W.2d 784, 786
(Tex.App.–Austin 1999, no pet.); Ferguson v. Kuehn, 246 S.W. 674, 675–76 (Tex.Civ.App.–
Austin 1922, no writ). In other words, the recording and indexing of an abstract of judgment
will not attach a lien to a property unless it is actually owned by the judgment debtor at the time
of the abstract's recording. SeeSmith v. Sumeer Homes, Inc., No. 05–11–01632–CV, 2013 WL
2467252, at *3–5 (Tex.App.–Dallas June 6, 2013, pet. denied) (mem. op.); Gamer v. Love, 41
S.W.2d 356, 359 (Tex.Civ.App.–Fort Worth 1931, writ dism'd w.o.j.); Marks v. Bell, 31 S.W.
699, 702 (Tex.Civ.App.–Dallas 1895, writ ref'd); see alsoWestman v. James B. Clow & Sons, Inc.,
38 F.2d 124, 125 (W.D.Tex.1930) (recording of abstract of judgment does not, by itself, create
lien); Pacific Fin. Corp. v. Donald, 286 S.W.2d 260, 263 (Tex.Civ.App.–Beaumont 1955, no writ)
(when judgment abstracted only after judgment debtor conveyed property to another individual,
judgment did not create lien on property). Thus, in order to determine whether an abstract of
judgment creates a lien on a particular piece of real property, it is imperative to determine who
owned the property at the time the abstract was recorded. SeeGaona, 997 S.W.2d at 786.
*5 Here, Conklin's divorce attorney, O'Fiel, testified that as a result of divorce proceedings
between Conklin and Fry, the previous owner of the Pittsford Property, Conklin secured a
judgment of approximately $375,000.00 against Fry on November 12, 2009. Six or seven months
after entry of that judgment, O'Fiel filed the Abstract of Judgment August 19, 2010.
There is no evidence, and Wise does not argue, that she was involved in the Conklin–Fry divorce
proceedings or the judgment obtained by Conklin in those proceedings was against anyone other
than Fry. Also, it is undisputed that the Abstract of Judgment was not recorded until after Fry
had sold the Pittsford Property and Wise had become its owner. Given these circumstances, the
Abstract of Judgment could not, as a matter of law, have created a lien on the Pittsford Property or
affected it in any way. SeeSmith, 2013 WL 2467252, at *3–5 (abstract of judgment cannot create
lien on property not actually owned by judgment debtor at time of recording); Pacific Fin., 286
S.W.2d at 263 (where judgment abstracted after judgment debtor conveyed property to another,
judgment did not create lien on property); Gamer, 41 S.W.2d at 359 (abstract of judgment cannot
relate back and create lien on property no longer owned by judgment debtor at time of filing);
First Nat'l Bank of McAllen v. Moore, 7 S.W.2d 145, 146 (Tex.Civ.App.–San Antonio 1928, writ
dism'd w.o.j.) (where judgment obtained in suit in which individual not party, recording of abstract
of judgment cannot affect individual's title to property); Ferguson, 246 S.W. at 675–76 (abstract
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of judgment does not create lien on property of individual not defendant in suit); Marks, 31 S.W.
at 702 (recording and indexing abstract of judgment does not create lien on property not owned
by judgment debtor at time of recording); see alsoWestman, 38 F.2d at 125 (recording of abstract
of judgment does not, by itself, create lien).
Further, because Conklin's Abstract of Judgment did not create a lien on the Pittsford Property,
Conklin could not have been required to release a lien that did not exist or the Abstract of Judgment,
which did not name Wise or pertain to the Pittsford Property. SeeLeslie v. W. Steel Co., 202 F.Supp.
27, 28 (S.D.Tex.1962) (applying Texas law and explaining, “[t]he holder of a judgment has an
inherent right to have h[er] judgment abstracted and recorded, and there is no duty of the holder of
such judgment to issue any release to parties owning land who are not mentioned in said abstract
judgment”). While it is unfortunate that the title company, utilized by Wise and her buyers for the
attempted sale of the Pittsford Property, did not understand that the Abstract of Judgment had no
effect on the Pittsford Property, blame cannot be placed on Conklin for this misunderstanding.
We overrule Wise's first issue.
Tortious Interference
[3] Wise next asserts that she “has satisfied each required element” of her claim for tortious
interference with a contract.
To establish a cause of action for tortious interference, a plaintiff must prove that (1) a contract
subject to interference exists; (2) the defendant committed a willful and intentional act of
interference with the contract; (3) the act proximately caused injury; and (4) the plaintiff sustained
actual damages or loss. ACS Invs., Inc. v. McLaughlin, 943 S.W.2d 426, 430 (Tex.1997). Because
it is dispositive, we focus on Conklin's alleged willful and intentional act of interference.
*6 Interference is tortious only if it is intentional. SeeSouthwestern Bell Tel. Co. v. John Carlo
Tex., Inc., 843 S.W.2d 470, 472 (Tex.1992). The intent required is the intent to interfere, not just
intent to do the particular act done. See id. To establish a willful and intentional act of interference,
there must be evidence that a party was more than a willing participant; it must knowingly induce
one of the contracting parties to breach its obligations. SeeBrowning–Ferris, Inc. v. Reyna, 865
S.W.2d 925, 927 (Tex.1993); Funes v. Villatoro, 352 S.W.3d 200, 213 (Tex.App.–Houston [14th
Dist.] 2011, pet. denied).
Here, Wise asserts that “the evidence is convincing that [she] made clear to Conklin and her
attorney that she was going to lose the sale of the Pittsford [Property], which was under contract,
if the property was not released from the abstract .... [and] Conklin acted maliciously towards her
by intentionally refusing to execute a release of lien on property to which [Conklin] had no right,
title or interest.”
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The evidence presented at trial, however, does not establish that Conklin acted with the requisite
intent in refusing to release the Abstract of Judgment. O'Fiel, Conklin's divorce attorney, testified
that he filed the Abstract of Judgment six or seven months after Conklin had obtained a judgment
against Fry. He subsequently received a call from “somebody” asking about the abstract and
whether he would release it. O'Fiel ultimately did not “take any actions to release the Abstract of
Judgment” and did not “intend[ ] to release [it].” As he explained:
After I realized that the abstract was filed after [Fry] sold [the Pittsford Property],
it didn't really make a whole lot of sense of why somebody would need a release
of an abstract that doesn't affect the property. It just didn't make any sense.... I
didn't know the details. All I know is I get calls from these people that I've never
met before that have never had any involvement with me stating that they want
something that I couldn't understand why they needed it, because it didn't affect
their property anymore.
Although O'Fiel stated that he had been notified by “somebody ... claim[ing] that a title company
would not issue [a] policy,” he noted that he thought the title company could make “an exception”
and he did not know “how far they [went] with the policy.” Further, “[a]fter [his] conversation
with the title company, [he did not] recall any other communications with them,” therefore, as far
as he knew, “they could have figured out a way” around the alleged title problem. We hold that
O'Fiel's testimony does not establish a willful and intentional act of interference with a contract
by Conklin.
Further, we note that Wise did not call Conklin as a witness, and Wise, herself, testified that she did
not know why Conklin did not release the Abstract of Judgment and could not “get into [Conklin's]
mind to know that.” This evidence does not show a “willful and intentional act of interference.”
SeeACS Invs., 943 S.W.2d at 430.
We conclude that the trial court correctly applied the law to the facts of the case. Accordingly,
we hold that the trial court did not err in concluding that Conklin did not tortiously interfere with
Wise's contract. SeeBMC Software, 83 S.W.3d at 794.
We overrule Wise's third issue.
Attorney's Fees
[4] In her second issue, Wise argues that the trial court erred in not awarding her attorney's fees
because she “filed this suit as a Declaratory Judgment action in order to remove the cloud on the
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title” and “is only asking for attorney's fees for the removal of the cloud, not for the action for
damages.” Wise asserts that her attorney “testified during the trial of this case that the sum of
$1,750 was a reasonable and necessary fee for removal of the cloud” and “[t]his testimony was
not refuted or questioned in any manner.”
*7 The Uniform Declaratory Judgment Act (“UDJA”) “entrusts attorney fee awards to the trial
court's sound discretion, subject to the requirements that any fees awarded be reasonable and
necessary, which are matters of fact, and to the additional requirements that fees be equitable and
just, which are matters of law.” Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex.1998); Indian Beach
Prop. Owners' Ass'n v. Linden, 222 S.W.3d 682, 706 (Tex.App.–Houston [1st Dist.] 2007, no pet.);
see alsoTEX. CIV. PRAC. & REM. CODE ANN.. § 37.009 (Vernon 2008) (“In any proceeding
under this chapter, the court may award costs and reasonable and necessary attorney's fees as are
equitable and just.”). Because the grant or denial of attorney's fees is within the sound discretion
of the trial court, its judgment will not be disturbed on appeal in the absence of a clear showing
that it abused its discretion. Oake v. Collin Cnty., 692 S.W.2d 454, 455 (Tex.1985); Indian Beach
Prop., 222 S.W.3d at 706.
A trial court does not abuse its discretion if some evidence reasonably supports its decision.
Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex.2002); Indian Beach Prop., 222 S.W.3d
at 706. A trial court abuses its discretion when it acts arbitrarily or unreasonably and without
reference to any guiding rules or principles. Bocquet, 972 S.W.2d at 21; Indian Beach, 222 S.W.3d
at 706. We presume that the trial court acted within the bounds of discretion unless the record
shows the contrary. Sanchez v. AmeriCredit Fin. Servs., Inc., 308 S.W.3d 521, 526 (Tex.App.–
Dallas 2010, no pet.); Beard v. Endeavor Natural Gas, L.P., No. 01–08–00180–CV, 2008 WL
5392026, at *8 (Tex.App.–Houston [1st Dist.] Dec. 19, 2008, pet. denied) (mem. op.). Here, the
trial court did not reveal the basis for its denial of attorney's fees; therefore, we may uphold its
ruling on any basis supported by the evidence. Beard, 2008 WL 5392026, at *8. It is Wise's burden
to bring a record showing that the trial court abused its discretion. SeeSimon v. York Crane &
Rigging Co., 739 S.W.2d 793, 795 (Tex.1987).
In her petition, Wise labeled her suit to remove “cloud” from the Pittsford Property's title as a
declaratory judgment action, and she sought a declaration that “the abstract of [judgment had] no
force and effect against” the property. Wise moved for partial summary judgment on this claim,
which the trial court granted. She did not move for summary judgment on her attorney's fees claim.
At trial, Wright, Wise's attorney, testified that his rate is $350.00 per hour and he incurred a total
of $1,750.00 in reasonable and necessary attorney's fees related to the removal of cloud from title.
Although Wise asserts that she is entitled to attorney's fees under the UDJA, “[a] declaratory
judgment action may not be used solely to obtain attorney's fees that are not otherwise authorized
by statute or to settle disputes already pending before a court.” Southwestern Guar. Trust Co. v.
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Hardy Road 13.4 Joint Venture, 981 S.W.2d 951, 956 (Tex.App.–Houston [1st Dist.] 1998, pet.
denied). Here, an examination of the pleadings reveals that Wise's declaratory-judgment action is,
in reality, a suit to remove a cloud from a title.
A suit to clear title or quiet title—also known as a suit to remove cloud from title ... exists
“to enable the holder of the feeblest equity to remove from his way to legal title any unlawful
hindrance having the appearance of better right.” ...The effect of a suit to quiet title is to declare
invalid or ineffective the defendant's claim to title.
Essex Crane Rental Corp. v. Carter,371 S.W.3d 366, 388 (Tex.App.–Houston [1st Dist.] 2012, pet.
denied) (internal citations omitted); see alsoVernon v. Perrien, 390 S.W.3d 47, 61–62 (Tex.App.–
El Paso 2012, pet. denied) (explaining suit to remove cloud from title). Wise states in her petition
that she “brings this action against the [d]efendant to remove the cloud, so that she may sell it in
the future.” And the trial court in its judgment determined “that the Abstract of Judgment ... has
no force and effect as to” the Pittsford Property. We conclude that Wise's suit is one to remove
a cloud from a title.
*8 “Attorney's fees are not available in a suit to quiet title or to remove cloud on title.”
Southwestern Guar. Trust, 981 S.W.2d at 956. And the UDJA cannot be used to “supplant
[such a suit] by allowing attorney's fees under these circumstances.”Id.; see alsoSani v. Powell,
153 S.W.3d 736, 746 (Tex.App.–Dallas 2005, pet. denied) (“In substance Powell's claim for
declaratory relief is a claim to quiet title.... We conclude ... that Powell was not entitled to an
award of attorney's fees under the [UDJA].”); DAS Inv. Corp. v. Nowak, No. 01–02–00140–CV,
2004 WL 396983, at *2–3 (Tex.App.–Houston [1st Dist.] Mar. 4, 2004, no pet.)(mem. op.) (where
counterclaim alleged liens were clouds on title and were unenforceable and prevented defendants
from having good and marketable title to property, defendants could not recover attorney's fees
under UDJA because claim was one to quiet title); Kennesaw Life & Acc. Ins. Co. v. Goss, 694
S.W.2d 115, 117–18 (Tex.App.–Houston [14th Dist.] 1985, writ ref'd n.r.e.) (UDJA could not be
used to recover attorney's fees for a suit brought to remove cloud from title). Accordingly, we hold
that the trial court did not abuse its discretion by failing to award Wise her attorney's fees.
We overrule Wise's second issue.
Conclusion
We affirm the judgment of the trial court.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 12
Wise v. Conklin, Not Reported in S.W.3d (2015)
2015 WL 1778612
All Citations
Not Reported in S.W.3d, 2015 WL 1778612
Footnotes
1 SeeTEX. PROP. CODE ANN.. § 52.003(a) (Vernon Supp. 2014) (abstract of judgment must contain names of plaintiff and defendant;
defendant's birthdate; last three numbers of defendant's driver's license; last three numbers of defendant's social security number;
number of suit in which judgment was rendered; defendant's address; date on which judgment was rendered; amount of judgment;
and rate of interest specified in judgment).
2 In fact, Wise's counsel admitted at trial that Conklin “didn't file a lien on the Pittsford Property.... She just filed the abstract.”
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 13
McGlown v. Ashford Park Homeowners Ass'n, Inc., Not Reported in S.W.3d (2009)
2009 WL 1635310
2009 WL 1635310
Only the Westlaw citation is currently available.
SEE TX R RAP RULE 47.2 FOR DESIGNATION AND SIGNING OF OPINIONS.
MEMORANDUM OPINION
Court of Appeals of Texas,
Houston (1st Dist.).
Willie McGLOWN, Jr., Appellant
v.
ASHFORD PARK HOMEOWNERS ASSOCIATION, INC., Appellee.
No. 01-08-00619-CV. | June 11, 2009.
West KeySummary
1 Judgment Banks, Corporations and Associations
A trial court erred in granting summary judgment for a homeowners' association in the
association's action against one of its property owners for the owner's failure to timely
pay assessments levied against him where contested issues remained for trial. As proof of
actual damages, the association provided an affidavit from its records custodian who stated
that “[t]he account reflecting the maintenance charges and costs of collection assessed
against [the owner's] property is attached hereto as Exhibit 1.” However, Exhibit 1 was
not attached to the record custodian's affidavit and was not included with the association's
motion for summary judgment. In addition, none of the requests for admission asked the
owner to admit the amount of actual damages sought by the association.
Cases that cite this headnote
On Appeal from County Civil Court at Law No. 2, Harris County, Texas, Trial Court Cause No.
872089.
Attorneys and Law Firms
Althea M. Bailey, for Willie McGlown, Jr.
Christopher A. Kesler, Walter Edward Spears, for Ashford Park Homeowners Association, Inc.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
McGlown v. Ashford Park Homeowners Ass'n, Inc., Not Reported in S.W.3d (2009)
2009 WL 1635310
Panel consists of Justices KEYES, HANKS, and BLAND.
MEMORANDUM OPINION
JANE BLAND, Justice.
*1 Ashford Park Homeowners' Association, Inc. (the Association) sued one of its property
owners, Willie McGlown, Jr., for his failure to timely pay assessments levied against him. The
trial court granted the Association's motion for summary judgment, and awarded actual damages
and attorney's fees. McGlown, proceeding pro se, appeals, contending that the trial court erred in
granting summary judgment because contested issues remain for trial. We agree and reverse.
Background
The Association Declaration of Covenants, Conditions, and Restrictions (declaration) of Ashford
Park requires each lot owner to pay assessments imposed by the board of directors of the
Association. The declaration, as well as Texas statute, allows the Association to charge a lot owner
interest, late charges, costs, and reasonable attorney's fees if that owner does not timely pay an
assessment. The declaration also reserves to the Association a continuing lien against the lot to
secure any outstanding assessments. According to the Association's pleadings, McGlown failed
to pay his homeowners' assessment, amounting to more than $2,144.75, including interest, costs,
and attorney's fees.
The Association sent a request for admissions of fact to McGlown by certified and first class mail
on or about October 13, 2006. The certified mail was returned unclaimed; the first-class mail was
not returned. The record reveals that, while McGlown still had legal representation, his counsel
sought to undo the deemed admissions through a motion to strike, but the record does not contain
any ruling on that motion.
In December 2006, the Association moved for summary judgment based on the deemed
admissions, an affidavit from the Association's records custodian, and an attorney's fees affidavit
executed by its own attorney. In his response, McGlown challenged the validity of the deemed
admissions, provided a copy of correspondence showing that he had sent a $457.00 check to the
Association representing the amount of the assessment plus late fees before receiving a demand
letter for $3,646.90, and challenged the reasonableness of the attorney's fees sought.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2
McGlown v. Ashford Park Homeowners Ass'n, Inc., Not Reported in S.W.3d (2009)
2009 WL 1635310
On April 8, 2008, the trial court granted summary judgment in favor of the Association, and
awarded $1,372.50 in damages and $5,000 in attorney's fees, as well as fees for defense of the
judgment on appeal and pre- and post-judgment interest. On May 8, 2008, McGlown filed his
“Objections to Judgment,” in which he contended that the trial court erred in granting the attorney's
fees award and that fact issues existed concerning whether the Association had agreed to accept
the tendered payment, and requested that the judgment be reversed and that “[he] be given [his]
day in court.”
Discussion
Standard of Review
McGlown has asserted a general complaint that the trial court erred in granting summary judgment.
See Malooly Bros. Inc. v. Napier, 461 S.W.2d 119, 121 (Tex.1970). We review a trial court's
summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005);
Provident Life Accid. Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex.2003). In a traditional motion
for summary judgment, the movant has the burden to show that no genuine issue of material fact
exists and that the trial court must grant a judgment as a matter of law. TEX.R. CIV. P. 166a(c);
KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex.1999). We
review the evidence in a light favorable to the nonmovant and indulge every reasonable inference
in the nonmovant's favor. Dorsett, 164 S.W.3d at 661; Knott, 128 S.W.3d at 215;Sci. Spectrum,
Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997).
*2 Summary judgments must stand on their own merits. M.D. Anderson Hosp. & Tumor Inst. v.
Willrich, 28 S.W.3d 22, 23 (Tex.2000). The nonmovant has no burden to respond to a traditional
summary judgment motion unless the movant conclusively establishes its cause of action. See
id.;Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222-23 (Tex.1999); City of Houston v. Clear
Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979); see also Grace v. Titanium Electrode Prods.,
Inc., 227 S.W.3d 293, 297 (Tex.App.-Houston [1st Dist.] 2007, no pet.).
Did the Association meet its burden of proof?
The Association's claim against McGlown is essentially one for breach of the declaration. To prove
a breach of contract cause of action, the plaintiff bears the burden to show (1) the existence of a
valid contract; (2) performance or tendered performance by the plaintiff; (3) breach of the contract
by the defendant; and (4) damages sustained as a result of the breach. Valero Mkt'g & Supply Co. v.
Kalama Int'l, 51 S.W.3d 345, 351 (Tex.App.-Houston [1st Dist.] 2001, no pet.). McGlown admits
that he failed to timely pay the 2006 assessment owed to the Association under the declaration.
We examine, then, whether the Association conclusively proved actual damages and attorney's
fees as required to satisfy its summary judgment burden.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3
McGlown v. Ashford Park Homeowners Ass'n, Inc., Not Reported in S.W.3d (2009)
2009 WL 1635310
Proof of actual damages
As proof of actual damages, the Association provided with its summary judgment motion an
affidavit from its records custodian, who, after making recitals to satisfy the evidentiary rule for
business records, declared that “[t]he account reflecting the maintenance charges and costs of
collection assessed against [McGlown's] property is attached hereto as Exhibit ‘1.’ “ Exhibit 1,
however, is not attached to the record custodian's affidavit, and was not included with either the
original or amended motion for summary judgment. In addition, we have reviewed the requests
for admission and none ask McGlown to admit the amount of actual damages sought by the
Association. Aside from the reference to the omitted Exhibit 1 accounting, no evidence supports
the amount of actual damages awarded in the summary judgment. Resolving all doubts against the
Association, therefore, we hold that it failed to meet its summary judgment burden on damages
because it did not submit competent proof of them. SeeTEX.R. CIV. P. 166a(c).
Proof of attorney's fees
Next, we consider whether the Association's evidence supports the attorney's fees award. As a
general rule, the party seeking to recover attorney's fees carries the burden of proof. Stewart
Title Guar. Co. v. Sterling, 822 S.W.2d 1, 10 (Tex.1991). Chapter 38 of the Texas Civil Practice
and Remedies Code, which the Association invoked here, affords the party seeking fees the
presumption that the usual and customary fees for the eligible claim are reasonable. TEX. CIV.
PRAC. & REM.CODE ANN. §§ 38.001, 38.003 (Vernon 2008). This presumption, however,
is subject to rebuttal, and McGlown has challenged the reasonableness of the Association's fee
demand. SeeTEX. CIV. PRAC. & REM.CODE ANN . § 38.003. In reviewing the reasonableness
of an attorney's fees award, the court considers:
*3 (1) the time and labor required, the novelty and difficulty of the questions involved, and the
skill required to perform the legal service properly;
(2) the likelihood that the acceptance of the particular employment will preclude other
employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
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McGlown v. Ashford Park Homeowners Ass'n, Inc., Not Reported in S.W.3d (2009)
2009 WL 1635310
(8) whether the fee is fixed or contingent on results obtained or uncertainty of collection before
the legal services have been rendered.
Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex.1997) (citing TEX.
DISCIPLINARY R. PROF'L CONDUCT 1.04). The amount of attorney's fees sought also must
bear some reasonable relationship to the amount in controversy. USAA County Mut. Ins. Co.
v. Cook, 241 S.W.3d 93, 103 (Tex.App.-Houston [1st Dist.] 2007, no pet.). Although proof of
the number of hours and corresponding hourly rate are not necessarily required, the trial court
generally relies on evidence of hours expended and the attorney's stated hourly rate to determine
whether the requested fee is reasonable for the nature and extent of the services performed. McGee
v. Deere & Co., No. 03-04-00222-CV, 2005 WL 670505, *4 (Tex.App.-Austin Mar. 24, 2005,
pet. denied) (mem.op.) (citing Collins v. Guinn, 102 S.W.3d 825, 836 (Tex.App.-Texarkana 2003,
pet. denied)).
In this case, the Association's own attorney executed the attorney's fees affidavit in support of
its summary judgment motion. Uncontroverted testimony of an interested witness will establish
attorney's fees sought are reasonable and necessary as a matter of law if (1) the testimony could
readily be contradicted if untrue; (2) the testimony is clear, direct, and positive; and (3) there are
no circumstances tending to discredit or impeach the testimony.Rosenblatt v. Freedom Life Ins.
Co. of Am., 240 S.W.3d 315, 321 (Tex.App.-Houston [1st Dist.] 2007, no pet.)(citing Ragsdale v.
Progressive Voters League, 801 S.W.2d 880, 882 (Tex.1990)).
The Association's attorney describes his professional experience and itemizes activities he
identifies as “the services that are necessary to handle a collection matter which is similar in nature
to the above-entitled and numbered cause.”The attorney avers that “the total amount of attorney's
fees and expenses incurred by Ashford Park Homeowners Association, Inc. in the prosecution of
this lawsuit is $7,620.00,” and, after reciting the reasonableness factors, opines that such sum “is
a reasonable attorney's fee and is in accordance with the attorney's fees normally and customarily
charged in litigation of the type now before the Court.”
*4 This affidavit does not satisfy the Association's summary judgment burden. First, the affidavit
does not identify the services actually performed on behalf of the Association in this lawsuit,
itemize the hours expended, or identify the attorney's hourly rate. The absence of these objective
criteria prevents the affidavit from being readily controvertible.
Second, controverting evidence before the trial court bars summary judgment on the Association's
attorney's fees claim. In his response, McGlown challenged the reasonableness of the Association's
fee request with evidence that (1) he tendered a $457.20 check for payment of his dues, plus late
charges, before he was served with any documents from an attorney, including the Association's
demand letter, (2) the Association delayed in opening the mail containing the tendered check for
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McGlown v. Ashford Park Homeowners Ass'n, Inc., Not Reported in S.W.3d (2009)
2009 WL 1635310
several days, and (3) after an additional delay, the Association returned the check and demanded
the sum of $3,646.90.
The trial court's judgment awards only $5,000.00 in fees, less than the amount sought by the
Association. It reflects that the trial court was duly concerned about the issue, but the court was
not authorized to make a fact finding at this stage. See Guity v. C.C.I. Enter. Co., 54 S.W.3d 526,
528 (Tex.App.-Houston [1st Dist.] 2001, no pet.). (holding that, when summary judgment record
contains evidence contesting reasonableness of the attorney's fees requested, trial court may not
resolve issue on summary judgment); see also Rosenblatt, 240 S.W.3d at 321. Accordingly, we
reverse the trial court's summary judgment on the attorney's fee award.
Conclusion
The Association failed to meet its summary judgment burden to conclusively prove the amount of
actual damages and its reasonable and necessary attorney's fees. We therefore reverse the judgment
and remand the cause for trial.
All Citations
Not Reported in S.W.3d, 2009 WL 1635310
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 6