Siegler v. Centeq Realty, Inc.

Appellant's first amended petition named as defendants Warwick Towers, Smith Protective Services, Warwick Tower Counsel (sic) of Co-Owners and Centeq Realty. Warwick Towers was a high-rise condominium project located at 1111 Hermann Drive in Houston; Smith Protective Services was a *Page 310 security company providing security to Warwick Towers; Warwick Council1 was a non-profit corporation chartered as a "homeowners association" under the Internal Revenue Code to care for Warwick Towers Association property, and Centeq Realty was alleged to be "an agent and/or representative of Warwick Towers and/or Warwick Counsel (sic) relative to the daily operation of the premises located at 1111 Hermann Drive." Appellant alleged that she was assaulted and kidnapped by an unknown assailant "while on premises owned, controlled, and/or managed by Defendant Warwick Towers, Warwick Counsel (sic), and Centeq Realty located at 1111 Hermann Drive." Appellant alleged that "Defendants" had the duty of reasonable care to protect invitees such as plaintiff from criminal assaults by third persons; that defendants failed to provide adequate security for the premises; they were therefore negligent and their negligence proximately caused plaintiff's injuries.

Centeq answered and subsequently filed motion for summary judgment and submitted as its summary judgment proof the affidavit of Carla VanOver, President of Centeq Realty, at the time of the occurrence in question. The pertinent portions of her affidavit were:

2. During the time I was President of Centeq Real Estate Services, Inc., Centeq Realty, Inc. was not an agent or representative of Warwick Towers, Inc. No. 2 (hereinafter "Warwick Towers"). In fact Centeq Realty, Inc. never had any relationship whatsoever with any entity so named.

3. Centeq Realty, Inc. never had a contractual relationship with Warwick Towers Counsel (sic) of Co-Owners ("Warwick Counsel" (sic)) nor did it ever undertake to represent Warwick Counsel (sic) as its agent.

4. At the time Ms. Siegler was attacked I served on the Warwick Counsel (sic) with at least four (4) other members. I was at that time, and still am, a resident of Warwick Towers. As a voting member of Warwick Counsel (sic) my obligations ran to the homeowners — not to Centeq Realty, Inc.

5. During the period in question, Centeq Realty, Inc. did not own, control, or manage the premises known as 1111 Hermann Drive, Houston, Harris County, Texas, nor did Centeq Realty, Inc. have any sort of relationship with Smith Protective Services.

6. Centeq Realty, Inc. was not Karelyn Siegler's landlord, nor was Centeq Realty, Inc. her landlord's manager or leasing agent.

Plaintiff/appellant responded but her only summary judgment proof material to the denial by Centeq of a duty (because of no ownership, control, management, or agency relationship) was the affidavit of Donna Green, who was at the time in question the General Manager of Warwick Council of Co-Owners. Donna Green's affidavit, in material part, stated:

2. Centeq Realty, Inc., (hereinafter Centeq), is and was, at all times relevant hereto, the agent/representative of the majority homeowner of Warwick Towers, Inc. No. 2, (hereinafter Warwick Towers), United Savings, (hereinafter US).

3. As agent/representative of US, Centeq controlled, by proxy vote, the majority of total homeowner votes outstanding for the Warwick Towers homeowner's association, Warwick Towers Counsel (sic) of Co-Owners, (hereinafter Warwick Counsel (sic)). This is because the homeowners votes were weighted by square footage owned, and US was the majority homeowner. Centeq, via Carla VanOver, had far more than one vote, she had the controlling votes in all homeowner meetings via US proxies.

4. Centeq, was able to control all homeowner association votes, which included nominating and voting in the Board Members for Warwick Counsel (sic). Also included in this power, was the ability to change the bylaws or other

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governing documents, approve or deny large expenditures, and changes in maintenance fees.

5. As a direct result of the proxy votes held by Centeq, Centeq was able to select a majority of the Board that voted in the best interest of Centeq and US, to the detriment of Warwick Towers and inconsistent with the goals of Warwick Counsel (sic). This control contributed to Warwick Counsel's (sic) refusal to make the financial expenditures necessary in order to provide adequate security in the very parking garage at issue.

6. There was, however, an agreement between Warwick Counsel (sic) and US, that US would have a voting representative, i.e., an agent/representative of Centeq on the Board of Warwick Counsel (sic), as long as US held any interest in Warwick Towers. This agent/representative was in fact, Carla VanOver, and it was in the Board Member capacity that she exercised one vote. However, even that is misleading because of her majority vote at homeowners' meetings which gave her control to nominate and elect the Board Members who would vote in line with her.

7. Through the voting proxies granted by US, Centeq established a relationship with Warwick Towers and Warwick Counsel (sic) based on control and power, not contract. At all times relevant hereto, Centeq exercised control of all decisions made by Warwick Towers and Warwick Counsel (sic), and the Warwick Counsel (sic) Board.

8. At all times relevant hereto, Centeq held itself out to be an agent/representative of Warwick Towers through advertisements, phone listings of Warwick Towers with Centeq numbers, and maintaining a sales, leasing and management office on the Warwick Towers premises, which was staffed full-time by Centeq employees. The advertisery documents attached hereto are true and correct copies of advertisements to the public by Centeq of Warwick Towers. These advertisements were maintained in the regular course of business and it was the business of Centeq to maintain files of those advertisements.

9. Centeq, acting on behalf of majority homeowner US, managed, leased, and attempted to sell the majority of units at Warwick Towers. It also managed all units owned by US, which, as previously stated, was percentage majority at Warwick Towers.

Also attached to appellant's response to the summary judgment were various newspaper advertisements, referenced in Green's affidavit, reflecting that Warwick Towers condominiums were being marketed by Centeq Realty.

It is elementary that allegations of plaintiff's petition cannot constitute summary judgment proof. Accepting, as we must, the fact that we must view all the summary judgment proof in favor of the non-movant and that we must resolve all doubts in favor of the non-movant, I cannot discern how appellant's/plaintiff's summary judgment proof was sufficient to raise a fact issue sufficient to defeat appellee's/defendant's summary judgment.

Succinctly stated, plaintiff/appellant alleged that Centeq Realty was liable because:

1. it was an agent or representative of Warwick Towers and the Warwick Council of Co-Owners "in the daily operation of" [the condominium regime], and

2. Centeq "owned, controlled and/or managed" the premises on which she was injured.

Centeq's summary judgment proof showed that it (Centeq)

1. was not an agent or representative of Warwick Towers,

2. had no contractual relationship with Warwick Council of Co-Owners nor did it undertake to represent the council as its agent,

3. did not own, control, or manage the premises in question, and

4. it was not plaintiff's landlord, her landlord's manager or leasing agent.

*Page 312 In the absence of summary judgment proof sufficient to raise a fact issue on one or more of these issues, defendant/appellee was entitled to summary judgment.

Plaintiff/appellant attempted to raise such fact issue by proof that:

1. United Savings was the majority homeowner of the Warwick Towers Condominium regime,

2. Centeq was the marketing agent for United Savings in the sale of individual Warwick Towers Condominium units,

3. because United Savings was the majority homeowner in Warwick Towers, it controlled the homeowner association's (the Council's) votes,

4. Because Centeq was United Savings agent/representative, Centeq by proxy, controlled the votes of the council of co-owners,

5. Since Centeq controlled the votes of the council, "this contributed to Warwick Counsel's (sic) refusal to make the financial expenditures necessary in order to provide adequate security," and

6. Centeq, as an agent of the majority homeowner (United Savings) "managed, leased and attempted to sell the majority of the units at Warwick Towers."

While appellant's summary judgment proof might have been sufficient to raise a fact issue over whether United Savings through Centeq Realty through Carla VanOver constituted a majority vote of the Warwick Council of Co-Owners, this is, in my opinion, totally immaterial. While under the allegations of plaintiff's/appellant's petition the Warwick Towers Council of Co-Owners could be liable, there were no allegations which could render Centeq Realty liable. The pleadings, of course, outline the issues to be addressed in the motion for, and response to, summary judgment.

I believe the trial judge properly found that plaintiff's/appellant's summary judgment proof did not raise a fact issue. The judgment should be affirmed.

1 Appellant attached the Articles of Incorporation for Warwick Council of Co-owners to her response to the motion for summary judgment.