Yeske v. Piazza Del Arte, Inc.

• Decision Date: 22 December 2016
• Docket Number: NO. 14–15–00633–CV,14–15–00633–CV
• Citation: 513 S.W.3d 652
• Parties: Randy L. YESKE, Appellant v. PIAZZA DEL ARTE, INC., Swiss International, Inc. d/b/a Swiss Builders, Tino Bekardi, David E. Kassab and Paul Garney, Appellees
• Court: Texas Court of Appeals

513 S.W.3d 652

Randy L. YESKE, Appellant

v.PIAZZA DEL ARTE, INC., Swiss International, Inc. d/b/a Swiss Builders, Tino Bekardi, David E. Kassab and Paul Garney, Appellees

NO. 14–15–00633–CV

Court of Appeals of Texas, Houston (14th Dist.).

Opinion filed December 22, 2016

John Edward Maher, Kenneth A. Zimmern, Houston, TX, for Appellant.

Lance Christopher Kassab, M. Micah Kessler, Houston, TX, for Appellee.

Panel consists of Justices Jamison, McCally, and Wise.

OPINION

Ken Wise, Justice

To stop a non-judicial foreclosure on his condominium unit, appellant Randy L. Yeske filed a lawsuit against three individuals who served on the board of directors of the condominium's homeowners association and two corporations. Yeske alleged, among other things, that the homeowners association was never properly incorporated and therefore lacked authority to collect assessments or foreclose on his unit. Yeske sought declaratory relief and also asserted numerous claims for damages against the defendants. In a series of interlocutory orders, the trial court ruled in favor of the defendants on all of Yeske's claims. The trial court then severed the homeowners association's counterclaims, making the interlocutory orders disposing of Yeske's claims final. On appeal, Yeske raises seven issues challenging the trial court's rulings and the severance of the association's counterclaims. We affirm in part and reverse and remand in part.

FACTUAL AND PROCEDURAL BACKGROUND

In 2001, Tino Bekardi incorporated a for-profit company called Piazza Del Arte, Inc. to develop the Piazza Del Arte Condominiums, a twelve-unit condominium project located at 5801 Winsome Lane in Houston. Bekardi's company, Swiss International, Inc. d/b/a Swiss Builders ("Swiss Builders"), completed construction on the condominiums in 2006. Piazza Del Arte, Inc. forfeited its corporate charter several years later.

On February 14, 2006, a non-profit corporation named PDA HOA 5801 Winsome was formed to operate the Piazza Del Arte Homeowners Association (the Association). Later that same year, Bekardi filed in Harris County a condominium declaration (the "Declaration") for the Piazza Del Arte Condominiums.¹

Through foreclosure, Randy L. Yeske purchased a unit in the Piazza Del Arte Condominiums in October 2009. After purchasing the unit, Yeske "began noticing some inconsistencies in the assessments taxed against each of the unit owners." Yeske requested various documents from the Association, including the Association's "bylaws, declarations, proof of insurance, operating statements, calculations of assessments charged to the owners, [and] detailed accounting and other pertinent documentation relevant to ownership within and operation of the alleged homeowners association." The parties dispute whether the requested documents were ever made available to Yeske.

According to Yeske, he discovered that the Association was never properly incorporated and therefore never legally existed. The parties dispute whether Yeske subsequently failed to pay his condominium assessments for 2012 and 2013. After giving Yeske notices that his assessments had not been paid, the Association's Board of Directors (the "Board") voted to proceed with a non-judicial foreclosure on Yeske's unit. At that time, Bekardi was the president of the Association, Paul Garney was the vice-president, and David E. Kassab was the treasurer. Bekardi resigned in January 2013, and Garney became president. Walter Ebarb, another unit owner, became vice-president, and Kassab remained as treasurer.

In response to the threat of foreclosure, Yeske filed this lawsuit and placed $3,100.00—representing one year's dues—in the registry of the court. In his first amended petition, Yeske sought a declaratory judgment that "Piazza Del Arte Homeowners Association, Inc. has not been organized pursuant to the statutes, codes and laws of the State of Texas, and as such is not a viable homeowners association and lacks authority to act according[ly]." Yeske also asserted numerous claims for damages against the defendants, including defamation, misappropriation of funds, wrongful foreclosure, breach of fiduciary duty, negligence, and gross negligence. Yeske also sued Bekardi for civil assault and battery and intentional infliction of emotional distress.

Kassab moved to dismiss Yeske's breach of fiduciary duty claim on the grounds that it had no basis in law. See Tex. R. Civ. P. 91a. On September 27, 2013, the trial court granted Kassab's motion after an oral hearing and awarded Kassab $700.00 in attorney's fees. After that, Yeske non-suited without prejudice his breach of fiduciary duty claims against Bekardi and Garney. Kassab then filed special exceptions to Yeske's first amended petition. The trial court granted Kassab's special exceptions on December 17, 2013, and ordered Yeske to amend his pleadings to remove any reference to "breach of fiduciary duty" and to specifically identify each allegedly defamatory statement made by Kassab.

Yeske filed a second amended petition on December 20, 2013. Ten days later, on December 30, an assumed name certificate was filed by PDA HOA 5801 Winsome notifying the Texas Secretary of State that the company was conducting business under the assumed name "Piazza Del Arte Homeowners Association."

In April 2014, the defendants filed a document titled, "Joint Traditional and No–Evidence Motions for Summary Judgment, Request for Attorney's Fees and Motion for Sanctions" and attached evidence in support of the motions. The defendants prefaced their motions with the statement that Yeske had mistakenly sued Piazza Del Arte, Inc., an entity that was "no longer valid," rather than the correct entity, PDA HOA 5801 Winsome, the "entity that is in good standing and managing the subject Homeowners Association."

In their joint summary judgment motions, the defendants sought no-evidence summary judgment on Yeske's claims for declaratory judgment, negligence and gross negligence, defamation, misappropriation of funds, wrongful foreclosure, and "other wrongdoing," as well as Yeske's claims against Bekardi for civil assault and battery and intentional infliction of emotional distress. The defendants sought traditional summary judgment on Yeske's negligence and gross negligence claims on the grounds that the defendants did not owe Yeske any duties as a matter of law and therefore Yeske lacked standing to bring these claims against them. The defendants further asserted that they were entitled to traditional summary judgment on Yeske's defamation claims because; (1) Yeske could not identify one slanderous comment made by Kassab; (2) the claims were barred by the statute of limitations; (3) the allegedly defamatory statements were either not defamatory as a matter of law or were true or substantially true; and (4) a qualified privilege existed as to Kassab's statements in carrying out his duties on the Board and Yeske had no evidence that Kassab acted with malice. Finally, the defendants sought traditional summary judgment on Yeske's declaratory judgment action on the grounds that PDA HOA 5801 Winsome d/b/a Piazza Del Arte Homeowners Association is the entity operating the Association and was organized lawfully and remains "in good status" with the Texas Secretary of State. Only Kassab sought sanctions against Yeske.

Yeske moved for a continuance of the hearing on the defendants' motions, which the trial court granted. Shortly after that, the motions were set for submission on July 14. On July 7, Yeske filed a response to the motions with supporting evidence. The hearing on the defendants' motions was later reset for September 19.

On September 12, Yeske filed a supplemental response and additional evidence. Yeske asserts that he also filed a third amended petition that same day, but the file-stamped copy in the record shows that the third amended petition was filed on September 15. In the third amended petition, Yeske added allegations that the defendants' failure to properly incorporate the Association and take other actions constituted a violation of the Texas Uniform Condominium Act (the "Act" or "TUCA"). On September 16, the defendants moved to strike Yeske's supplemental response and third amended petitions.

On September 30, the trial court signed an interlocutory order granting only the defendants' no-evidence motion for summary judgment on Yeske's defamation claims. The trial court also recessed the hearing on the summary judgment motions and ordered the parties to participate in a mediation regarding the remaining claims "before the Court rules on the remaining claims and rest of Defendants['] Motions heard on September 19, 2014."

On October 24, counterclaims were filed against Yeske by "PDA HOA 5801 Winsome d/b/a Piazza Del Arte Homeowners Association (improperly named in this lawsuit as Piazza Del Arte, Inc.)" and Garney. The counter-plaintiffs asserted claims for breach of contract, quantum meruit, and slander of title, and also sought temporary and permanent injunctive relief against Yeske.

Yeske filed objections and a response to the counterclaims, as well as an answer. Among other things, Yeske asserted that PDA HOA 5801 Winsome was a third-party intervenor, and not a counter-plaintiff as represented.²

In November, the defendants' remaining summary judgment claims were set for submission on December 1, 2014, along with the defendants' motion to strike Yeske's third amended petition.

On December 1, 2014, the trial court signed an "Order Granting Final Summary Judgment" in which the court granted the defendants' traditional and no-evidence motions for summary judgment "in their entirety." In the order, the trial court did not identify the specific grounds on which each claim was disposed, but ruled that Yeske take nothing against the defendants "by reason of his various causes of action" asserted against them. The court also ordered Yeske to pay the defendants $7,500.00 in reasonable and necessary attorney's fees and expenses...