Riddick v Quail Harbor Condo. Ass'n
Decision Date | 28 October 1999 |
Citation | 7 S.W.3d 663 |
Parties | <!--7 S.W.3d 663 (Tex.App.-Houston 1999) W. M. RIDDICK, Appellant V. QUAIL HARBOR CONDOMINIUM ASSOCIATION, INC., Appellee NO. 14-97-00820-CV Court of Appeals of Texas, Houston (14th Dist) |
Court | Texas Court of Appeals |
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
[Copyrighted Material Omitted] Panel consists of Justices Draughn, Lee, and Hutson-Dunn*.
W. M. Riddick, appellant, appeals from a partial summary judgment, a take nothing jury verdict, and an award of attorney's fees in favor of appellee, Quail Harbor Condominium Association, Inc. In four issues, appellant contends: (1) the trial court erred in entering a partial summary judgment in favor of appellee, (2) the jury charge was defective, (3) the evidence is legally and factually insufficient to support the jury findings, and (4) the trial court improperly awarded attorney's fees to appellee. In a fifth issue, appellant states that his original proposed jury charge submitted to the trial court has been lost or destroyed, and he will supplement his brief to address this issue. We reverse that part of the trial court's judgment awarding appellee its attorney's fees, and render judgment that appellee take nothing. We affirm the remainder of the trial court's judgment.
A. Facts. Appellant purchased unit 1005, a one-story condominium from appellee in 1987. The slab foundation of appellant's condominium rests on a clay and loam soil that expands when it's wet and shrinks when it's dry. The shifting soil caused the foundation to move, and the resulting movement of the foundation caused cracks in the interior and exterior walls of appellant's unit.
The operations of the condominium association were controlled by the Condominium Declaration for Quail Harbor (declaration). By the terms of the declaration, appellant owned only the inner finished surfaces and the interior walls, floors, ceilings, doors, and windows. The declaration provided that appellant, as an "owner," was responsible for the repairs and maintenance of the interior plus all utilities, accessories, equipment, and fixtures belonging to the unit. Under the terms of the declaration, the foundation, roof, exterior of the unit, and the land underneath the unit were designated as the "common elements," which were owned jointly by all of the owners of the units in the condominium regime. Appellant owned a 1.0779% undivided interest in the "common elements." Only the association was authorized to perform maintenance and repairs on the common elements.
After receiving appellant's initial complaint, in September 1988, appellee hired Peverly Engineering (Peverly) to investigate the problems. In their first report in 1988, Peverly recommended removal of surrounding trees that were draining the soil of water and installation of an automatic soaker system to keep the soil at a constant moisture level. In 1990, Peverly recommended continuance of the watering to stabilize the foundations. Peverly noted improvement in 1992, and again recommended continued watering. Peverly also inspected appellant's unit in September 1992, and noted that there was improvement in the problem.
B. Procedural Background. Appellee filed a motion for summary judgment, and appellant did not file a response. In March 1995, the trial court granted a partial summary judgment as to appellant's deceptive trade practices claim (DTPA) and declaratory judgment action without specifying the grounds. In September 1996, the remaining issues were tried, and the jury entered a take nothing verdict on all of appellant's causes of actions. While the jury was deliberating, the trial court heard evidence on the reasonableness of attorney's fees from both sides. Thereafter, at a hearing on appellee's motion for judgment, the trial court heard argument on appellee's counterclaim for attorney's fees. In its fourth amended original answer, appellee counterclaimed for attorney's fees under section 17.50(c), Texas Business and Commerce Code, alleging that appellant's suit for damages under DTPA was groundless, brought in bad faith, and for purposes of harassment. The trial court found that appellant's DTPA claim wasgroundless and brought in bad faith, and that $22,558.80 was reasonable for appellee's attorney's fees incurred in the defense of appellant's DTPA claim. Judgment was entered that appellant take nothing, and that appellee's recover their attorney's fees in the sum of $22,558.80 for appellant's groundless DTPA claim, plus prejudgment and postjudgment interest. Thereafter, appellant filed a request for findings of fact and conclusions of law. No findings or conclusions were filed by the trial court.
In his first issue, appellant contends the trial court erred in granting a partial summary judgment in favor of appellee as to appellant's DTPA action and declaratory judgment claim. Appellee moved for summary judgment on appellant's DTPA claim on three grounds: (1) appellant was not a consumer; (2) appellee made no representations to appellant; and (3) appellant's claim was barred by the two-year statute of limitations. As to the declaratory judgment action, appellee's grounds were: (1) declaratory judgment was inappropriate because appellant's claim was mature and enforceable in the pending suit, and (2) appellant did not join other co-owners who had a claim or interest under 37.006(a), Texas Civil Practice and Remedies Code. Appellant did not respond, and the trial court granted appellee's motion for summary judgment as to appellant's DTPA and declaratory judgment claims only.
A. Standard of Review. In order to prevail on summary judgment, the movant must disprove at least one of the essential elements of each of the plaintiff's causes of action. Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991). This burden requires the movant to show that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985). In determining whether a material fact issue exists to preclude summary judgment, evidence favoring the nonmovant is taken as true, and all reasonable inferences are indulged in favor of the nonmovant. Id.; see also Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex. 1995). Any doubt is resolved in favor of the nonmovant. Nixon, 690 S.W.2d at 548-49; see also Doe, 907 S.W.2d at 477.
A summary judgment may be affirmed on any of the movant's theories which has merit. See Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 627 (Tex. 1996). Appellate courts should consider all grounds for summary judgment the movant presented to the trial court when properly preserved for appeal. Id. at 625.
B. Discussion of the DTPA claim. Because the trial court did not specify the grounds on which it granted the summary judgment motion, we will consider all grounds presented by appellee. Because appellant failed to respond to appellee's motion for summary judgment, he is limited on appeal to our review of the legal sufficiency of appellee's grounds for summary judgment. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678-79 (Tex.1979).
1. Appellant's consumer status. One of the grounds asserted by appellee in its motion for summary judgment was appellant was not a "consumer." "'Consumer'" means an individual, partnership, corporation . . . who seeks or acquires by purchase or lease, any goods or services . . . ." TEX. CIV. PRAC. & REM. CODE ANN. 17.45(d) (Vernon 1987 & Supp. 1999). Appellant cites River Oaks Townhomes Owners' Association, Inc. v. Bunt, 712 S.W.2d 529 (Tex.App.-Houston[14th Dist.] 1986, writ ref'd n.r.e.) as authority for the proposition that payment of monthly maintenance fees constituted a "purchase" under the DTPA. River Oaks Townhomes Owners' Assn. did not decide the issue, and is not authority for appellant's contention that his payment of appellee's mandatory maintenance fees was a "purchase" that made him a "consumer." Id. at 531. In that case, this court did not decide the issue because appellee had not proved he "sought or acquired" a service. Neither appellant nor appellee cite any Texas authority on this point, and we find none.
To establish DTPA consumer status, a plaintiff must have sought or acquired goods or services by purchase or lease, and the goods or services purchased or leased must form the basis of the complaint. Melody Home Mfg. Co. v. Barnes, 741 S.W.2d 349, 351-52 (Tex.1987); Ocean Transport, Inc. v. Greycas, Inc., 878 S.W.2d 256, 271 (Tex.App.-Corpus Christi 1994, writ denied); Johnson v. DeLay, 809 S.W.2d 552, 554 (Tex.App.--Corpus Christi 1991, writ denied). A plaintiff establishes its standing as a consumer by the terms of its relationship to a transaction, and not by a contractual relationship with the defendant. Kennedy v. Sale, 689 S.W.2d 890, 893 (Tex.1985); Flenniken v. Longview Bank & Trust Co., 661 S.W.2d 705, 707 (Tex.1983).
By the terms of the condominium declaration, maintenance and repair of the common elements are the duties of the association. The fees charged each owner is an assessment by the terms of the declaration, and the amounts of the fees are set by the board of directors based on cash requirements "necessary to provide for the payment of all estimated expenses growing out of or connected with the maintenance and operation of the common elements."(Article 5.3, "Determination of Assessments," of the Condominium Declaration). If any owner does not pay the monthly maintenance assessment, the association can file a lien for the charges. The association controls all operations, payment of costs of maintenance and repair to the common elements, and all other...
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