Caldwell v. Callender Lake Property Owners Improvement Ass'n, No. 06-94-00038-CV

CourtCourt of Appeals of Texas
Writing for the CourtBefore CORNELIUS; GRANT
Citation888 S.W.2d 903
Docket NumberNo. 06-94-00038-CV
Decision Date01 November 1994
PartiesJames C. CALDWELL and Warren A. Burnett, Appellants, v. CALLENDER LAKE PROPERTY OWNERS IMPROVEMENT ASSOCIATION, Appellee.

Page 903

888 S.W.2d 903
James C. CALDWELL and Warren A. Burnett, Appellants,
v.
CALLENDER LAKE PROPERTY OWNERS IMPROVEMENT ASSOCIATION, Appellee.
No. 06-94-00038-CV.
Court of Appeals of Texas,
Texarkana.
Nov. 1, 1994.
Rehearing Overruled Sept. 27, 1994.
Second Motion for Rehearing Overruled
Nov. 22, 1994.

Page 905

Harold A. Ellard, Dallas, for appellants.

Carter W. Tarrance, Athens, for appellee.

Before CORNELIUS, C.J., and BLEIL and GRANT, JJ.

OPINION

GRANT, Justice.

James Caldwell and Warren Burnett appeal from a summary judgment. They raise eight points of error in which they contend that the trial court erred in rendering summary judgment because (1) the trial court did not have jurisdiction over all persons who have or claim any interest that would be affected by the declaratory judgment; (2) there are issues of material fact to be decided; (3) the trial court erred as a matter of law in striking their response to the motion for summary judgment; (4) the evidence is insufficient to support the award of attorney's fees; (5) the trial court erred in not preparing and filing findings of facts and conclusions of law as requested; and (6) the trial court erred in determining that Caldwell had knowledge of the final judgment within twenty days after it was signed.

Callender Lake is a residential subdivision. A maintenance fund agreement requires the landowners to each pay the Callender Lake Property Owners Improvement Association an annual maintenance fee of $10 for a period of twenty-five years beginning January 1, 1967, and for automatic extensions of ten years thereafter. Pursuant to a vote of the lot owners, the Association increased the annual fees in 1986 and again in 1991. The last vote increased the fees to $200 for lots with houses and $40 for lots without houses.

Caldwell and Burnett, landowners, filed a suit in which they contended that the election under which the fees were increased was not held in accordance with the controlling language of the deed restrictions that set up the maintenance fund agreement. The Association counterclaimed, requesting a declaration that the maintenance fund agreement controls over the restrictions in setting out the terms and requirements of an election to increase the maintenance fee.

Burnett contended in his petition and arguments before the trial court that he personally possessed a petition containing signatures of a large number of residents of the subdivision who were of like mind and wished to contest the rate increase. He and Caldwell were directed to produce this petition in discovery. In findings of fact following a sanctions hearing, the trial court stated that Burnett had refused to produce the document and that he had personally burned the

Page 906

document containing the signatures in his fireplace. The court also found that Caldwell refused to produce the petition because he had promised not to reveal the names on the petition. The trial court was mightily perturbed.

After the hearing, the trial court entered findings of fact and conclusions of law that stated, among other things, that counsel had no responsibility for the errant acts of his client and sanctioned both Burnett and Caldwell by dismissing their action against the Association. No complaint is made of that sanction.

Thereafter, the Association continued to prosecute its counterclaim for declaratory judgment against Caldwell and Burnett. In a document entitled partial summary judgment, the trial court struck Caldwell and Burnett's response to the Association's motion for summary judgment and granted the Association's motion for summary judgment finding that, among other things, the relevant instruments only require a majority affirmative vote of the lot owners voting to increase the maintenance charge and that two classes of maintenance charges could be created. The summary judgment further stated that trial would be held on the issue of attorney's fees on September 13, 1993. An additional order was signed on that date setting attorney's fees at $5,000 and ordering Caldwell and Burnett to pay that amount to the Association.

TIMELINESS OF THE APPEAL

We first address the Association's contention that Caldwell's appeal was not timely perfected. Affidavits by the district clerk, affidavits of the parties, and a hearing held before the trial court all show that notice of the judgment was not sent out by the district clerk as required by TEX.R.CIV.P. 306a. The trial court made findings of fact pursuant to TEX.R.CIV.P. 306a in which it found that Caldwell personally had actual notice of the judgment as of October 2, 1993 (within twenty days of the judgment), but that neither Burnett nor his counsel received notice of the judgment until October 20.

Caldwell challenges the sufficiency of the evidence to support the trial court's finding of the date that he received notice of the judgment. In reviewing the factual sufficiency of the evidence, we examine all of the evidence and will set aside the trial court's finding only if it is so against the great weight and preponderance of the evidence that the finding is manifestly unjust. Welborn Mortgage Corp. v. Knowles, 851 S.W.2d 328 (Tex.App.-Dallas 1993, writ denied). In reviewing the legal sufficiency of the evidence, we first examine the record for evidence that supports the finding while ignoring all evidence to the contrary. If there is no evidence to support the finding, we then examine the entire record to determine if the contrary proposition is established as a matter of law. Holley v. Watts, 629 S.W.2d 694 (Tex.1982); Hot Shot Messenger Service v. State, 798 S.W.2d 413, 415 (Tex.App.-Austin 1990, writ denied).

The trial court held an evidentiary hearing in regard to this motion, although a hearing is not explicitly provided by Rule 306a. Caldwell testified at this hearing that on October 2 he was present at a meeting of the Association and heard an individual claim that a judgment had been rendered in the case in favor of the Association. He further testified that he thought she was lying. The law charges one who has knowledge of facts that would cause a prudent man to inquire further to do so. Knowles, 851 S.W.2d at 331. Sitting as the fact finder, the trial court clearly believed Caldwell's statement, as well as the supporting testimony to the effect that the board members of the Association had in fact read the judgment aloud at the October 2nd meeting and that Caldwell was present at the meeting. This constitutes some evidence and sufficient evidence to support the trial court's findings on these matters.

In applying the facts found by the trial court and determining the appellate timetable, an unusual interplay between TEX.R.CIV.P. 306a and TEX.R.APP.P. 41 exists in the present case. The trial court found that Caldwell had received actual notice of the judgment within twenty days of its rendition by the trial court. Accordingly, Rule 306a(4)

Page 907

does not operate to create a new date for starting the appellate timetable for Caldwell.

Using the date that the judgment was actually signed as the beginning date, Caldwell's motion for new trial and subsequent filing of an appeal were both untimely. However, because the timetable was restarted for appellant Burnett, Burnett's motion for new trial was timely, as was his bond. Rule 41(a) requires that Burnett's timely motion for new trial inure to the benefit of Caldwell, thus Caldwell had ninety days from the date of judgment, September 13, 1993, to file his appeal bond. However, even if we treat the timetable as extended, use the date the final judgment was actually signed, and allow Caldwell the ninety days provided by Rule 41 in which to file his bond, Caldwell's bond was not timely filed. It was actually filed 120 days after the judgment applicable to Caldwell was signed. Although we are aware of no case in which a different date of judgment has been applied to different appellants, that appears to be the proper result.

Caldwell's appeal is dismissed for want of jurisdiction because his bond was untimely filed. This does not affect Burnett's appeal, which we now address on the merits.

NECESSARY PARTIES

Burnett first contends that the trial court could not grant any judgment in this case because...

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22 practice notes
  • Cathey v. Meyer, No. 10-99-326-CV.
    • United States
    • Court of Appeals of Texas
    • August 4, 2003
    ...validity to the prior act and to approve a prior act is to relinquish a known right. Caldwell v. Callender Lake Prop. Owners Imp. Ass'n, 888 S.W.2d 903, 910 (Tex.App.-Texarkana 1994, no writ) (quoting Jordan v. City of Beaumont, 337 S.W.2d 115, 118 (Tex.Civ.App.-Beaumont 1960, writ ref'd Th......
  • BPX Operating Co. v. Strickhausen, 19-0567
    • United States
    • Supreme Court of Texas
    • June 11, 2021
    ...Ratification and waiver have been called "opposite sides of the same coin." Caldwell v. Callender Lake Prop. Owners Improvement Ass'n , 888 S.W.2d 903, 910 (Tex. App.—Texarkana 1994, writ denied). Both can arise by implication from a party's actions, and both involve ascribing unspoken inte......
  • Riddick v Quail Harbor Condo. Ass'n
    • United States
    • Court of Appeals of Texas
    • October 28, 1999
    ...& REM. CODE ANN. 37.006(a) (Vernon 1997 & Supp. 1999). Appellant cites Caldwell v. Callender Lake Property Owners Improvement Ass'n, 888 S.W.2d 903 (Tex.App.-Texarkana 1994, writ denied) as authority for the proposition that he was not required to join the other co-owners in his declaratory......
  • Tenneco Inc. v. Enterprise Products Co., No. 95-0978
    • United States
    • Supreme Court of Texas
    • August 16, 1996
    ...enforcement of Section 12.2. Waiver is ordinarily a question of fact. See Caldwell v. Callender Lake Property Owners Improvement Ass'n, 888 S.W.2d 903, 910 (Tex.App.--Texarkana 1994, writ denied); Rowe, 619 S.W.2d at 213. Where the facts and circumstances are admitted or clearly established......
  • Request a trial to view additional results
22 cases
  • Cathey v. Meyer, No. 10-99-326-CV.
    • United States
    • Court of Appeals of Texas
    • August 4, 2003
    ...validity to the prior act and to approve a prior act is to relinquish a known right. Caldwell v. Callender Lake Prop. Owners Imp. Ass'n, 888 S.W.2d 903, 910 (Tex.App.-Texarkana 1994, no writ) (quoting Jordan v. City of Beaumont, 337 S.W.2d 115, 118 (Tex.Civ.App.-Beaumont 1960, writ ref'd Th......
  • BPX Operating Co. v. Strickhausen, 19-0567
    • United States
    • Supreme Court of Texas
    • June 11, 2021
    ...Ratification and waiver have been called "opposite sides of the same coin." Caldwell v. Callender Lake Prop. Owners Improvement Ass'n , 888 S.W.2d 903, 910 (Tex. App.—Texarkana 1994, writ denied). Both can arise by implication from a party's actions, and both involve ascribing unspoken inte......
  • Riddick v Quail Harbor Condo. Ass'n
    • United States
    • Court of Appeals of Texas
    • October 28, 1999
    ...& REM. CODE ANN. 37.006(a) (Vernon 1997 & Supp. 1999). Appellant cites Caldwell v. Callender Lake Property Owners Improvement Ass'n, 888 S.W.2d 903 (Tex.App.-Texarkana 1994, writ denied) as authority for the proposition that he was not required to join the other co-owners in his declaratory......
  • Tenneco Inc. v. Enterprise Products Co., No. 95-0978
    • United States
    • Supreme Court of Texas
    • August 16, 1996
    ...enforcement of Section 12.2. Waiver is ordinarily a question of fact. See Caldwell v. Callender Lake Property Owners Improvement Ass'n, 888 S.W.2d 903, 910 (Tex.App.--Texarkana 1994, writ denied); Rowe, 619 S.W.2d at 213. Where the facts and circumstances are admitted or clearly established......
  • Request a trial to view additional results

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