Raymond v. Aquarius Condominium Owners Ass'n, Inc.

• Decision Date: 10 November 1983
• Docket Number: No. 2483CV,2483CV
• Citation: 662 S.W.2d 82
• Parties: Sherwin H. RAYMOND and Elizabeth Raymond, Appellants, v. AQUARIUS CONDOMINIUM OWNERS ASSOCIATION, INC., Appellee.
• Court: Texas Court of Appeals

Page 82

662 S.W.2d 82

Sherwin H. RAYMOND and Elizabeth Raymond, Appellants, v. AQUARIUS CONDOMINIUM OWNERS ASSOCIATION, INC., Appellee.

No. 2483CV.

Court of Appeals of Texas Corpus Christi.

Nov. 10, 1983.

Lee Arnett, Brownsville, for appellants.

Jeffrey D. Roerig, Brownsville, for appellee.

Before NYE, C.J., and YOUNG and KENNEDY, JJ.

OPINION

NYE, Chief Justice.

Appellee, Aquarius Condominium Owners Association, Inc., brought this suit against appellants, Sherwin H. and Elizabeth Raymond, to collect assessments charged against appellants in connection with two condominium apartments purchased by appellants and to foreclose upon the apartments. Appellants countered with a claim for damages to the apartments and contended that the assessments sued for by Aquarius were invalid assessments under the Texas Condominium Act. Following a trial before the court without a jury, the trial judge entered judgment for $39,965.00 against appellants as the full amount of damages suffered by appellee, less $5,000.00 for injury to the apartments. The court granted appellee a lien against both units to secure the entire amount of the judgment. Appellants raise five points of error on appeal. We affirm the judgment of the trial court.

In 1973, appellants from the state of Massachusetts contracted to purchase two apartments in the Aquarius Condominium, situated at South Padre Island, Cameron County, Texas. They made the initial down payments and delivered the balances owed to purchase both units. Thereafter, on October 15, 1974, Condominium Warranty Deeds were recorded in the Condominium Records of Cameron County, Texas, conveying apartments 806 and 908 in the Aquarius Condominium building from Zodiac Corporation, the developer, to appellants.

Appellee is defined in the Declaration for Aquarius Condominium as a Texas non-profit corporation organized as the governing body of the council of co-owners, meaning all the owners acting as a group. The Declaration establishing the Aquarius Condominium regime was adopted pursuant to the Texas Condominium Act, TEX.REV.CIV.STAT.ANN. art. 1301a (Vernon 1980), and was recorded as required by the Act. Pursuant to the Declaration, appellee exists primarily for the maintenance, repair and replacement of the common elements. Through its Board of Directors, the appellee administers the overall operation of the project constituted as the Aquarius Condominium.

The Warranty Deeds to both apartments were made expressly subject to the provisions of the Texas Condominium Act and incorporate by reference the Condominium Declaration for Aquarius Condominium. The deeds also state the conveyances are made subject to "all rules, regulations and agreements lawfully made and/or entered into pursuant to the provisions of the Condominium Act and Condominium Declaration." The Declaration provided that each of the two condominiums purchased by appellants included a 1/74 ownership interest in the common elements of the condominium regime. In that respect, appellants were to bear their proportionate share of the "common expenses" during their ownership of the units. The Declaration states that "common expenses" include:

(1)(j) 1. All sums assessed against the owners by the Board of Directors;

2. Expenses of administration, maintenance, repair or replacement of the common elements;

3. Expenses agreed upon as common expenses by the Council of Co-owners; and

4. Expenses declared common expenses by the provisions of the Act, the Declaration or the bylaws.

The Declaration further provides that a lien in the amount due shall be fixed upon the owner's unit in favor of appellee on failure or refusal of any owner to make any payment of the common expenses when due.

It is those amounts assessed against appellants by the Board of Directors of appellee which gave rise to the present litigation.

In the first four points of error, appellants challenge the legal and factual sufficiency of the evidence to support the trial court's judgment against them. Appellants complain that there is no evidence or, in the alternative, insufficient evidence to support the implied finding that the assessments against appellants were lawful. In considering a "no evidence" or "insufficient evidence" point of error, we will follow the well established test set forth in Glover v. Texas General Indemnity Company, 619 S.W.2d 400 (Tex.1981); Garza v. Alviar, 395 S.W.2d 821 (Tex.1965); Allied Finance Company v. Garza, 626 S.W.2d 120 (Tex.Civ.App.--Corpus Christi 1981, writ ref'd n.r.e.); CALVERT, No Evidence and Insufficient Evidence Points of Error, 38 Tex.L.Rev. 359 (1961).

The record shows that a request for findings of fact and conclusions of law was filed by appellants. However, there is nothing in the record to show that a subsequent complaint for failure to file such findings and conclusions was ever presented to the trial judge as required by Rules 296 and 297 of the Texas Rules of Civil Procedure. Having failed to properly present their request for findings of fact and conclusions of law, all questions of fact are presumed found in support of the judgment, and the judgment of the trial court must be affirmed upon any legal theory finding support in the pleadings and evidence. Lassiter v. Bliss, 559 S.W.2d 353 (Tex.1977); Owens v. Travelers Insurance Company, 607 S.W.2d 634, 637 (Tex.Civ.App.--Amarillo 1980, writ ref'd n.r.e.); City of Kingsville v. International Association of Firefighters, etc., 568 S.W.2d 397 (Tex.Civ.App.--Corpus Christi 1978, no writ).

Appellants' defense to payment of the assessments is predicated on the argument that the rental pool operated by appellee results in a net expense or at least causes an increase in the existing expenses which has the effect of forcing appellants to be a part of the rental pool against their wishes. Restated, appellants contend the principal question in this case is:

"In the absence of specific authorization in the Act, the Declaration, or the bylaws, may the Board assess condominium owners who are not members of the rental pool for the expenses of operation of the rental pool without their consent."

Our review of the evidence under the standards as set out above shows that the evidence is sufficient to support appellee condominium owners' position that the rental operation at Aquarius does not excuse appellants from contributing their pro rata share of the "common expenses" during ownership of both apartments.

In September 1974, the three original Directors of appellee set the initial assessment at $85.00 per 1/74 ownership interest. Appellants acknowledge receipt of their first billings for expenses in connection with their apartments dated March and April 1, 1975, which indicate the current charges of $85.00 per month per unit with the unpaid balances forwarded.

Effective May 1, 1976, the evidence and testimony verifies that the Board of Directors of appellee approved an increase of the regular monthly assessments to $162.00 a month for units without telephones, such as the two purchased by appellants. Mrs. Lee Lancaster, a condominium owner, officer and Director since April of 1976, testified that, because the previous assessment was not covering the total expenses incurred by the project operation, the Board believed that it was necessary to increase the monthly assessment. In addition, a single special assessment of $160.00 per unit was approved by the Board to establish a reserve fund to pay immediate bills which appellee was at that time without funds to pay. Appellants admit there is adequate evidence of an emergency to support the need for the $160.00 special assessment. Mrs. Lancaster further testified that, at some time during or shortly after the April 1976 meeting, when appellee was in the process of taking over the operation from Aquarius East, Ltd., appellee made a re-assessment of $1,027.00 per unit. Mrs. Lancaster explained that this sum represented that amount of money advanced by the developer corporation to cover expenses incurred while it was administering the building at a loss. Mrs. Lancaster further testified the reassessment was agreed upon by appellee in order to get developer corporation out of the operation of the Aquarius building.

At the Board of Directors meeting on September 17, 1977, the evidence shows the regular monthly assessments were increased to $190.00 per month per unit or $182.00 per month per unit for those apartments without telephones, effective November 1, 1977. The parties have stipulated that this is the correct amount through the date of the judgment. At the September 1977 meeting, a special assessment of $300.00 per unit was approved by the Board of Directors. The evidence supports the testimony of Mrs. Lancaster that the assessment money was for the use of general improvements and major repair to the building. The assessment was kept in a separate savings account for that purpose. Appellants acknowledge this assessment as one voted on by the Board of Directors for this purpose.

The final charge claimed by appellee as collectible against appellants is for the pro rata share of the insurance amounting to $510.35 per unit for the years 1975 through 1978. Mrs. Lancaster testified that the unit owners were assessed yearly an amount to help cover their portion of the entire structure that is insured.

It is undisputed that appellants have not paid any amount of money for any of the assessments, regular or special, charged against them in connection with their units since the time appellants purchased these condominiums. Appellants' refusal to pay is premised on their contention that the assessments were not lawfully made in compliance with the Texas Condominium Act, art. 1301a § 15, given appellee's involvement in the operation of a rental pool for the benefit of those owners who choose to participate. It is also undisputed that appellants have not elected to participate in the rental pool during the subject time...