Morton v. Paradise Cove Property Owners Association, No. 11-08-00022-CV (Tex. App. 9/3/2009)

• Decision Date: 03 September 2009
• Docket Number: No. 11-08-00022-CV.,11-08-00022-CV.
• Parties: PHYLLIS A. MORTON, Appellant, v. PARADISE COVE PROPERTY OWNERS ASSOCIATION, GLENN HANSON, CHARLES R. SHOTWELL, ANDSHERLYN SHOTWELL, Appellees.
• Court: Texas Court of Appeals

Page 1

PHYLLIS A. MORTON, Appellant,
v.
PARADISE COVE PROPERTY OWNERS ASSOCIATION, GLENN HANSON, CHARLES R. SHOTWELL, ANDSHERLYN SHOTWELL, Appellees. No. 11-08-00022-CV. Court of Appeals of Texas, Eleventh District, Eastland. September 3, 2009.

On Appeal from the 258th District Court San Jacinto County, Texas, Trial Court Cause No. CIV. 11,234.

Panel consists of: WRIGHT, C.J., McCALL, J., and STRANGE, J.

MEMORANDUM OPINION

McCALL, Justice.

This is an appeal from a summary judgment granted in favor of appellees.¹ We affirm. Appellant, Phyllis A. Morton, was a property owner in the Paradise Cove Subdivision. She instituted the underlying action by filing suit against the Paradise Cove Property Owners Association, Inc. (the Association) on May 10, 2005. She alleged in her original petition that the Association had violated the deed restrictions applicable to the subdivision in the following respects: (1) allowing the building of homes in Block 8 of the subdivision that are more than one story and (2) improperly displaying signs or allowing signs to be improperly displayed in the subdivision. Appellant sought injunctive relief and monetary damages against the Association in her original petition.

Appellant subsequently amended her pleadings by expanding her claims and adding addi-tional defendants. She alleged that Glenn Hanson, Charles R. Shotwell, and Sherlyn Shotwell were liable as lot owners of properties that she asserted were in violation of the applicable deed restrictions. She also asserted that these individuals were liable in their respective capacities as members of the Association's Architectural Control Committee or officers of the Association. Appellant asserted that Hanson's home and the Shotwells' home were in violation of the deed restrictions because they were more than one story. She also alleged that Bruce Spickard's home was greater than one story. Appellant additionally asserted that Hanson constructed a driveway on his lot that violated the applicable deed restrictions. In addition to seeking injunctive relief, appellant asserted claims for breach of contract, fraud, and "Deceptive Business Practices." She sought damages for diminished property values, mental anguish, and exemplary damages.

Appellees filed a lengthy motion for summary judgment.² They presented both traditional and no-evidence summary judgment grounds with respect to appellant's claims for affirmative relief and their counterclaims for declaratory relief. In addition to filing a response to appellees' motion for summary judgment, appellant filed her own motion for summary judgment on her claims for affirmative relief.

The trial court granted appellees' motion for summary judgment in all respects and denied appellant's motion for summary judgment. The only issue remaining for consideration after the entry of the summary judgment order was appellees' claims for attorney's fees. After considering the attorney's fees issue at a bench trial, the trial court entered a final judgment that incorporated its previous summary judgment order. In this regard, the trial court dismissed all of appellant's causes of action and entered a declaratory judgment in favor of appellees. The trial court additionally awarded appellees $ 50,200 for attorney's fees through trial, $12,000 for attorney's fees in the event of an appeal to the court of appeals, $3,000 for attorney's fees in the event a petition for discretionary review is filed in the Texas Supreme Court, and $5,000 for attorney's fees in the event the Texas Supreme Court requests briefing on the merits.

Issues on Appeal

Appellant presents two issues on appeal. She asserts in her second issue that the trial court erred in granting appellees' motion for sanctions. A reporter's record from a hearing conducted on November 15, 2006, indicates that the trial court orally granted appellees' motion for sanctions. However, the trial court's final judgment does not impose sanctions against appellant, and the clerk's record does not contain a separate written order assessing sanctions. Furthermore, the final judgment provides that "all relief requested in this case and not expressly granted is denied." Appellees acknowledge the absence of a written order imposing sanctions against appellant. In this regard, appellees contend that appellant's second issue is moot.³ We agree. In the absence of a written order imposing sanctions, we overrule appellant's second issue on the basis that it is moot.

Appellant's first issue reads as follows: "Whether the trial court erred in granting summary judgment [in favor of appellees]." She cites Malooly Bros., Inc. v. Napier, 461 S.W.2d 119 (Tex. 1970), for the proposition that an appellate issue stating that the trial court erred in granting summary judgment is sufficient to preserve error and allow argument as to all possible grounds upon which summary judgment should have been denied. Although appellant has presented a broadly stated issue, her arguments on appeal are quite limited. She only argues the following two grounds for overturning the trial court's summary judgment: (1) a genuine issue of material fact exists as to whether the "single story" deed restriction was violated and (2) the discovery rule should apply to prevent limitations or laches from applying. In other words, appellant has not presented any argument in her brief regarding her claim for fraud and deceptive business practices. She also has not presented any arguments pertaining to her deed restriction claims for signs erected in the subdivision or the construction of a driveway on Hanson's property. Any complaints that appellant may have regarding those theories of recovery are waived because she did not present argument and legal authorities in her brief to preserve error on those complaints. See TEX. R. APP. P. 38.1(i); Henriquez v. Cemex Mgmt., Inc., 177 S.W.3d 241, 255 (Tex. App.-Houston [1st Dist.] 2005, no pet.) (a general Malooly issue is sufficient to preserve a complaint only if the specific ground challenged on appeal is supported by argument); Cruikshank v. Consumer Direct Mortgage, Inc., 138 S.W.3d 497, 502 (Tex. App.-Houston [14th Dist.] 2004, pet. denied); Pena v. State Farm Lloyds, 980 S.W.2d 949, 959 (Tex. App.-Corpus Christi 1998, no pet.); Jatoi v. Decker, Jones, McMackin, Hall & Bates, 955 S.W.2d 430, 433-34 (Tex. App.-Fort Worth 1997, pet. denied).

As set forth in the preceding paragraph, the questions to be resolved in this appeal are not particularly complex. Despite the relative simplicity of the issues, the parties have presented this court with a clerk's record that consists of more than 6,000 pages. Furthermore, a nineteen-volume reporter's record has also been filed in this appeal even though this is an appeal from a summary judgment.⁴ The record filed in this appeal is excessive because it contains many items that are unnecessary to our review of the issues on appeal. See TEX. R. APP. P. 34.5(b)(3). A record of this magnitude would only be justified in an appeal from a lengthy jury trial or an appeal involving unusually difficult legal or factual issues. The task of reviewing this lengthy record has been unduly burdensome, and it has unnecessarily delayed the disposition of this case as well as other appeals pending before this court. The attorneys in this case, both on...