SANDI SAMMS GRACE BUCK v. AUTUMN RUN COMMUNITY IMPROVEMENT ASSOCIATION, INC

• Decision Date: 17 February 2000
• Citation: 23 S.W.3d 398
• Parties: <!--23 S.W.3d 398 (Tex.App.-Houston 2000) SANDI SAMMS and GRACE D. BUCK, Appellants v. AUTUMN RUN COMMUNITY IMPROVEMENT ASSOCIATION, INC., Appellee NO. 01-99-00349-CV Court of Appeals of Texas, Houston
• Court: Texas Court of Appeals

Page 398

23 S.W.3d 398 (Tex.App.-Houston[1st Dist.] 2000)

SANDI SAMMS and GRACE D. BUCK, Appellants v AUTUMN RUN COMMUNITY IMPROVEMENT ASSOCIATION, INC., Appellee

NO. 01-99-00349-CV

Court of Appeals of Texas Houston.

February 17, 2000.

Rehearing Overruled June 9, 2000.

On Appeal from the 61st District Court

Harris County, Texas

Trial Court Cause No. 98-27183 Panel consists of Justices O'Connor, Hedges, and Price.^*

O P I N I O N

Michol O'Connor, Justice.

On June 11, 1998, Sandi Samms, the plaintiff below and appellant here, filed suit against Autumn Run Community Improvement Association, Inc., the defendant below and appellee here. Grace Buck, the intervenor below and appellant here, intervened. Samms and Buck sought declaratory judgments interpreting the Autumn Run Section One deed restrictions to require an amendment before the annual assessment could exceed $144, the rate charged under the original deed restrictions. The parties filed cross-motions for summary judgment, and the trial court granted summary judgment in favor of Autumn Run. On appeal, Samms and Buck, in two points of error, claim the trial court erroneously granted summary judgment because Autumn Run did not show the deed restrictions could be amended by the affirmative defense of ratification; and the court should have granted Samms' and Buck's motions for partial summary judgment.

Facts

Autumn Run is a subdivision located in Katy, Texas. The subdivision is divided into three "sections." On January 18, 1978, deed restrictions for "Autumn Run Section One" were recorded in the real property records of Harris County, Texas. Article VI, paragraph 2 states:

Each lot in said Subdivision is hereby subjected to an annual maintenance charge and assessment not to exceed $12 per month or $144 per annum, for the purpose of creating a fund to be designated and known as the "maintenance fund", which maintenance charge and assessment will be paid by the Owner or Owners of each Lot within said Subdivision, and any annexed areas, to the Autumn Run Community Improvement Association, in advance in quarterly or annual installments, commencing as to all lots on the first day of the month following the conveyance of the third lot to a homeowner. The rate at which each lot will be assessed, and whether such assessment rate shall be payable quarterly or annually, will be determined annually by the Board of Directors of the Autumn Run Community Improvement Association at least thirty (30) days in advance of each annual assessment. Said rate and when same is payable may be adjusted from year to year by said Board of Directors as the needs of the Subdivision may in the judgement[sic] of the Directors require.

On April 30, 1983, Samms purchased a lot in Autumn Run Section One. On July 27, 1983, Buck purchased a nearby lot, also in section one.

The "assessments" cover trash collection, maintenance of common areas, mosquito control, pool management, and electric bills. In 1987, the annual assessment per lot was $192. In the years following, the rate steadily increased to $260 in 1998.¹ To date, the deed restrictions have not been amended.

On July 20, 1997, six homeowners in section one petitioned the board of directors for Autumn Run Section One, demanding that assessment fees immediately be lowered to $144. The homeowners also demanded "a refund of every dollar over $144 for every year we have overpaid our assessment fee, plus ten percent interest." Samms and Buck both signed the petition. In response, the board informed the six concerned property owners that the matter was turned over to Autumn Run's attorney for further research and opinion.

During the next year, the following occurred:

11-13-97: Autumn Run sent out statements for the 1998 annual assessment of $260.

1-28-98: Buck tendered a check for $144 as payment in full.

1-29-98: Samms tendered a check for $144 as payment in full.

2-18-98: Buck received a bill from Autumn Run for $260 and an additional $27.16 in late charges.

2-21-98: Samms received a bill from Autumn Run for $260 and an additional $27.16 in late charges.

3-2-98: Samms resubmitted what she termed the "maximum legal assessment" of $144. Samms also requested evidence of amendments to the deed restrictions if a greater rate was to be charged.

3-9-98: Buck resubmitted $144 because she was advised that was all she owed.

3-20-98: Autumn Run sent Samms and Buck notices of delinquent assessment default.

3-30-98: Samms again requested proof of amendments to the deeds.

4-20-98: Autumn Run responded to Samms and Buck that no amendments had been made. Autumn Run claimed amendments were not necessary because the residents had ratified the assessment increase. The letter inferred that Samms' problem with the assessment rate stemmed from the removal of the board of directors the prior year. Samms' check for $144 was returned as insufficient.

4-29-98: Samms sent a letter to Autumn Run "applauding" the board's decision to consider legally amending the deed restrictions.

5-29-98: Samms and Buck received notices of intent to foreclose.

6-11-98: Samms filed a lawsuit against Autumn Run Community Improvement Association.

6-13-98: Buck intervened in the lawsuit.

The Lawsuit

In their petitions, Samms and Buck sought declaratory judgments to determine the maximum annual maintenance assessment, unless otherwise amended, as "not to exceed . . . $144 per annum;" breach of restrictive covenants; and damages for intimidation and harassment, and attorney's fees. Autumn Run filed general denials.

Samms and Buck moved for partial summary judgment, requesting an interlocutory finding that charging in excess of $144 per annum was not in compliance with the deed restrictions. Autumn Run responded that Samms and Buck ratified the change because they had been paying more than $144 since at least 1986. Autumn Run also argued that waiver, estoppel, and laches applied. Samms' and Buck's motions were denied.

Autumn Run filed summary judgment motions against Samms and Buck, asserting that the lot owners in Section One ratified the rate by routinely complying with the assessment charged. The trial court granted Autumn Run's motions.

Standard of Review

The summary judgment rule provides a method for summarily ending a case that involves only a question of law and no fact issues. Tex. R. App. P. 166a(c); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex. 1985); Cigna Ins. Co. v. Rubalcada, 960 S.W.2d 408, 411 (Tex.App.-Houston [1st Dist.] 1998, no pet.). When, as here, both sides move for summary judgment and the trial court grants one motion and denies the other, we review the summary judgment evidence presented by both sides and determine all questions presented. Commissioner's Ct. of Titus Cty v. Agan, 940 S.W.2d 77, 81 (Tex. 1997); Rubalcada, 960 S.W.2d 411-12. We render such judgment as the trial court should have rendered.

Summary judgment is proper only when a movant establishes there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995); Marchal v. Webb, 859 S.W.2d 408, 412 (Tex.App.-Houston [1st Dist.] 1993, writ denied). A defendant is entitled to summary judgment if the evidence disproves as a matter of law at least one element of each of the plaintiff's causes of action or it conclusively establishes all elements of an affirmative defense as a matter of law. Johnson, 891 S.W.2d at 644. This burden is particularly onerous in the case of ratification because it hinges on the question of intent. The Atrium v. Kenwin Shops of Crockett, Inc., 666 S.W.2d 315, 318 (Tex.App.-Houston [14th Dist.] 1984, writ ref'd n.r.e.).

Once the movant has established a right to a summary judgment, the burden shifts to the nonmovant. Marchal, 859 S.W.2d at 412. The nonmovant must respond to the motion for summary judgment and present to the trial court any issues that would preclude summary judgment. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979); Marchal, 859 S.W.2d at 412.

We cannot consider any ground for reversal that was not expressly presented to the trial court by written motion, answer, or other response to the motion for summary judgment. Clear Creek Basin Auth., 589 S.W.2d at 677; Hussong v. Schwan's Sales Enter., Inc., 896 S.W.2d 320, 323 (Tex.App.-Houston [1st Dist.] 1995, no writ). We will affirm the summary judgment if any of the theories advanced in the defendant's motion for summary judgment are meritorious. See Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 626 (Tex. 1996); Rubalcada, 960 S.W.2d at 411.

Samms' and Buck's Motions for Summary Judgment

In their motions for partial summary judgment, Samms and Buck asked the trial court to find that there was no compliance with the deed restrictions or any law that would permit Autumn Run to charge more than $144 for 1998 without first amending the deed restrictions. Samms and Buck claim that, without the amendments, prospective buyers will be misled by the $144 assessment rate that still appears in the deed restrictions. Autumn Run responded that Samms and Buck ratified the assessments.

Samms and Buck claim the only way to amend the deed restrictions is under the terms of Article VIII, section I, of the deed restrictions, which states:

[T]hese covenants are to run with the land and shall be binding upon all parties hereto and all persons claiming under them for a period of forty (40) years from the date these covenants are recorded, after which time said covenants shall be automatically extended for successive periods of ten (10) years, however the covenants and restrictions of this Declaration may be amended during the first forty (40) year period by an instrument signed by not less than ninety (90) percent of the lot owners, and thereafter by an instrument signed by not less than seventy-five (75) percent...