Ellis v. Renaissance On Turtle Creek Condo. Ass'n, Inc.

• Decision Date: 17 April 2014
• Docket Number: No. 05–12–01435–CV.,05–12–01435–CV.
• Citation: 426 S.W.3d 843
• Parties: Thomas J. ELLIS, Appellant v. The RENAISSANCE ON TURTLE CREEK CONDOMINIUM ASSOCIATION, INC. and Premier Communities Management Company, Inc., Appellees.
• Court: Texas Court of Appeals

426 S.W.3d 843

Thomas J. ELLIS, Appellant

v.The RENAISSANCE ON TURTLE CREEK CONDOMINIUM ASSOCIATION, INC. and Premier Communities Management Company, Inc., Appellees.

No. 05–12–01435–CV.

Court of Appeals of Texas, Dallas.

March 18, 2014.

Rehearing Overruled April 17, 2014.

Thomas J. Ellis, Dallas, pro se.

Michael A. Yanof, Thompson, Coe, Cousins, & Irons, L.L.P., Robert Pathroff, Barry Moscowitz, Dallas, for Appellees.

Before Justices FITZGERALD, LANG, and FILLMORE.

OPINION

Opinion by Justice LANG.

Appellant Thomas J. Ellis appeals the trial court's summary judgment against him on a counterclaim by appellee The Renaissance on Turtle Creek Condominium Association, Inc. (the “Association”) pertaining to foreclosure of a lien on a condominium unit. In three issues on appeal, Ellis contends the Association was not entitled to (1) summary judgment on its counterclaim for unpaid assessments and fines in the amount of $13,405.64; (2) attorney's fees of $20,000 for services pertaining to the counterclaim, $5,500 respecting the foreclosure, and $30,000 for each unsuccessful appeal; and (3) foreclosure respecting the property described in the judgment. For the reasons below, we decide Ellis's three issues against him. The trial court's judgment is affirmed.

I. FACTUAL AND PROCEDURAL BACKGROUND

This lawsuit was filed by Ellis in August 2010.¹ In his live pleading at the time of the judgment complained of, Ellis (1) asserted he owned “a condominium unit more specifically described as 3225 Turtle Creek Boulevard, Unit 1208, Dallas, Texas, 75219” and (2) contended appellees had filed fraudulent liens pertaining to that property.

Both appellees filed general denial answers. Additionally, on August 30, 2011, the Association filed a counterclaim in which it sought (1) recovery of “delinquent assessments” owed by Ellis, (2) foreclosure of its “continuing lien against Ellis' unit 1208,” and (3) “attorney's fees and costs.”

In December 2011, (1) appellees filed a no-evidence motion for summary judgment on Ellis's claims and (2) the Association filed a traditional motion for summary judgment on its counterclaim. In the “Introduction” and “Statement of Relevant Facts” in its traditional motion for summary judgment, the Association asserted in part

The Plaintiff is the owner of Unit 1208, a condominium unit in The Renaissance on Turtle Creek Condominium (the “Condominium”) located at 3225 Turtle Creek Boulevard, Dallas, Texas 75219.... The Plaintiff is delinquent in paying regular monthly dues assessments and other charges owed to the Association under its condominium declaration and bylaws.

....

The bylaws of the Association ... authorize and direct its board of directors to perform certain duties necessary for the administration of the Association, including but not limited to, establishing the amount of monthly assessments and collecting same from owners; collecting delinquent assessments against any owner and the owner's unit; abating any nuisance; enforcing the terms of the Condominium Declaration; and enforcing the compliance with the rules and regulations adopted by the Association through any means deemed necessary or appropriate, including the use of penalties levied for violations....

... On May 27, 2009, Plaintiff violated the Rules and Regulations by playing loud music in his unit at approximately 8:00 a.m. ... In the course of a running dispute with his upstairs neighbor, Plaintiff embarked on a campaign of repeated and deliberate violations of the Association's Rules and Regulations by loudly banging on his ceiling. The first “banging” violation, which occurred on or about August 5, 2009, constituted a second violation of the Rules and Regulations, resulting in a fine of $250 in accordance with the Association's fine schedule. Despite receiving a written notice to refrain from future violations, Plaintiff committed a third violation on or about August 31, 2009 by again loudly banging on his ceiling. In accordance with the Association's fine schedule, Plaintiff was fined $500 and was issued another written notice to stop the egregious conduct. During the ensuing ten (10) months, from September 7, 2009 to July 28, 2010, Plaintiff was cited for nine (9) additional violations for loudly banging on his ceiling. In accordance with the Association's fine schedule, Plaintiff was fined $500 for each of these flagrant violations of the Rules and Regulations.... Plaintiff violated the Rules and Regulations again on or about April 5, 2010 when he raised his voice in a common area lobby, and used an abusive tone and vulgar language toward the Association's staff. Pursuant to the terms of the fine schedule, Plaintiff was fined $250 for this violation and was duly notified of same.

... The Plaintiff refused to pay the above-described fines, totaling $5,500.00.

(citations to record omitted).² The Association stated that starting in August 2009, all payments received by Ellis were applied first toward the payment of outstanding fines and other charges in accordance with the Association's payment policy. Thus, although Ellis made monthly payments approximately equal to the monthly dues assessments owed by all unit owners, he became delinquent as to those monthly dues assessments. The Association asserted that as of the end of October 2010, “the Plaintiff's monthly dues assessments account was delinquent in the amount of $6,865.00.” Further, the Association contended (1) Ellis “failed and refused to make any payments to the Association” from December 2010 through the date of the motion and currently owed a total of $13,405.64 plus interest; (2) it “has a continuing assessment lien against the Plaintiff's unit 1208” on which it was entitled to foreclosure; and (3) in accordance with the “Condominium Declaration” and Texas law, it was entitled to recover reasonable and necessary attorney's fees incurred in connection with its counterclaim.

In the “Argument and Authorities” section of its traditional motion, the Association asserted in part

As set forth below, the Association is entitled to judgment, as a matter of law, because the pleadings and summary judgment evidence demonstrate there is no genuine issue as to any material fact regarding Plaintiff's ongoing breach of the Association's Condominium Declaration, Bylaws and Rules and Regulations, and his personal liability for the delinquent amounts owed as a result of that breach.... Accordingly, the Association is entitled to summary judgment against Plaintiff on its entire Counterclaim for the full amount due and owning, and for foreclosure of its assessment lien against Plaintiff's unit.

....

Pursuant to its authority, the Association established regular monthly assessments,adopted the Rules and Regulations regulating the conduct of the owners and governing the use of the Condominium, established a system of fines for violations of the Rules and Regulations, and adopted a Payment Application Policy setting forth the order in which payments from a unit owner will be applied to satisfy charges for which the owner is liable. The Plaintiff is bound by the Association's authority, must abide by the Association's actions taken under such authority, and is personally liable to the Association for the consequences of his actions in contravention of that authority. Therefore, for his repeated breaches of the Condominium Declaration, Bylaws and Rules and Regulations, the Association is entitled to a summary judgment against Plaintiff in the amount of $13,405.64, together with interest at the rate of 18% per annum.

Attached to the Association's traditional motion for summary judgment were affidavits of (1) Duane Bates, general manager of the Association, and (2) John A. Isbell, an attorney hired by the Association.

Bates testified in part in his affidavit (1) “I have personal knowledge of the facts stated herein and they are true and correct” and (2) “As of November 18, 2011, the Plaintiff owes a total of $13,405.64, including delinquent regular monthly assessments, fines, late fees and other charges.” Additionally, Bates's testimony included descriptions of noise and conduct violations by Ellis essentially identical to those described in the Association's traditional motion for summary judgment. Further, Bates stated in part in his affidavit

As the General Manager, I am the custodian of the records for the Association and I am familiar with the documents attached hereto .... These records are kept by the Association in the regular course of business. It was the regular course of the Association's business for an employee or a representative of the Association, with personal knowledge of the act, event or condition recorded, to make and preserve the documents attached hereto ....

Exhibits attached to Bates's affidavit included, in part (1) a “Condominium Declaration for The Renaissance on Turtle Creek Condominium” (the “Declaration”); (2) “Bylaws of The Renaissance on Turtle Creek Condominium Association, Inc.”; (3) “Rules and Regulations of The Renaissance on Turtle Creek Condominium Association, Inc.”; (4) resolutions adopting the rules and regulations, a “revised fining structure” and a “payment application policy”; (5) a “resident transaction report” showing an accounting of amounts owed by Ellis to the Association and payments made by Ellis from January 2009 through November 18, 2011; and (6) twelve written notices from Bates to Ellis describing violations committed by Ellis and the fines imposed.³

Isbell's testimony in his affidavit included in part (1) assertions that he has been licensed to practice law in Texas continually since November 1987, is a partner in a law firm, and has “personal knowledge of the facts stated herein,” and (2) a list of specific tasks that “attorneys and paralegals at my firm, including myself, have done, have caused to be done, or will do ... in connection with the Association's Counterclaim,” including, inter alia, “engaged in extensive written...