Long Island Village Owners Association, Inc. v. Maurice O. Berry ( 2015 )

ACCEPTED
13-14-00363-CV
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
2/10/2015 1:23:55 PM
DORIAN RAMIREZ
CLERK
CASE NO. 13-14-00363-CV
IN THE THIRTEENTH COURT OF APPEALS
STATE OF TEXAS FILED IN
13th COURT OF APPEALS
CORPUS CHRISTI/EDINBURG, TEXAS
LONG ISLAND VILLAGE 2/10/2015 1:23:55 PM
OWNERS DORIAN E. RAMIREZ
Clerk
ASSOCIATION, INC., ET. AL,
Appellants,
v.
MAURICE O. BERRY,
Appellee.
APPELLEE'S BRIEF
On Appeal from Cause No. 2011-DCL-1306
In the 107th Judicial District Court
Cameron County, Texas
Respectfully submitted,
THE LEFLER LAW FIRM
501 South Austin Avenue, Suite 1245
Georgetown, Texas 78626
T (512) 863-5658
F (866) 583-7294
/s/ Sandra M. Lefler
SANDRA M. LEFLER
Texas State Bar No. 12161040
slefler@leflerlegal.com
LEAD COUNSEL FOR APPELLEE
NO ORAL ARGUMENT REQUIRED
TABLE OF CONTENTS
STATEMENT OF THE CASE 1
BERRY'S STATEMENT REGARDING ORAL ARGUMENT 2
STATEMENT OF FACTS 3
SUMMARY OF THE ARGUMENT 16
ARGUMENTS AND AUTHORITIES 18
I. ASSOCIATION'S MOTION FOR DIRECTED VERDICT
WAS PROPERLY DENIED. ON REVIEW THIS COURT
CAN ONLY CONSIDER THE GROUNDS FOR DIRECTED
VERDICT ASSERTED BY ASSOCIATION IN THE TRIAL
COURT, AND MUST DISREGARD THE EXTRANEOUS
ARGUMENT CONTAINED IN ASSOCIATION'S BRIEF
18
II. ASSOCIATION'S MOTIONS FOR JUDGMENT
NOTWITHSTANDING THE VERDICT AND FOR NEW
TRIAL WERE ALSO PROPERLY DENIED 29
A. Appellant Has Waived Its Right to Appeal the Jury's Award to
Berry for the Cost to Repair His Sailboat 29
B. Evidence of the Decrease in the Value of Berry's Residence was
Properly Admissible and Considered by the Jury 45
C. Berry Properly Established the Value of the Loss of Use and
Enjoyment of his Property. 48
D. Berry's Testimony In Support of his Mental Anguish Claim
Satisfies the Texas Requirements for Recovery of Such Damages
49
III. BERRY AS A PROPERTY OWNER HAD STANDING TO SUE
52
IV. ATTORNEY FEES WERE PROPERLY AWARDED GIVEN THE
INEXTRICABLE NATURE IN WHICH THE CLAIMS WERE
INTERTWINED. BERRY CONCEDES THAT IF THIS COURT
DISAGREES, THE CASE SHOULD BE REMANDED FOR
FURTHER EVIDENCE REGARDING THE PERCENTAGE O
TIME BERRY'S COUNSEL DEVOTED TO EACH CLAIM
ASSERTED 53
V. THE EVIDENCE SUPPORTED THE COURT'S DECLARATORY
JUDGMENT THAT THE ASSOCIATION HAS A DUTY TO DREDGE
THE CANALS TO FIVE (5) FEET BELOW MEAN TIDE. 58
VI. CONCLUSION 59
VIL PROOF OF SERVICE 61
VIII. CERTIFICATE OF COMPLIANCE
IX. APPENDIX 63
ii
INDEX OF AUTHORITIES
CASE CITATIONS:
Abdelnour v. Mid Nat'l Holdings, Inc.,
190 S.W.3d 237 (Tex. App. —Houston [1St Dist.]
2006, no pet.) 23, 46, 48
Adams v. Rowles,
228 S.W.2d 849 (Tex. 1950) 28
Apolinar v. State,
155 S.W.3d 184 (Tex. Crim. App. 2005) 29
Badger v. Symon,
661 S.W.2d 163 (Tex. App. Houston lst Dist. 1983, writ st red n.r.e )
33, 40
Bavarian Auto Haus, Inc. v. Holland,
570 S.W.2d 110 (Tex. Civ. App. — Houston [15t] 1978, no writ) 46
Batra v. Clark,
110 S.W.3d 126 (Tex. App. —Houston [15t Dist.] 2003, no pet. 18
Boyer v. Scruggs,
806 S.W.2d 941 (Tex. App.—Corpus Christi 1991, no writ) 32
Boyles v. Ken,
885 S.W.2d 593 (Tex. 1993) 51
Brooks v. Northglen Association,
141 S.W.3d 158 (Tex. 2004) 52
Brown v. Dale,
395 S.W.2d 677 (Tex.Civ.App. -- Amarillo 1965, writ ref d n.r.e.) 33
Chapman v. State,
150 S.W.3d 809 (Tex. App.—Houston [14th Dist.] 2004, pet. refd) 45
City of Keller v.
168 S.W.3d 813 (Tex. 2005) 24
City of Tyler v. Likes,
962 S.W.2d 489 (Tex. 1997) 51
Cleveland Reg'l Med. Ctr., L.P. v. Celtic Properties, L.C.,
323 S.W.3d 322 (Tex. App. — Beaumont 2010, pet. filed) 18
Coleman v. Gournet,
59 S.W.2d 550 (Tex. App. — Houston [14th] 1993, writ dismissed) 47
Columbia Engineering International v. Dorman,
602 S.W.2d 72 (Tex.Civ.App. -- Beaumont 1980, writ refd n.r.e.) 33
Cooper v. Lyon Fin. Servs., Inc.,
65 S.W.3d 197 (Tex. App. — Houston [14th Dist.] 2001, no pet. 18, 19
iii
Cooper v. Tex. Gulf Indus., Inc.,
513 S.W.2d 200, 204 (Tex. 1974) 53
Craig v. Allen,
556 S.W.2d 644 (Tex.Civ.App. -- Tyler 1977, writ refd n.r.e.) 33
Ford Motor Company v. Ezequiel Castillo, et al.,
444 S.W.3d 616 (Tex. 2014) 24
Gulf, C. & S.F. Ry. Co. v. Cusenberty,
26 S.W. 43, 45 (1894) 52
Gulf State Utils. Co. v. Low,
79 S.W.3d 561, 567 (Tex. 2002) 54
Haynes, & Boone, L.L.P. v. Chason,
81 S.W.3d 307, 309 (Tex. App. — Tyler 2001, pet. denied) 18
In re Price's Estate,
375 S.W.2d 900, 904 (Tex. 1964) 21
Izen v. Comm'n for Lawyer Discipline,
322 S.W.3d 308, 322 (Tex. App. Houston [1st Dist.]
2010, pet. denied) 23, 46, 48
Jones v. Smith,
157 S.W.3d 517 (Tx. Ct. App. — Texarkana 2005) 53
Kollision King v. Calderon,
968 S.W.2d 20 (Tex. App. — Corpus Christi 1998, no pet.) 49
Latham v. Castillo,
972 S.W.2d 66, 70 (Tex. 1998) 50
Parkway Company v. Woodruff,
901 S.W.2d 434, 444 (Tex. 1995) 50
Precheck, Inc. v. Quick Check Records, Inc.,
2014 Tex. App. LEXIS 6863 (June 26, 2014) 31
Raman v. Chandler Properties, L.C. v. Caldwell 's Creek Homeowner's
Association,
178 S.W.3d 384, 394 (Tex. App. — Ft. Worth, 2005) 27, 28
Slayden v. Pahno,
108 Tex. 413, 194 S.W. 1103 (1917) 33
St. Elizabeth Hosp. v. Garrard,
730 S.W.2d 649, 650 (Tex. 1987) 51
Stewart Title Co. v. Sterling,
822 S.W.2d 1, 11, 12 (Tex. 1991) 54, 55, 56
Tesoro Petroleum Corp. v. Nabors Drilling USA, Inc.,
106 S.W.3d 118, 128 (Tex. App. — Houston [1st Dist.]
2002, pet. denied) 23, 46, 48
iv
Tony Gullo Motors I, L.P. v. Chapa,
212 S.W.3d 299 (Tex. 2006) 54, 55, 56, 57
Vasquez v. State,
2008 Tex. App. LEXIS 2952 (Tex. App. Corpus Christi Apr. 24, 2008)
43, 44
STATUTES AND OTHER AUTHORITIES:
'of
Tex. Bus. & Com. Code §§17.01, et seq.
Tex. Civ. Prac & Rem Code §37.006(a), §39 53
Tex. Civ. Prac & Rem Code §38.001(8) 54
Texas Local Government Code §212.004(a), §212.004(d), §212.045 27
Texas Rules of Appellate Procedure, Rule 33.1(a) 32
Texas Rules of Appellate Procedure, Rule 38.1 (i) 16, 23, 30, 31, 45
Texas Rules of Evidence - Rule 103 (a) (1) 32
Texas Rules of Evidence - Rule 103 (a) (2) 40
Texas Rules of Evidence - Rule 802 43, 44
Texas Rules of Evidence - Rule 803 30
TABLE OF CONTENTS
STATEMENT OF THE CASE
BERRY'S STATEMENT REGARDING ORAL ARGUMENT 2
STATEMENT OF FACTS 3
SUMMARY OF THE ARGUMENT 16
ARGUMENTS AND AUTHORITIES 18
I. ASSOCIATION'S MOTION FOR DIRECTED VERDICT
WAS PROPERLY DENIED. ON REVIEW THIS COURT
CAN ONLY CONSIDER THE GROUNDS FOR DIRECTED
VERDICT ASSERTED BY ASSOCIATION IN THE TRIAL
COURT, AND MUST DISREGARD THE EXTRANEOUS
ARGUMENT CONTAINED IN ASSOCIATION'S BRIEF
18
IL ASSOCIATION'S MOTIONS FOR JUDGMENT
NOTWITHSTANDING THE VERDICT AND FOR NEW
TRIAL WERE ALSO PROPERLY DENIED 29
A. Appellant Has Waived Its Right to Appeal the Jury's Award to
Berry for the Cost to Repair His Sailboat 29
B. Evidence of the Decrease in the Value of Berry's Residence was
Properly Admissible and Considered by the Jury 45
C. Berry Properly Established the Value of the Loss of Use and
Enjoyment of his Property. 48
D. Berry's Testimony In Support of his Mental Anguish Claim
Satisfies the Texas Requirements for Recovery of Such Damages
49
III. BERRY AS A PROPERTY OWNER HAD STANDING TO SUE
52
IV. ATTORNEY FEES WERE PROPERLY AWARDED GIVEN THE
INEXTRICABLE NATURE IN WHICH THE CLAIMS WERE
INTERTWINED. BERRY CONCEDES THAT IF THIS COURT
DISAGREES, THE CASE SHOULD BE REMANDED FOR
FURTHER EVIDENCE REGARDING THE PERCENTAGE OF
TIME BERRY'S COUNSEL DEVOTED TO EACH CLAIM
ASSERTED 53
V. THE EVIDENCE SUPPORTED THE COURT'S DECLARATORY
JUDGMENT THAT THE ASSOCIATION HAS A DUTY TO DREDGE
THE CANALS TO FIVE (5) FEET BELOW MEAN TIDE. 58
VI. CONCLUSION 59
VU. PROOF OF SERVICE 61
VIII. CERTIFICATE OF COMPLIANCE 62
IX. APPENDIX 63
ii
STATEMENT OF THE CASE
I. Nature of the Case. Maurice 0. "MO" Beny filed suit against
Association for breach of contract, negligence, defamation, and violations of the
Deceptive Trade Practices act ("DTPA"), Tex. Bus. & Corn. Code §§17.01, et seq.
Beny sought damages of $300,000.00 and declaratory and injunctive relief. (R.R.
453-465).
2. Course of Proceedings. This is an appeal from a final judgment
following a jury trial. (Appints' App. Tab A).
3. Trial Court's Disposition. Following a trial on the merits to a jury,
the trial court denied Association's motion for a directed verdict. The jury charge
issued on the breach of contract, negligence, and defamation causes of action only.
(Appints' App. Tab B). The M PA and fraud claims were dismissed on directed
verdict. The jury issued its verdict for Berry for breach of contract and negligence,
and the trial court denied Association's motion for judgment notwithstanding the
verdict. (Appints' App. Tab B). On April 3, 2014, the trial court entered judgment
on the verdict, granted Berry's request for declaratory judgment in part, and
awarded Belly his attorney's fees. (Appints' App. Tab A). The trial court denied
Association's May 2, 2014 motion for new trial on June 5, 2014. (R.R.561).
4. Appellate Proceedings. Associations perfected their appeal to this
Court on July 1, 2014.
BERRY'S STATEMENT REGARDING ORAL ARGUMENT
No oral argument is necessary in this case. The suit involves common law
claims of breach of contract, negligence, declaratory judgment, and Beny's award
of attorney fees. The issues raised by Association require this Court to determine
(a) whether the jury's verdict was properly entered by the trial court, (b) whether
the trial court properly denied Association's motions for dismissal for lack of
standing, directed verdict, judgment notwithstanding the verdict, and for new trial;
and (b) whether the trial court properly awarded Berry the declaratory relief he
sought. These issues are all adequately addressed through written submission. It is
difficult to see any benefit to be derived from oral argument on such a basic case.
Contrary to Association's Statement, no public interests or policies are at
issue in this case nor would public policy or public interests be furthered by this
case. This is a private action by a private residential property owner against the
homeowner's association where the property owner resided for claims arising from
failure to maintain the premises.
2
STATEMENT OF FACTS
I. Introduction: Association's Statement of Facts is Deficient
Association's Statement of Facts omits several material facts presented in
the evidence at trial upon which the jury reached its decision in favor of Berry. In
other instances, Association emphasizes facts that are irrelevant to a determination
of the issues before the Court. Sometimes, Association even fails to accurately
state the facts as presented in the Record.
Berry provides the following comprehensive Statement of Facts, adopting in
regular text any factual allegation of Association with which Berry agrees.
Additional facts provided by Betty are set forth in bold italics. And all
inaccuracies in Association's factual statements are identified and underscored, all
as next set forth.
II. Berry's Comprehensive Statement of Relevant Facts
I. This case concerns the maintenance of the limited common elements of a
bayfront condominium development known as Long Island Village; specifically,
the maintenance of a canal by the homeowners association, Long Island Village
Owners Association (the "Association) (I R.R. 6-17). The Port Isabel, Texas
development has 1,024 units, of which approximately 58 percent are situated on
one of seven canals referred to by the letters A through G (IV R.R. at 14:20-25,
182:6-7) (V R.R. 41:15-21, 138:4-15). [See Appints' Stint/Facts p. 1,111]
3
2. In 2004, Berry MO. "Mo" Berry ("Berry') began looking for boats and
places where he could have a big boat. (III R.R. 54:21-25; 55:1-2). A realtor in
Brownsville brought Berry to Long Island Village to look at properties. (III R.R.
56:2-6)(III R.R. 58:1-12; 59:23-25),
3. After that, from 2004 until early 2005, Berry went to Long Island Village
on three different occasions to look at properties by himself (III R.R. 58:13-20).
He would spend a couple of weeks at a time going through Long Island Village,
talking to owners, meeting with builders, and trying to look for property. (III
R.R. 60:4-9).
4. Berry specifically spoke with people at Long Island Village about the
canals and the canal system. (III R.R. 60:15-17). He met with two different
builders who lived in Long Island Village, spending a day with each one of them.
(III R.R. 60:17-25) They took Berry down to the canals and showed him what
things look like when the canals are not properly maintained and how the
corners filled up with sand. (III R.R. 61:1-4).
5. The builders also told Berry how he could get the plats of the subdivision
from the management company. (III R.R. 61:4-6), The plats showed the
original depths of the canals, all the property lines and their orientation to north,
south, east, and west The plat also showed how much waterfront property each
lot had where you could put a dock and the size and how far out you could go
4
into the canal and not be encroaching on someone else coining into the canal.
(III R.R. 61:11-19). For these reasons, the plats were very useful to Berry in
trying to make a decision where to buy because not only did they show the
orientation, where lie could put a dock and how midi waterfront property he
had, but they also showed the depth at which the canals were built and the depth
he understood that the canals would be maintained (III R.R. 61:30-36; 62:1).
6. The canals were constructed in 1977 by the original developer of the island,
Outdoor Resorts South Padre Island, Inc. (VI R.R. 14:2-15:3). The property was
subdivided (platted) in 1982. The canals were built to a depth of six-and-one-half
feet at mean low tide, which means the depth would be seven-and-a-half feet at
mean low low water. (III R.R. 62:2-17), and this is reflected in the original 1982
plats. (III R.R. 61:1-62:4) (IV R.R. 109:11-15). These original lots were
leasehold. Long Island Village Owners Association is much later created (sic)
when most owners or occupants had acquired fee interests. (VI R.R. at 15:12-
18)(V111 R.R. 7). lAppints' Stmt of Facts p. 1, ¶ 21.
7. Berry played tennis with a member of the board of directors of the
Association, and another former board member took Berry out on his boat and
showed him the different canals with his depth finder, and showed him what he
knew about the canals in that area. (III R.R. 63:18-25; 64:1-2). These are
5
people he could have asked questions of regarding the canals. (III R.R. 63:18-
25, 64:1-2).
8. Berry also met with the general manager and the facilities manager,
reviewed the plats with them, and discussed what they had been doing in
dredging. They informed Berry that they had a ten-year dredging permit, that
they had just finished dredging in 2004, and that their permit ran through 2010
(III R.R. 65:7-12), although in 2004 the only canal they did not dredge was
Berry's because of the absence of a location to remove the spoils that would
result from dredging that canal (Canal A). (III R.R. 69:7-14).
9. Before actually purchasing a property, Berry made bids on properties at
Long Island Village and advised Long Island Village representatives that he
planned on bringing in a large boat. (III R.R. 72:1-3). Another large boat was
already on Canal C in Long Island Village — a 47-foot Vagabond. (III RI?.
72:4-16). In speaking with the other large boat owner, Berry was told by the
other boat owner that he didn't have any trouble using his boat. (III R.R. 72:18-
19). Berry also played tennis with a woman who had a 40-foot Morgan sailboat
in Long Island Village. (HI R.R. 73:11-13).
10. Berry's whole purpose for purchasing property at Long Island Village was
to go sailing whenever lie wanted to, find people who would sail for 2 to 3 weeks
with him, and sail up and down the Mexican shore. (III R.R. 129:2-14
6
11. Berry received and reviewed a copy of the March 2005 Restatement of
Declaration of Covenants, Conditions and Restrictions prior to purchasing the
property ("Declarations") (III R.R. 63:2-25; 64:3-18; 65:4-18) (Plaintiff's
Exhibit 1). He relied upon the Declarations in making his decision to purchase
property at Long Island Village. (HI R.R. 65:4-7).
12. The Declarations contained an express provision requiring the Association
to maintain the canals as a limited common element in Long Island Village,• a
fact conceded and unopposed by the Association in its Appellant's Brief herein.
(Appellant's Brf, p. 12 ¶ 3) ("... it is undisputed that the 2005 restatement
defines the Associations duties, and . . . reasonably maintaining the canals is
[among the duties]. '9
13. In 2005, Berry bought Lot # 92 on Canal A in the Long Island Village.
(HI R.R. 69:22-23; 70:1). He chose Lot 92 because it was the closest to the
intercoastal waterway. (III R.R. 70:11-15). Before purchasing the lot Beny
reviewed the 1982 plats, and also personally measured the depth of the canals with
plans to purchase a large boat. R.R. 61:1-62:4, 70:25-71:12). Berry knew that
he could not sail directly from Canal A because silt blocked the way; rather, he
would have to sail to Canal C and out from there. (III R.R. 70:9-71:6). He also
knew that the Association had just dredged the canals in 2004, but had not dredged
Canal A because of problems as to where to locate the spoils. (III R.R. 65:7-13,
7
69:7-13). Berry knew that the Association's dredging permit from the United
States Army Corps of Engineers expired in 2010. (III R.R. 65:7-13). [Appints'
Stmt of Facts p. 2, 114].
14. In April 2006, 10 months after purchasing the home, Berry purchased a 40-
foot Beneteau sailing boat with a five-and-a-half foot fixed keel. (III R.R. 75:16-
76:14, 77:8-15)(IV R.R. 21:2-6, 32:20-21). "Right from the beginning" he
encountered difficulty sailing the boat from Canal A. He could only leave the
canal "within four or five hours" of high tide, and even then "[he] was pushing
almost two-and-a-half feet of silt." R.R. 77:8-17). [Appints' Stmt of Facts p.
2, 115].
15. In March 2008 Belly purchased a home in Georgetown, Texas (III R.R.
79:1-3, 80:18-22) (IV R.R. 21:15-19), but the Georgetown home was his
secondary home. His legal home and tax-exempt home was in Long Island
Village and remained so through 2009. (IV R.R. 26:1-3). He remained in Port
Isabel to attend to a business he owned (IV R.R. 27:1-2). Hurricane Dolly
struck Port Isabel several months later on July 8, 2008. Berry moved to
Georgetown between the second quarter of 2008 and the first of 2010. (IV R.R.
25:4-27:2). [Appints' Stmt of Facts p. 3, ¶ 6].
16. On July 5, 2009 Berry made his first written complaint to the Association
regarding their failure to maintain the canals, by email to Patricia Burke, the then-
8
president of the Association's board of directors. (III R.R. 83:14-21 • 90:13-23).
Ms. Burke responded stating that she had forwarded the email to the entire board
of directors [AppInts) Stint of Facts p. 1, 3].and that they would consider
dredging that year; and, if not, if the money didn't allow, they would put it in the
budget for 2010." Ms. Burke stated that "[bJecause this would involve getting
permission from the Corp of Engineers to dredge and permission to locate any
dredging materials off site, the entire board will have to discuss this at our
August meeting" and that "depending upon the cost estimate, such a project may
have to wait until next year to be included in our major improvement projects."
83:14-21, 90:24-91:7). Beny considered Ms. Burke's response, and in
particular the 2010 timetable, to not be unreasonable for a project like that. (III
R.R 91:12-22). [Appints' Stmt of Facts p. 3, ¶ ].
17. Despite the Board's promises and some steps taken to look into dredging,
no dredging ever occurred:
A. In their August 2009 meeting, the board of directors discussed the
2004 dredging, which had been limited in scope, and decided to consider
dredging all of the canals, beginning with a survey to determine the
condition of the canals. (V R.R. 72:3-17). Board member Thomas Bergsma
was placed in charge of producing a report. (V R.R. 76:7-12). 1Appints'
Stmt of Facts p. 3, ¶ 81.
9
B. Also, in August 2009, the board hired a new general manager, Richard
Homer. (V R.R. 156:13-21). [Appints' Stmt of Facts p. 4, ¶ 8].
C. The board met again January 27, 2010, at which a Bergsma-selected
company bid approximately one million dollars for the project, "from survey
to completion." (V R.R. 26:17-27:5, 86:14-87:1, 256:1-5). It became clear to
the board members at this time that the expense of dredging would exceed
the major improvements fund and require a special assessment. (V R.R.
138:16-139:6, 159:18- 160:9). [Appints' Stmt of Facts p. 4, ¶ 9].Despite
the fact that special assessments had been instituted previously by Long
Island Village to the homeowners, (III R.R. 67:23-25, 68:1-12), here no
special assessment ever issued regarding dredging and a motion was made
and carried to table the dredging issue until the annual meeting of the owners
in March. (V R.R. 78:4-79:8, 86:14-87:1). [Appints' Stmt of Facts p. 4, ¶ 9].
D. The board did discuss obtaining an extension of the Association's
dredging permit, then set to expire in December 2010. (V R.R. 76:13-77:8).
Ms. Burke tasked Richard Homer with obtaining the extension, describing it
as "very important," to obtain the extension "as soon as possible." (V R.R.
160:3-15). Mr. Homer made his first request for an extension on February
23, 2010. (V R.R. 159:22-25). [Appints' Stmt of Facts p. 4, ¶ 9].The
request for an extension was rejected because the Board did not have an
10
approved site for the spoils. (V R.R. 83:16-18). As a result, the permit
expired without a renewal. (V R.R. 84:16-17).
E. After Beriy gave a presentation at the March meeting of the
Association's members, the dredging proposal was voted down by a show of
hands. (V R.R. 80:13-19, 81:25-82:2). 588 members were present; 66 more
than needed for a quorum. (V R.R. 120:19-121:1). [Appints' Stmt of Facts
p. 4, ¶ 10].However, the Board spoke with the owners at the meeting and
determined that the owners did not have enough information regarding
the dredging situation. "A lot of them just voted one way or the other.
And it was — it wasn't clear to them, to the board felt they needed to go
further and get more information." (V R.R. 82:12-18). The Board could
not give them a cost, and that was one of the first things they wanted to
know. (V R.R. 82:20-21).
F. Going forward, the dredging issue was discussed at almost all—at
least 75 percent of the meetings of the board. (V R.R. 86:5-8, 98:1-10).
[Appints' Stint of Facts p. 5, ¶ 11].But no dredging ever occurred.
G. The Corps of Engineers required that an application for a new
dredging permit be submitted. (V R.R. 84:5-85:22, 88:24-89:14, 90:12-92:2,
175:7-24). Submitting a new application is a tedious process that cannot be
quickly or inexpensively done (V R.R. 176:13-177:12). Mr. Homer testified
11
at length and in detail as to his obtaining a new permit for the Association;
which, as with the application for an extension, was complicated by the need
to find an environmentally-sound location for the spoils (or, more
expensively, barge them), and by various bureaucratic snafus. (V R.R.
90:12-92:2, 159:22-236:2). Though the board quickly approved a survey,
which was conducted in August 2011, it was not until April 2013 that the
Corps granted the Association a new permit to dredge the canals. (V R.R.
181:22-182:5, 227:16). [Appints' Stmt of Facts p. 5, ¶ 11].
H, In November 2013 the board produced a final scope of work and
solicited final bids. (V R.R. 231:20-24). Finally, in January 2014, the board
approved an $832,000 bid to dredge the canals but only to a depth of five
feet (V R.R. 232:9-234:2), not the six and one-half feet necessary for Berry
to move his boat through the canals. [Appints' Stmt of Facts p. 5,1111].
18. Meanwhile, on February 22, 2011, Berry brought the underlying suit against
the Association asserting, among others, breach of contract and negligence causes
of action, for failure to maintain the canals to a depth of six-and-a-half feet.
Berry's deed was not offered in evidence at trial (IV R.R. 109:25-110:24),
[Appints' Stmt of Facts p. 6, ¶ 12], although his ownership of Lot # 92 on Canal
A in Long Island Village was undisputed. The Association's declarations of
covenants and by-laws failed to reference, ratify, or adopt the 1977 or 1982 plats
12
(V R.R. 93:25-94:15) (Declaration, P's Exit. 1, VIII R.R. 6-47), although the
Declarations did not expressly contradict them in any respect either
(Declaration, P's Exh. 1, VIII R.R. 6-47). The Declarations require that the
Association maintain the canals as part of the common elements, but fail to
specify the time, frequency, or depth of the dredging. (III R.R. 69:10-24) (V R.R.
93:6-14) (VIII R.R. 6-47). [Appints' Stmt of Facts p. 6, ¶ 12].
19. At trial Berry claimed damages for repairs to his boat, offering as proof two
unproven repair estimates admitted over the Association's hearsay and business
records objections. R.R. 115:16-127:5). [Appints' Stmt of Facts p. 6, ¶ 13].
20. Berry testified as to the loss of use of his boat, based on the cost of
chartering a similar vessel. His testimony established that the cost of chartering a
boat can be $900 per day without a captain. (HI R.R. 127:14-17). Berry also
offered, over the Association's objection, his opinion that his home had diminished
in value by approximately $10,000 as a result of "the lack of dredging." (III R.R.
129:14-131:9). Finally, Berry testified that he suffered mental anguish as a result
of the diminishment of his home's value, which he described as:
A. Causing him a lot of anguish;
B. Suffering heart angina, having to be treated for angina, and still being
treated for it;
13
C. Treatment for depression, and still being treated for it, and a
worsening of pre-existing depression "over the years" requiring a change
of his medication (III R.R. 131:10-132:22). No expert or other testimony
was offered to substantiate Berry's damages. (III. R.R.115:16-134:2), but as
a matter of law in Texas no such expert testimony was required.
[Appints' Stmt of Facts p. 6, ¶ 131.
21. At the close of evidence the Association moved for a directed verdict on
each of Berry's claim which was denied as to the breach of contract, negligence,
defamation, and declaratory judgment claims. (V R.R. 44-56). On February 10,
2014, the jury returned a verdict upon the competition of a trial on the merits. (C.R.
469-484). The jury found that the Association had breached the declarations by
"failing to dredge the canals." (C.R. 474). The jury also found that the Association
acted negligently, and that such negligence proximately caused Berry harm. (C.R.
474). The jury awarded Berry $17,000 for damage to his sailboat; $5,000 for the
decrease in the value of his home; $75,000 for loss of use; and $50,000 for mental
anguish. (C.R. 476). Defendant moved for judgment notwithstanding the verdict,
and for a new trial, both of which were denied. (C.R. 510-518, 556-561). Final
judgment on the jury's verdict was entered on April 3, 2014, and included a
declaratory judgment that the Association shall dredge Canal A to a depth of five
feet below mean sea level, and also an award of attorney's fees in the amount of
14
$75,900 (and $7,500 in the event of an appeal, and an addition $5,000 in the event
of an appeal to the Supreme Court of Texas). (C.R. 523-550). [Appints' Stint of
Facts p. 7, ¶ 14].
15
SUMMARY OF THE ARGUMENT
I. The Association's motion for directed verdict was properly denied.
On review, this Court can only consider the grounds for directed
verdict asserted by the Association in the trial court, and must
disregard the extraneous argument contained in the Association's
brief.
II. The Association's motions for judgment notwithstanding the
verdict and motion for new trial were also properly denied.
A. Appellant has waived its right to appeal the jury's award to
Berry for the Cost to Repair his sail boat.
1. The Association failed to comply with Tex. R. App.
P. 38. 1 (i)
2. Appellant failed to preserve the alleged errors.
a. The Association did not timely object to Beny's
exhibits and testimony.
b. Any error by admitting Berry's Exhibits 4 and 5 was
harmless because the exhibits were cumulative of
Beny's oral testimony to which the Association did
not object.
B. Evidence of the decrease in the value of Beny's residence was
properly admissible and considered by the jury.
C. Berry properly established the value of the loss of use and
enjoyment of his property.
D. Berry's testimony in support of his mental anguish claim
satisfies the Texas requirements for recovery of such damages.
III. Berry as a property owner had standing to sue.
16
IV. Attorney fees were properly awarded to Berry's counsel, given the
inextricable nature in which the claims were intertwined. Berry
concedes this if this Court disagrees, the case should be remanded
for further evidence regarding the percentage of time Berry's
counsel devoted to each claim asserted.
V. The evidence supported the Court's declaratory judgment requiring
the Association to dredge the canals to five (5) feet below mean
tide.
17
ARGUMENTS AND AUTHORITIES
I. ASSOCIATION'S MOTION FOR DIRECTED VERDICT WAS
PROPERLY DENIED. ON REVIEW THIS COURT CAN
ONLY CONSIDER THE GROUNDS FOR DIRECTED
VERDICT ASSERTED BY ASSOCIATION IN THE TRIAL
COURT, AND MUST DISREGARD THE EXTRANEOUS
ARGUMENT CONTAINED IN ASSOCIATION'S BRIEF
1. Association's first argument is that the trial court erred in failing to grant
Association's motion for directed verdict on Berry's breach of contract and negligence
claims. Association was the defendant in the trial court below. Nowhere does
Association provide this Court with the legal authorities setting forth the standard upon
which its review should be conducted, opting instead to make the global remark that the
Court's denial of the directed verdict was "against the great weight and preponderance of
the evidence." Berry first provides the Court with the applicable standard of review.
2. A directed verdict in favor of a defendant may be proper when (1) a
plaintiff fails to present evidence raising a fact issue essential to the plaintiffs right of
recovery, or (2) the plaintiff admits or the evidence conclusively establishes a defense to
the plaintiffs cause of action. A challenge to the denial of a directed verdict is, in
essence, a challenge to the legal sufficiency of the evidence. Cleveland Regl Med. Cir.,
L.P. v. Celtic Properties, L.C., 323 S.W.3d 322, 346 (Tex. App. -- Beaumont 2010, pet.
filed); Haynes, & Boone, L.L.P. v. Chason, 81 S.W.3d 307, 309 (Tex. App.—Tyler 2001,
pet. denied). In reviewing a trial court's denial of a motion for directed verdict, the court
on appeal is limited to the specific grounds stated in the motion, Balm v. Clark, 110
S.W.3d 126, 128 (Tex. App.—Houston [1st Dist.] 2003, no pet.); Cooper v. Lyon Fin.
18
Servs:, Inc., 65 S.W.3d 197, 207 (Tex, App.—Houston [14th Dist.] 2001, no pet.).
3. In the instant case, the Association made an oral motion for directed verdict
upon the close of Beny's evidence; and, upon the close of the Association's evidence the
Association reasserted that motion together with a motion for directed verdict on Beny's
negligence claim. These motions for directed verdict were denied. Limiting this Court's
review to the specific grounds asserted by the Association at trial, we see that much of
the argument asserted in Association's Brief before this Court must be ignored as it far•
exceeds the limited grounds raised by Association before the trial court. The Record
before the trial court shows the following limited argument:
On Berry's Breach of Contract Claim:
"MR. RENE OLIVEIRA Jr.: At this time, Your Honor, we would move
for a directed verdict on all claims. To go through individually, Your Honor, on
the breach of contract claim, Your Honor, the only contract we have in this case is
the declaration and the bylaws.
We have admitted that the declaration states that we have a duty to maintain
the canals. But there is nothing in the declaration that says the canals have to be
dredged at certain times, in a certain manner, to a certain depth, at a certain
frequency. There's nothing in those documents that say that.
And those are the only — the only contracts we have in this case. So since
we've — there's been no breach of those contracts, Your Honor, we move for
directed verdict on the breach of contract claim.
THE COURT: All right. That'll be denied.
[V R.R. 48:14 — 49:4]
***
"MR. RENE OLIVEIRA JR.: We are asking for a directed verdict on the
claim for breach of contract as well, Your Honor, simply because there's nothing
19
in the declaration that says we have to dredge to a specific depth or at a specific
time.
THE COURT: That'll be denied. . . ."
[VI R.R. 11E5-10].
Thus, the only grounds raised for directed verdict as to breach of contract was that while
the Declarations themselves, by the Association's own admission, obligated the
Association to reasonably maintain the canals, the Association argues that this contract
did not specify the depth for maintaining the canals, and that Berry's "only evidence" that
the Association had a duty to maintain the canals "was the original plat from the Long
Island Village area showing that the canals were originally dug . . . to a depth of six-and-
a-half-feet." (Apples Brief, p. 11, ¶ 1). This is a gross understatement of the evidence
at trial.
4. Looking at the evidence before the trial court, we see that both sides
presented evidence on the issue of contractual obligations regarding maintenance of the
canal. As acknowledged by the association, Beny offered proof including not only the
Declarations (Declarations, P's Exh. 1, VIII R.R. 4), but also testimony as to the original
Plat of the subdivision that identified the canals and showed their depth as six-and-one-
half feet. (III R.R. 61:4-6, 61:9-25, 62:1-24). In addition, Berry introduced evidence
(consistent with the Declaration's obligation for the Association to maintain the canals
and the Plat's indication of the canal depth) that the Association's Board members
assured Beny that the Association was operating under a current dredging permit issued
by the Corp of Engineers who oversaw and regulated the dredging, and that the permit
20
was good through 2010. (HI R.R. 65:7-12). Other evidence further confirming the
contractual obligation of the Association included Beny's consultations with an
Association Board member who took Berry out on his own boat and showed Berry
different canals in that area. (III R.R. 63:18-25; 64:1-2). He met with the general
manager and the facilities manager, reviewed the plats with them, and discussed what
they had been doing in dredging. They informed Berry that they had a ten-year dredging
permit, that they had just finished dredging in 2004 and their permit ran through 2010 (III
R.R. 65:7-12). Berry informed Long Island Village representatives that lie planned on
bringing in a large boat. (III R.R. 72:1-3). He observed other large boats already on
Canal C in Long Island Village — a 47-foot Vagabond. (III R.R. 72:4-16). Berry spoke
with another large boat owner who told him he didn't have any trouble using his boat.
(III R.R. 72:18-19). Berry played tennis with a woman who had a 40-foot Morgan
sailboat in Long Island Village, making Berry aware of yet another large boat in the
Village. (III R.R. 73:11-13). Despite the Association's appellate arguments to the
contrary, there is no question that the jury was presented with substantial evidence
supporting the contractual provisions and the actual confirmation of those provisions in
practice.
5. Where a controverted issue of material fact exists, a directed verdict is not
appropriate. See In re Price's Estate, 375 S.W.2d 900, 904 (Tex. 1964). Thus,
confronted with the evidence presented by both sides regarding the duties and obligations
of the Association with respect to the canal maintenance, the Court did the only thing it
could do under the law and allow the issue to go to the ultimate fact finder: The Jury.
21
The jury was then free to weigh the evidence and obviously came to its conclusion
in favor of Belly.
6. As to the denial of directed verdict on the negligence claim, the
Association's sole anemic argument before the trial court was that this is strictly a
breach of contract case, not one arising in negligence:
On Berry's Negligence Claim:
"MR. RENE OLIVEIRA JR.: We also would like to move for
directed verdict at this time, Your Honor, on the claim for negligence. We
believe that this is clearly a case of, you know, what was [sic] our duties
under the declaration. It's a breach of contract case.
So — and, Your Honor, you've heard all the efforts that we've made,
and really all the evidence in this case has been about whether we met our
duties under the agreements.
So we believe that that's the question that should go to the jury
because it's not a negligence case, and we're asking for a directed verdict on
the claim for negligence.
"THE COURT: It'll be denied."
[VI R.R. 110:15 — 111:3] Frankly, the Association provided no argument
whatsoever to the trial court in support of this issue. Therefore, this Court must
ignore all additional arguments set forth in the Association's brief on appeal
because they fall outside the scope of the limited argument presented to the trial
court. This leaves the Association with merely the above conclusory statements
presented to the trial court without any factual support or support of legal
authorities. This is inadequate to preserve this issue for this Court's consideration.
22
Under Rule 38.1(i) of the Texas Rules of Appellate Procedure: A brief must
contain clear and concise argument, with appropriate citations to authorities and
the record. Without more, the Association has thereby waived the issue. "Rule 38
requires [a party] to provide us with such discussion of the facts and the
authorities relied upon as may be requisite to maintain the point at issue." Tesoro
Petroleum Corp. v. Nabors Drilling USA, Inc., 106 S.W.3d 118, 128 (Tex. App.—
Houston [1st Dist.] 2002, pet. denied). "This is not done by merely uttering brief
conclusory statements, unsupported by legal citations." Id. "Issues on appeal
are waived if an appellant fails to support his contention by citations to appropriate
authority . . . ." Abdelnour v. Mid Nat'l Holdings, Inc., 190 S.W.3d 237, 241 (Tex.
App. Houston [1st Dist.] 2006, no pet.). Similarly, as this Court is well aware,
appellate issues are waived when the brief fails to contain a clear argument for the
contentions made, Izen v. Comm 'n for Lawyer Discipline, 322 S.W.3d 308, 322
(Tex. App.—Houston [1st Dist.] 2010, pet. denied). Therefore, Association's
argument as to directed verdict on the negligence claims must be denied.
7. The Association goes on to argue that the evidence was not sufficient
to support the jury's verdict and that directed verdict should have been awarded.
As established by the Texas Supreme Court:
"A legal sufficiency challenge will be sustained when the
record confirms either: (a) a complete absence of a vital fact; (b) the
23
court is barred by rules of law or of evidence from giving weight to
only the evidence offered to prove a vital fact; (e) the evidence offered
to prove a vital fact is no more than a mere scintilla; or (d) the
evidence conclusively establishes the opposite of the vital fact. City
of Keller v. Wilson, 168 S.W.3d 819 (Tex. 2005)."
Ford Motor Company v. Ezequiel Castillo, et al., 444 S.W.3d 616 (Tex. 2014). In
a legal sufficiency review, the appellate court must view the evidence in the light
most favorable to the verdict. Id. at 620 (citing Keller at 822). When reviewing all
of the evidence in the light favorable to the verdict, "courts must assume jurors
made all inferences in favor of their verdict if reasonable minds could, and
disregard all other inferences in their legal sufficiency review." Id. at 620-621
(citing Keller at 8.24 When reviewing circumstantial evidence that favors the
verdict, we must "view each piece of circumstantial evidence, not in isolation, but
in light of all the known circumstances." Id. (citing Keller at 813-14). If
circumstantial evidence, when viewed in light of all the known circumstances, is
equally consistent with either of two facts, then neither fact may be inferred; but
where circumstantial evidence is not equally consistent with either of two fact, and
the inference drawn by the jury is within the "zone of reasonable disakreernent,"
a reviewing court cannot substitute its judgment for that of the trier-of-fact. Id.
(citing Keller at 822).
24
8. Here, the Association argues that the evidence was insufficient to
support a verdict for breach of contract and negligence, and goes so far as to state
that "there is no contract requiring the Association to dredge the canals to a depth
of six-and-a-half feet". Yet, the Association in the very next sentence of its brief
admits that it did have the affirmative obligation to "reasonably maintain the
canals". (Apples Brief, p. 14,'1 4). For the Association to argue the absence of a
"6-1/2 foot dredging contractual obligation" misses the point. The real issue before
the trial court was a determination of what constitutes "reasonable maintenance".
The jury had all of the same evidence before it as set forth above with which to
determine what constituted "reasonable maintenance" under the circumstances, and
it did so, finding that the Association breached that obligation with the type of
maintenance it was performing and, further, that the Association was negligent in
its failure to properly maintain the canals, even after being repeatedly asked to do
so by Berry. What constitutes "reasonable maintenance" was established by
circumstantial evidence of the surrounding circumstances, the practices and history
of the Association, the plat requirements for the canals, the accommodation of
other large boats, and the prior issuance of special assessments when necessary to
pay for a costly maintenance issue by the association. Taking all of this into
consideration, the jury determined fault on the part of the Association. This Court
cannot now substitute its own judgment for that of the jury.
25
9. Because the evidence was legally sufficient to support the jury's
verdict, it should be upheld and the Association's argument for reversal denied.
The Deed was Not a Necessary Piece of Evidence
10. On a separate note, in support of its directed verdict argument the
Association argues that Berry's deed of conveyance documenting his ownership of
his home was not introduced into evidence at the trial; and, that without the Deed,
there was no "proof' that Berry's property incorporated the Plat restrictions. This
argument is wholly without merit and represents a complete misunderstanding of
what a plat is.
11. Berry's ownership of Lot 92 in Long Island Village was affirmatively
established by Berry without any objection of the Association. (III R.R. 69:22-23;
70:1). Further, the Association itself acknowledged Berry's review of the 1982
plat prior to purchasing Lot 92 (see Applitt's Brief; p. 2, ¶ 4). Thus, with Berry's
ownership of the Lot and the existence of the recorded plat not at issue, no need
existed for entering the deed into evidence at trial.
12. The Association's argument is based upon a complete
misrepresentation or misinterpretation of the law. Association argues that a plat is
nothing more than a "construction document" and that "a recorded plat is not
binding unless it is adopted by reference on a deed." (Appint's Brief; p. 24, 17).
This is ludicrous. A plat is part of the subdivision process. It is mandatory, and it
26
is approved and filed of record long before deeds are ever issued transferring title
to the resulting lots in the subdivision. The Texas Local Government Code
("TLGC") establishes the minimum legal framework for the subdivision process.
The term "subdivision plat" or more simply "plat" refers to a legal document
required any time the owner of a tract of land divides the tract into two or more
parts to lay out a subdivision of the tract. TLGC § 212.004(a). The plat must be
filed and recorded at the office of the County Clerk following approval by the
applicable jurisdiction review authority. 'ILGC §212.004(d). Any person
proposing to develop a tract must have a development plat of the tract prepared and
approved. § 212.045. The plat sets forth the layouts of streets, easements, utilities,
rights of way, lot sizes and locations, and the like. Nowhere in the Code is
"adoption" in a deed required to validate the plat. Once a deed is thereafter issued
transferring ownership of any of the lots identified in the Plat to this parties, the
developer is no longer permitted to change the Plat or issue easements or other
modifications of the use of the platted lands without involvement of the new
property owners (see Raman v. Chandler Properties, L. C v. Caldwell 's Creek
Homeowner's Association, 178 S.W.3d 384, 394 (Tex. App. — Ft. Worth, 2005)),
the reason being that the provisions set forth in the plat, and all of them (including
notations, boundary lines, survey information, and the like) are by inference
incorporated into each conveyance subsequent to the plat approval and recording.
27
13. In support of its argument, Association cites completely
distinguishable and irrelevant cases. For example, in Adams v. Rowles, 228
S.W.2d 849 (Tex. 1950) cited by Association, the court determined that reference
to an underlying plat in a deed places the grantee on notice of the plat provisions
and the grantee cannot avoid those provisions. Association's next case,
14. Raman v. Chandler Properties, L.C. v. Caldwell's. Creek
Homeowner's Association, 178 S.W.3d 384, 394 (Tex. App. — Ft. Worth, 2005),
concerned a developer's attempt to grant an easement across common area lands in
a development to third parties after lots had already been sold, The Raman court
mentioned that the deeds of those property owners granted them all rights under
the restrictive covenants, which means that once deeds were issued, the developer
could no longer grant an easement because it would impair the current lot owner's
property rights to those common areas. Nowhere is any reference made to a deed
having to "adopt" those existing restrictive covenants. Anderson, Clement, and
Home, all cited by Association at page 25 of its Brief, provide that reference to a
plat in a deed incorporates the details of the plat. However, nowhere does
Association cite to any legal authorities stating that plat provisions are only
applicable to lands if they are expressly referenced in the deed. By virtue of the
very platting process, a tract is divided into lots and blocks. Where that occurs,
deeds then go on to reference the plat map which established those very lots and
28
blocks; without such a reference, the legal description would be incomplete as it
would not indicate the subdivision at issue.
15, With Berry's ownership of the Property affirmatively established
without dispute from Association, and the fact that the Plat covered the subdivision
was also affirmatively established, the jury was free to take the information
contained within the plat into consideration in determining the Association's
obligations to the property owners such as Berry. The jury did just that and found
in favor of Berry. Directed verdict was inappropriate, as Berry established the
elements of his claims and the outcome was appropriately then given to the jury.
II. ASSOCIATION'S MOTIONS FOR JUDGMENT
NOTWITHSTANDING THE VERDICT AND FOR NEW
TRIAL WERE ALSO PROPERLY DENIED
A. Appellant Has Waived Its Right to Appeal the Jury's Award to
Berry for the Cost to Repair His Sailboat.
16. The court reviews a trial court's decision to admit evidence over
objection under an abuse of discretion standard and will not reverse that decision
absent a clear abuse of discretion. Apolinar v. Stale, 155 S.W.3d 184, 185 (Tex.
Crim. App. 2005).
1. The Association Failed to Comply with Tex. R. App. P. 38.1 (i).
17. The Association's contention that the trial court erred in admitting
Plaintiffs Exhibits 4 and 5 into evidence should be overruled because Association
29
has failed to comply with the explicit requirements of the Texas Rules of Appellate
Procedure regarding making a proper appellate argument (Tex, R. App. P. 38.1
(i)). 18. At page 15 of the Association's Appellate Brief, Section II, "Judgment
Notwithstanding the Verdict, New Trial" the Association asserts that:
The trial court erred in admitting plaintiffs exhibits four and five
(invoices) as evidence of damage to the Plaintiffs boat. Counsel for
the Association objected under the hearsay rule (Tex. R. Evid. 803) to
the introduction of those exhibits as there was no business records
affidavit on file to except the documents from the operation of the
hearsay rule, and Berry was incompetent to testify as to the
reasonableness and necessity of the repairs purportedly evidenced by
the admitted documents. The trial court erred in admitting the exhibits
as evidence of damages, and the award of $17,000 in damages to
Berry's sailboat is unsupported by the evidence, is against the great
weight and preponderance of the evidence, and is unreasonable; and
thus the trial court additionally erred in denying the Association's
motions for judgment notwithstanding the verdict and/or for a new
trial. (C.R.476).
19. While the above may sound like the introductory paragraph of a legal
argument which will immediately follow, in fact, the above paragraph comprises
the entirety of the Association's [legal] argument regarding the $17,000
awarded to Berry for the cost to repair his sailboat.
20. Texas Rules of Appellate Procedure, Rule 38.1 (i) requires the
Association to make a "clear and concise argument for the contentions made, with
appropriate citations to authorities and to the record." Clearly the Association has
failed to comply with this requirement when arguing that the jury award is
30
unsupported by the trial evidence.
21. For this reason alone, the Court can overrule this issue on appeal.
The Association's failure is not unlike the case of Precheck, Inc. v. Quick Check
Records, Inc. 2014 Tex. App. LEXIS 6863 (June 26, 2014), where appellant
Precheck disputed the amount of the judgment and argued that the judgment was
insufficient. Yet PreCheck's appellate brief contained only a cursory citation to the
company's evidence without providing any specific citation to the portion of the
record it found objectionable or incomplete. Id. at 10. The court overruled
PreCheck's appeal on this issue.
22. Likewise in the instant appeal, Association's contention that the jury's
award is not supported by the evidence because the trial court erred in admitting
Plaintiffs Exhibits 4 and5 into evidence should be overruled for failure to comply
with Tex. R. App. P. 38.1 (i).
2. Appellant Failed to Preserve the Alleged Errors.
23. Even if the Association had complied with Tex. R. App. P. 38.1(i)
above-- sufficient for this Court to determine if the trial court erroneously
admitted Berry's Exhibits 4 and 5 into evidence, the Association has still waived its
right to raise this issue on appeal because: a) the Association did not timely object
to Exhibits 4 and 5 and Berry's testimony regarding same; and b) it was harmless
error.
31
a. The Association Did Not Timely Object to Berry's Exhibits
and Testimony.
24. Association argues that the trial court's admission into evidence of
Bevy's Exhibits 4 and 5 was erroneous. However, error may not be predicated
upon a ruling which admits or excludes evidence unless a substantial right of the
party is affected, and a timely objection or motion to strike appears of record,
stating the specific ground of objection.... (Tex. Evid. R. 103 (a) (1), emphasis
added.)
25. In order to preserve error for review on appeal, the defendant must
make a specific, timely objection, and receive an adverse ruling at trial. Tex. R.
App. P. 33.1(a). And, you must object when the evidence is offered, not later.
Boyer v. Scruggs, 806 S.W.2d 941, 946 (Tex. App. Corpus Christi 1991, no
writ).
26. Barry's Exhibit 4 described the repair work needed to repair the
bottom of the sailboat and apply a new barrier coat at a cost of $12,491.16.
Exhibit 5 described additional work needed to repair the metal keel of the sailboat,
cleaning, compounding and waxing the hull, and replacing the propeller. The cost
to perform this work pursuant to Exhibit 5 was between $13,700 and $16,800.
While the Association did ultimately object to the introduction of these exhibits on
hearsay grounds (page 15 of the Association's Appellate Brief, Section II,
32
"Judgment Notwithstanding the Verdict, New Trial"), those objections were not
timely made for purposes of preserving the trial court's alleged error on appeal.
Further, the Association did not request a "running objection" from the court
regarding the Exhibits, nor Berry's testimony thereon.
It is well settled that admission of improper testimony is waived
when testimony to the same effect has been permitted without
objection, Slayden v. Palma, 108 Tex. 413, 194 S.W. 1103 (1917);
Brown v. Dale, 395 S.W.2d 677 (Tex.Civ.App. -- Amarillo 1965, writ
ref d n.r.e.); Columbia Engineering International v. Dorman, 602
S.W.2d 72 (Tex.Civ.App. -- Beaumont 1980, writ ref d n.r.e.). Even the
trial court's admission of evidence over objection is deemed to be
harmless where the objecting party subsequently permits the same
or 11651 similar evidence to be introduced without objection.
Slayden v. Palino, supra; Craig v. Allen, 556 S.W.2d 644
(Tex.Civ.App. -- Tyler 1977, writ rad n.r.e.).
Badger v. Symon, 661 S.W.2d 163, 164-165 (Tex. App. Houston 1st Dist.
1983), emphasis added.
27. Consequently, the below facts show that Association has waived this
issue on appeal.
EXHIBIT 4:
28. As shown verbatim below, before Beny attempted to introduce
Exhibit 4 into evidence, his attorney Lecia Chaney ("Ms. Chaney") posted Exhibit
4 on the Elmo for the judge and jury to view (with no objection from Association).
33
Ms. Chaney then proceeded to ask Berry questions about the Exhibit 4 and his
damages. It was only when Ms. Chaney asked Beriy what the cost to repair
number was that the Association objected because the Exhibit had not yet been
introduced into evidence. Berry's counsel then took Exhibit 4 off the Elmo. At the
Association's request, the preceding questions and answers regarding Exhibit 4
were stricken, and Berry ordered to "go ahead and lay the predicate" by the trial
court.
Plaintiff's Exhibit 4 III R.R.
Page/Line
Ms, Chaney, I want to talk about your damages, Mr. Berry. 115:16
Q:
A. Yes, ma'am. 115:18
Q: Okay, Let's talk about Exhibit 4. It's a two-page 115:22
document. Can you tell the jury what the first page
of Exhibit 4 is?
A: It's an estimate to do repairs on my boat. I had the 115:25 -
boat taken out over to the marina and had a 116:1-2
surveyor come over and do a survey on it.
Q: Okay. And what -- what is the work that you are 116:3
having estimated on here?
A: Repair the bottom, prep and apply new barrier coat, 116:5
sandblast the keel, reinstall the prop, and do other
work, not including -- well, what this says is
not including repairs to the keel or fiberglass
repairs to the hull.
Q: Okay. And the damage that is -- what is the repair 116:10
amount in this document?
34
A: $12,491.06. 116:12
Mr, Oliveira: Your Honor, I'm sony. I'm going to object to this 116:13
because it -- this appears to be some kind of
invoice for something from somebody else, and it
hasn't been admitted into evidence, Your Honor.
I'd ask that it be taken down right now while we
discuss this, please.
Mr. Oliveira: This has not been admitted into evidence, Your 116:20
Honor. I'm assuming it's some kind of invoice
from a dealer or something --
Ms. Chaney: I've taken it down, Your Honor. 116:23
The Court: All right. 116:25
Mr. Oliveira: That hasn't been proven up. And so I would object 117:1
to its admission or counsel discussing it.
The Court: All right. 117:4
Ms. Chaney: I'll ask the witness questions. 117:5
The Court: All right. 117:7
Mr. Oliveira: And I ask that any testimony from the invoice be 117:8
stricken and that the jury be asked to disregard
anything that was shown on the screen.
The Court: All right. Just go ahead and disregard all the 117:12
testimony up to this point. Strike it from the
record. Go ahead and lay the predicate.
29. The Association's objection to Exhibit 4 was too late. Exhibit 4 had
already been put up on the Elmo for the jury to see, and several questions had been
asked of and answered by Berry before the Association objected to Berry's request
that it be admitted into evidence. The proper time to have made this objection
35
would have been before, or immediately after, Ms. Chaney put Exhibit 4 up on the
Elmo. objection.
30. Also, while the trial court did tell the jury to disregard all of the
testimony up until that point, it did not instruction the jury to disregard what was
shown on the Elmo. III R.R. 117:12.
31. After Association's objection, Ms. Chaney asked Berry five more
questions about Exhibit 4, to which he responded--with no objection from the
Association:
Plaintiffs Exhibit 4 III R.R.
Page/Line
Ms. Chaney, Mr. Berry, what is Exhibit 4? 117:16
Q:
A: Exhibit 4 is an estimate that I received from a 117:17
boatyard to do repairs on my sailboat.
Q: And where is this boatyard? 117:19
A: This boatyard is in Aransas Pass, Texas. 117:20
Q: Okay. And what are the repairs that they are 117:21
estimating be done on your boat?
Mr. Oliveira: Your Honor, she's still getting into a document that 117:23
hasn't been admitted into evidence. I'm going to
object until she gets -- properly lays the foundation
that it's a business record.
The Court: I'll sustain at this point. 118:2
36
32. After a few more tentative starts by Berry's counsel, and with a little
help from the judge as seen below, the court finally admitted Exhibit 4 into
evidence. At this time, the Association again objected based on the hearsay
objection, which the Court overruled.
Plaintiffs Exhibit 4 III R.R.
Page/Line
Ms, Chaney, Mr. Berry, where did you get this document? 118:3
Q:
A: I got it in response to a survey that was done at my 118:5
request at the boatyard in south -- in Port Isabel,
Texas.
Q: What do you mean a survey? 118:8
A: I had the boat hauled out and cleaned and surveyed 118:9
by a license inspector. And his report was given to
me, and I gave that report to the local boatyard and
also sent it up to Aransas Pass, another boatyard
where he recommended that I take it for repairs, to
get an estimate of the damage for this lawsuit.
Q: And who was the individual that did your survey? 118:15
A: Wes Thom, Wesley Thom, 118:16
Q: And does the first page of Exhibit 4 represent the 118:17
work that Mr. Thom was planning to do on your
boat?
A: Yes, it does, 118:19
Ms. Chaney: Your Honor, I'd move to have Exhibit 4 admitted 118:21
into evidence.
Mr. Oliveira: And, Your Honor, I'm going to object because it's 118:23
still hearsay. It hasn't been proven up as a business
record. The proper way to do this was to submit it -
37
- to either get somebody from the repair place to
come and testify that this is their business record.
He can't testify to that. I don't know where this
came from. I mean, he could have -- I've never
heard of these shops. I don't know if they're real
shops. I don't -- we don't -- there's no authenticity.
There's no way for me to cross-examine these folks.
And she has not properly proven it up. It's either a
business record or it's hearsay. It's hearsay, Your
Honor. She hasn't proven it up.
Ms. Chaney: Your Honor, it was produced in discovery along 119:12
with the identification of Mr. Thom and his
boatyard. They had every opportunity to ask for
their depositions or take their depositions, and they
didn't do that. This is clearly proper evidence.
The Court: Let me see it. 119:17
Mr. Oliveira: And, Your Honor, the Court knows that just 119:18
producing something in discovery doesn't make it
admissible into evidence; and Ms. Chaney knows
that, too, Your Honor. It has to have been -- it's a
business record. It has to be proven up as a
business record, and it hasn't been proven up. And
unless somebody from the shop to prove it up at this
point, it should not be admitted into evidence. The
basic rule on hearsay evidence, Your Honor.
Ms. Chaney: Your Honor, they were identified in discovery along 120:2
with these records.
The Court: So who was this sent to, or who requested it, or -- 120:4
Ms. Chaney: We requested it to show the damage to Mr. Berry's 120:6
boat.
The Court: Who's "we," you or your client? 120:8
Ms. Chaney: Mr. Berry took his boat out, had the survey done, 120:9
had an estimate done on his boat....
38
The Court: That's what I'm saying. This was mailed to him or - 120:14
Ms. Chaney: Yes 120: 16
The Court: He received it? 120:17
Ms. Chaney: Yes 120:18
The Court: Well, I don't think you covered that. . . you received 120;19
that information, Mr. Berry?
A: Yes, I did sir. 120:22
The Court: Through the mail or fax or how did you get it? 120:23
A: He actually gave it to me and I printed it. He 120:25 -
emailed it to me, and I was there at the inspection 121:1-2
myself
The Court: Okay. You were there at the inspection, and then he 121:3
c-mailed you that information?
A: Right. 121:5
The Court: All right. I'll overrule the objection. Four will be 121:6
admitted.
Mr. Oliveira: Note my objection, Your Honor, the hearsay 121:9
objection (emphasis added).
33. Berry's counsel then went on to ask several more questions about the
repair estimate without any further objection from Appellant's counsel:
Plaintiffs Exhibit 4 III R.R.
Page/Line
Ms. What is the amount of repair that Mr. Thom is 121:16
Chaney, Q: estimating it's going to cost to do this work?
39
A: . . . I added it up. It didn't add it up here, but it's 121:19
approximately $30,000,
Q: . . . if you look at this number right here on exhibit 121:21
4, what is that?
A: That's just to repair the bottom and sandblast the 121:23
keel.
Q: Okay. And what is that number? 121:25
A: $12,491.06. 122:1
34. Thus, without any objection from Appellant's counsel, Mr. Berry was
allowed to testify that the cost to repair estimate was for $12,491,06.
35. Certainly, Association could have avoided this waiver by simply
asking the Court for a running objection. (Although an objection to evidence is
made and overruled, it must be repeated if similar evidence is subsequently sought
to be introduced, or the objection will be waived or the trial court's error will be
deemed harmless. (See again, Badger v. Symon, 661 S.W.2d 163, 164-65 (Tex.
App.—Houston [1 Dist.] 1983, writ st ref'd n.r,e.). Alternatively, the Association
could have put the whole matter on the record outside the presence of the jury, so
that the Association's counsel would not have to make repeated objections in front
of the jury. Tex. Evid. Rule 103 (a) (2): "When the court hears objections to
offered evidence out of the presence of the jury and rules that such evidence be
admitted, such objections shall be deemed to apply to such evidence when it is
40
admitted before the jury without the necessity of repeating those objections."
36. Instead, Association chose neither of these options, and as a
consequence has waived the right to raise this issue on appeal.
EXHIBIT 5:
37. The same thing happened with Exhibit 5. Berry's attorney asked
several questions about the document , and there were no objections until Ms.
Chaney sought to move Exhibit 5 into evidence. At that time, Attorney Oliveira
again objected based on hearsay:
Plaintiffs Exhibit 5 III R.R.
Page/Line
Ms. Okay. And then Exhibit 5, do you have that in front of 122:2
Chaney, you?
Q:
A: Yes, 1 do. 122:4
Q: Is that an additional estimate from Mr. Thom? 122:5
A; This is the estimate that Mr. Thom gave me, and he 122:6
gave this to the South Padre boatyard and we sent this
up to the Aransas Pass boatyard at his request.
Q: So Mr. Thom handed this to you, Exhibit 5? 122:9
A: No. He e-mailed it to me. 122:10
Q: He emailed it to you. And were you present when he 122: 11
was doing this inspection?
A: Yes, I was. . . And I was at his house when we went 122:13, 15-
over it, so -- 16
Ms. Your Honor, I'd move to have Exhibit 5 admitted into 122:17
Chaney: evidence.
41
Mr. Your Honor, same objection that it's a business record. 122:19
Oliveira: We have no way of cross-examining these folks, and
she should have submitted it as a business record. I
think this is improper hearsay . . . . it's hearsay and
there's no authenticity. (Emphasis added.)
After the Court overruled Association's objection to Exhibit 5, Berry's counsel
(just like with Exhibit 4) questioned Berry further about the exhibit, with no
objection from the Association:
Plaintiffs Exhibit 5 HI R.R.
Page/Line
Ms. In Exhibit 5, Mr. Berry, what are they estimating -- or 123:11
Chaney, what is the work that they're estimating needs to be
Q: done?
A: It would be best for me just to read it since they didn't 123:14-25,
itemize it. 124:1
•. .
"The fiberglass portion of the hull was not in bad shape
considering the time and shallows. But the metal keel
was badly pitted from electrolysis, and the propeller
also shows signs of severe electrolysis. The keel will
have to be sandblasted to remove what covering is still
left. But based on what 1 see at this time, I would
expect seven to $10,000. The propeller replacement
about four -- seven to $800. Then zines should be
installed. Remove all bottom paint, apply barrier costs
and bottom paint, I would expect five to 6,000.
"When the boat is out for repairs, I would want the boat
to sit out, bottom clean and drying for 90 to 120 days
just drying out the hull, checking for blisters. The keel
work and the cleaning, compounding and waxing of the
42
hull above the water line could be done,"
Q: So if you add up all those numbers, they range from a 124:7
low ... 13,700 to a high of $16,800?
A; I don't have a calculator, but -- 124:10
Q: Well, the jury will get this document and they can add 124:11
it.
38. Following the above testimony, Berry proceeded to testify
regarding how the damage that is referenced in Exhibits 4 and 5 was caused --
again, without any objection from Appellant's counsel (III R.R. 124:14-15,
125:1-5) thereby "curing" the error in admission, if any. See, Vasquez v. State,
2008 Tex. App. LEXIS 2952 (Tex. App. Corpus Christi Apr. 24, 2008). "It is well
settled that an error in admission of evidence is cured where the same evidence
comes in elsewhere without objection; defense counsel must object every time
allegedly inadmissible evidence is offered. General application of this rule has not
proven to be burdensome for defense counsel in many cases."
39. In addition to Berry's testimony curing the error in admission, if
any, Association also objected to the introduction of Exhibits 4 and 5 based on
"improper hearsay." (Page 15 of the Association's Appellate Brief, Section II,
"Judgment Notwithstanding the Verdict, New Trial;" III R.R. 121:9 and 122:19.)
Generally, hearsay is not admissible unless there is an exception.
Tex. R. Evid. 802. Upon request of a party, a trial court may exclude
43
evidence, such as hearsay. However, the trial judge has no duty to
exclude hearsay on his own, and once admitted without objection, such
evidence enjoys a status equal to that of all other admissible evidence.
In particular it has probative value and will support a judgment in favor
of the party offering it. Under Tex. R. Evid. 802, inadmissible hearsay
admitted without objection shall not be denied probative value merely
because it is hearsay. The court reviews the trial court's admission of
evidence, including hearsay, under an abuse of discretion
standard. Vasquez v. State, 2008 Tex. App. LEXES 2952, 1 (Tex, App.
Corpus Christi Apr. 24, 2008)
b. Any Error by Admitting Berry's Exhibits 4 and 5 Was Harmless
Because the Exhibits Were Cumulative of Berry's Oral Testimony to
Which the Association Did Not Object.
40. Even if the trial court made an error in allowing Exhibits 4 and 5 to be
admitted into evidence, the error was harmless and does not warrant reversal. The
error is harmless for two reasons. First, given the amount of testimony the
Association allowed Berry to render regarding Exhibits 4 and 5 without raising any
objections (see above testimony of Berry), the jury had sufficient evidence before
them to consider the issue of Berry's request for monetary damages without relying
on Exhibits 4 and 5.
41. Second, the cost to repair number in Exhibits 4 and 5 was almost
$30,000 (122:1-$12,491.06 and 124:7-$16,800-$13,700); and yet the jury awarded
Berry only $17,000. Therefore, it cannot be said with assurance that the jury's
decision was even based on Exhibits 4 and 5, versus Berry's "unobjected to"
testimony regarding his damages.
44
"If the same or similar evidence is admitted without objection at another
point in the trial, the error is harmless." Chapman v. State, 150 S.W.3d 809, 814
(Tex. App.—Houston [14th Dist.] 2004, pet. ref d).
42. Based on all of the foregoing arguments in this Section II, "A,"
Association has waived its right to appeal the jury's award to Beny of $17,000 for
the cost to repair his sailboat.
B. Evidence of the Decrease in the Value of Berry's Residence was
Properly Admissible and Considered by the Jury
43. Association argues that the trial court erred in denying the
Association's motion for judgment notwithstanding the verdict with regard to the
$5,000.00 damages award for the decrease in value of the Berry residence.
(C.R.476). Association complains that the only evidence in support of these
damages was the testimony of Beny himself. Without providing any legal
authorities whatsoever, Association provides this Court only with the conclusory
statement that "the jury's award of $5,000 damages to Berry's residence is
unsupported by the evidence, is against the great weight and preponderance of the
evidence, and is unreasonable, and thus the court erred in not entering judgment
notwithstanding the verdict or granting new trial." (Appint. Brf at 16, ¶ 6).
44. Again, the same waiver argument applies here as with the directed
verdict argument. "Rule 38 requires [a party] to provide us with such discussion of
the facts and the authorities relied upon as may be requisite to maintain the point at
45
issue." Tesoro Petroleum Corp. v. Nabors Drilling USA, Inc., 106 S.W.3d 118,
128 (Tex. App.—Houston [1st Dist.] 2002, pet. denied). "This is not done
by merely uttering brief conclusory statements, unsupported by legal
citations." Id. "Issues on appeal are waived if an Appellant fails to support his
contention by citations to appropriate authority . . ." Abdelnour v. Mid Nat'l
Holdings, Inc., 190 S.W.3d 237, 241 (Tex. App.—Houston [1st Dist.] 2006, no
pet.). Similarly, as this Court is well aware appellate issues are waived when the
brief fails to contain a clear argument for the contentions made. Izen v. Comm 'n
for Lawyer Discipline, 322 S.W.3d 308, 322 (Tex. App.—Houston [1st Dist.]
2010, pet. denied). By again failing to provide legal authorities in support of its
argument, Association waived this argument and failed to comply with its briefing
requirements to this Court. Therefore, the argument should be denied.
45. Even if this Court wanted to entertain Association's assertions, Belly
nevertheless prevails on this issue as a matter of law. Under Texas law, any
witness (including the property owner) may testify regarding market value, so long
as the witness is competent to testify about the subject. The witness must establish
that he or she has knowledge of the market value of the item in question, and that
such knowledge is based upon some degree of personal observation. Bavarian
Auto Haus, Inc. v. Holland, 570 S.W.2d 110 (Tex. Civ. App. Houston [1st] 1978,
46
no writ). Testimony regarding market value must be of value of the property at the
time it was damaged or destroyed, not the value at the time of trial.
46. Further, the opinion testimony regarding market value may be given
by the owner of the property. For example, an owner of an automobile may testify
as to the vehicle's market value. Coleman v. Gournet, 59 S.W.2d 550 (Tex. App. —
Houston [14th] 1993, writ dismissed). However, the owner's opinion testimony as
to the value of the property must refer to market value, rather than the property's
intrinsic or sentimental value to the owner.
47. Here, Berry's testimony falls directly within these legally mandated
boundaries for establishing diminution in value. Specifically, Berry testified that:
a. he has seen tax statements covering his property, which set forth
property values of the subject lot and the house;
b. the purchase price in 2005 was $106,000; and,
c. the latest tax statement valued his house and land at $96,000.
(III R.R.129: 14-131:9). Nowhere did the Association offer contradictory evidence.
The jury took the information properly before it and concluded Berry was entitled
to compensation of $10,000 for diminution in value.
48. In the light of the legal authorities set forth above and the evidence
presented by Berry, Association's argument is without merit and judgment in favor
of Berry on the diminution in value of his residence must be affirmed.
47
C. Berry Properly Established the Value of the Loss of Use and
Enjoyment of his Property.
49. Association next complains that the jury's award of $75,000 for
Berry's loss of use and enjoyment of his property was not supported in the record,
"was against the great weight and preponderance of the evidence, and is
unreasonable". (Appint Brf., p. 16, ¶ 7). Again, Association offers no legal
authorities in support of its argument; thus it has once again waived this argument.
"Rule 38 requires [a party] to provide us with such discussion of the facts and the
authorities relied upon as may be requisite to maintain the point at issue." Tesoro
Petroleum Corp. v. Nabors Drilling USA, Inc., 106 S.W.3d 118, 128 (Tex. App.—
Houston [1st Dist.] 2002, pet. denied). "This is not done by merely uttering brief
conclusory statements, unsupported by legal citations." Id. "Issues on appeal
are waived if an Association fails to support his contention by citations to
appropriate authority . . . ." Abdelnour v. Mid Nall Holdings, Inc., 190 S.W.3d
237, 241 (Tex. App. Houston [1st Dist.] 2006, no pet.). Similarly, as this Court
is well aware appellate issues are waived when the brief fails to contain a clear
argument for the contentions made. Izen v. Comm 'n for Lawyer Discipline, 322
S.W.3d 308, 322 (Tex. App. Houston [1st Dist.] 2010, pet. denied). By again
failing to provide legal authorities in support of its argument, Association waived
this argument and failed to comply with its briefing requirements to this Court.
Therefore, the argument should be denied. Association's brief amounts to nothing
48
more than debating the jury's analysis of the evidence introduced at trial by
Association and criticizing Berry's testimony in support of the jury's $75,000
award for loss of use.
50. To prove loss of use damages in Texas, the Plaintiff must provide
evidence of (1) the reasonable rental value of the substitute item; and (2) the time
period in which the Plaintiff was deprived of using the damaged item. Kollision
King v. Calderon, 968 S.W,2d 20 (Tex. App. — Corpus Christi 1998, no pet.).
51. Berry provided the trial court and jury with detailed testimony
regarding loss of use. His testimony included his personal experience with use of
similar ocean-worthy sail boats and the cost of rental of replacement watercraft (III
R.R. 127:14-17); the fact that he had not been able to sail since 2009 (III R.R.
129:12-13); and, that he was seeking recovery for the loss of use he sustained as a
direct result of Association failing to maintain and dredge the canals to an
appropriate depth. (III R.R. 133:17-18).
52. Thus, Berry established both elements required for proving loss of use
of his own sailboat: the reasonable rental value and the time period during which
he was deprived of using his sailboat. Association's argument in favor of a new
trial or judgment notwithstanding the verdict is without merit and should be
denied.
D. Berry's Testimony In Support of his Mental Anguish Claim Satisfies
the Texas Requirements for Recovery of Such Damages
49
53. The Association next complains that the mental anguish damages awarded
to Berry were not supported by the evidence. However, other than citing to the seminal
case of Parkway on this issue, Association offers no authorities in support of its
conclusory statements.
54. In Texas, non-physical injury cases have a very specific, well-established
standard for the recovery of damages for mental anguish. In Parkway Company v.
Woodruff, 901 S.W.2d 434 (Tex. 1995), the Texas Supreme Court laid the initial
foundation for the recovery of such damages in a non-personal injury case. In Parkway,
suit was brought by a homeowner against a contractor for flood damage. Woodruff's
home flooded and was damaged due to the negligence of the defendant contractor
building the home in the flood plain. The Woodruffs sued and recovered for their mental
anguish resulting from the flooding of their home. The Court in Parkway set the
following standard for recovery of mental anguish damages in cases not involving
physical injury: Plaintiffs may recover when they "have introduced direct evidence of
the nature, duration and severity of their mental anguish, thus establishing a substantial
disruption in the plaintiffs' daily routine." Parkway, 901 S.W.2d at 444. The Court
called for close judicial scrutiny of the plaintiffs' evidence, and that "mere emotions" did
not rise to the legal of compensable mental anguish. Id. What did satisfy the standard,
however, were situations where some physical manifestation or expression of mental
anguish exists, such as "throwing up" or becoming "physically ill". See, e.g., Latham v.
Castillo, 972 S.W.2d 66, 70 (Tex. 1998)
50
In this case, Berry testified that the Association's actions and inactions:
A. Caused him a lot of anguish (III R.R. 131:11)
B. Caused heart angina requiring treatment, and that he was still being
treated for it (III R.R. 131:11-19)
C. He had to seek treatment for depression, and that he was still being
treated for it; and, a worsening of pre-existing depression "over the years"
requiring a change of his medication 131:10-132:22). No expert or
other testimony was offered to substantiate Berry's damages. (III.
R.R.115:16-134:2), but as a matter of law in Texas no such expert testimony
was required.
Thus, more than "mere emotions", Berry additionally established to the Court physical
manefestations of his anguish. Despite what appeared to be an obvious bias in favor of
physical symptoms, after Latham, the Texas Supreme Court actually "eliminated this
physical manefestation' requirement after concluding that physical symptoms are not an
accurate indicator of genuine mental anguish." See City of Tyler v. Likes, 962 S.W.2d
489, 495 (Tex. 1997), citing Boyles v. Kerr, 885 S.W.2d 593, 598 (Tex. 1993); St.
Elizabeth Hosp. v. Garrard, 730 S.W.2d 649, 650 (Tex. 1987), overruled on other
grounds by Boyles, 885 S.W.2d 593. Yet Berry's unchallenged proof at trial met even
this previously heightened standard. The jury's assessment of the value of the harm
sustained by Berry through mental anguish should not be disturbed on appeal.
51
III. BERRY AS A PROPERTY OWNER HAD STANDING TO SUE
55. Association next argues that the trial court erred in denying its motion to
dismiss for lack of jurisdiction because Berry, as an individual property owner, lacked
standing to sue. (CR. 420-424). Association argues "in a suit to recover for injury to
land owned in common, all tenants must join. Id. (citing Grdf, C. & S.F. Ry. Co. v.
Cusenberty, 26 S.W. 43, 45 (1894) and other authorities). Association goes on to argue
that recovery for damages to common areas belongs solely to the homeowner's
association; the unit owners have no individual property right in the common areas.
(Association's Brief at 18-19). Instead, Association argues that only the Association has
that standing. This is a misstatement of the law.
56. In Brooks v. Northglen Association, 141 S.W.3d 158 (Tex. 2004), the Texas
Supreme Court established the controlling law on this issue. In Brooks, the
homeowner's association alleged that the trial court lacked subject matter jurisdiction
because the property owners, who were challenging, via a declaratory judgment action,
the association's attempt to increase annual assessments and impose late fees. The HOA
argued that all the property owners were required to be joined before the court could
render a declaratory judgment and that, alternatively, the court was without jurisdiction
because property owners in each of the affected sections were not represented.
57. The Court held that a declaratory judgment action against property owners'
association would not prejudice the rights of other property owners because urn joined
owners would not be bound by the suit, noting that nothing prevented the trial court from
rendering complete relief to those parties before it, and if the homeowners' association
52
were exposed to multiple suits, that was the result of its own inaction. Id at 163. See
also Jones v. Smith, 157 S.W.3d 517 (Tx. Ct. App. — Texarkana 2005).
58. The Court reasoned that Rule 39 of the Texas Declaratory Judgment Act
determines whether a trial court has authority to proceed without joining a person whose
presence in the litigation is mandatory. Id. at 162. However, § 37.006(a) of the
Declaratory Judgment Act, which provides that a trial court's declaration does not
prejudice the rights of any person not a party to the proceeding, dispenses with any
concern that all owners must be joined. See Tex. Civ. Prac. & Rem. Code § 37.006(a).
"[I]t would be rare indeed if there were a person whose presence was so indispensable in
the sense that his absence deprives a court of jurisdiction." See Cooper v. Tex. Gulf
Indus., Inc., 513 S.W.2d 200, 204 (Tex. 1974).
59. Accordingly, the Association's argument is without merit and must be
disregarded. The trial court properly denied the Association's motion to dismiss on the
basis of standing. To hold otherwise would subject property owners such as Beny to a
high burden of adding hundreds, if not thousands, of other property owners in a
subdivision merely to enforce rights and privileges of the party property owner.
IV. ATTORNEY FEES WERE PROPERLY AWARDED GIVEN THE
INEXTRICABLE NATURE IN WHICH THE CLAIMS WERE
INTERTWINED. BERRY CONCEDES THAT IF THIS COURT
DISAGREES, THE CASE SHOULD BE REMANDED FOR
FURTHER EVIDENCE REGARDING THE PERCENTAGE OF
TIME BERRY'S COUNSEL DEVOTED TO EACH CLAIM
ASSERTED
53
60. Recovery of attorneys' fees under Texas law turns upon whether
contractual or statutory authorization exists for such fees. Gulf State Oils. Co. v.
Low, 79 S.W.3d 561, 567 (Tex. 2002). The Texas Civil Practice and Remedies
Code permits prevailing parties to recover their attorneys' fees in breach of contract
actions. TEX. CIV. PRAC. & REM. CODE § 38.001(8) (Vernon 1997 & Supp.
2005). Section 37.009 also permits recovery of attorney fees for a declaratory
judgment claim. Here, Berry sought recovery of his attorneys' fees incurred in
connection with its breach of contract and declaratory judgment claims against
Association. Berry may also recoup fees incurred as a result of his legal work on
other (unrecoverable) claims to the extent that its work on these other claims was
"so intertwined" with its efforts on the recoverable claim (the breach of contract
and declaratory judgment claims) that it advanced both claims. Tony Gullo
Motors I, L.P. v. Chapa, 212 S.W.3d 299, 314 (Tex. 2006).
61. A party seeking attorneys' fees has a duty to segregate nonrecoverable
fees from recoverable fees. Id. at 311. In 1991, the Supreme Court of Texas in
Stewart Title Co. v. Sterling, 822 S.W.2d 1 (Tex. 1991) recognized an exception to
this duty to segregate:
"A recognized exception to this duty to segregate arises when the
attorney's services rendered are in connection with claims arising out
of the same transaction and are so interrelated that their 'prosecution
or defense entails proof or denial of essentially the same facts.'
Therefore, when the causes of action involved in the suit are
dependent upon the same set of facts or circumstances and thus are
54
`intertwined to the point of being inseparable,' the party suing for
attorney's fees may recover the entire amount covering all claims."
Id. (quoting Sterling, 822 S.W.2d at 11-12) (other citations omitted). The Supreme
Court of Texas revisited the Sterling exception and modified it as follows:
Accordingly, we reaffirm the 1pile that if any attorney's fees relate
solely to a claim for which such fees are unrecoverable, a claimant
must segregate recoverable from unrecoverable fees. Intertwined facts
do not make tort fees recoverable; it is only when discrete legal
services advance both a recoverable and unrecoverable claim that they
are so intertwined that they need not be segregated. We modify
Sterling to that extent.
Chapa, at 313-14.
62. Berry was awarded $15,9.0Gin attorneys fees Chapa, 212 S.W.3d at 313. The Court in Chapa
went on to provide guidance regarding what type of proof is (and is not) required
for attorneys' fees: This standard does not require more precise proof for attorney's
56
fees than for any other claims or expenses. In Chapa the attorneys did-not have to
keep separate time records when they drafted the fraud, contract, or DTPA
paragraphs of her petition; an opinion would have sufficed stating that, for
example, 95 percent of their drafting time would have been necessary even if there
had been no fraud claim. Id. at 314,
66. Notably, Association did not submit an opposing affidavit in response
to the Chaney affidavit. It merely argues now something similar to a "pro-rata"
reduction of fees argument, summarily asserting that if there are 5 claims, and you
can recover attorney fees on 2 of them (or 40% of the claims), then the total fees
should be reduced by 60%. Association cites no legal authorities in support of this
formula, as none exist.
67. This Court may be well advised to conduct an exhaustive review of
the record of this case, the extent of all briefing submitted, and observe the
overlapping nature of Berry's claims before settling on the final attorney's fees
award. The Court should specifically consider whether work on the non-
recoverable claims "tended to prove" the breach of contract and the declaratory
judgment claims - a key factor in Chapa. This, in addition to the trial court's first-
hand knowledge of the legal work on the case, supports not disturbing the original
award. The evidence at trial alone established the interrelatedness of the claims at
issue here. A cursory review of the opening statements and closing arguments at
57
trial reveals that evidence of the breach of contract claim advanced the other claims
and vice versa. In fact, even Association in its Appellants' Brief never articulated
different standards or different evidence regarding the breach of contract claim vs.
the negligence claim. Further, the high quality of the legal work on both sides of
the ease was clear to the trial court throughout the proceedings - both in-court and
in the briefing. The case was exceptionally hard-fought, and the issues were novel.
68. This Court is respectfully asked to uphold the trial court's award of
attorney fees. In the alternative, however, if this Court determines that it does not
have sufficient evidence to support the fee award, then the Court must remand the
case for further proceedings to enable Berry to present additional evidence with
regard to the intertwined nature of the claims as well as evidence of the
percentages of time expended on each recoverable claim.
V. THE EVIDENCE SUPPORTED THE COURT'S DECLARATORY
JUDGMENT THAT THE ASSOCIATION HAS A DUTY TO DREDGE
THE CANALS TO FIVE (5) FEET BELOW MEAN TIDE.
69. Finally, Association challenges the trial court's declaratory judgment
requiring Association to dredge the canals to a depth of six-and-a-half feet. In
support of its argument, Association adopts verbatim the same arguments and legal
authorities set forth in support of its argument in favor of new trial or judgment
notwithstanding the verdict on Berry's breach of contract claims. (Compare
58
Apphit's Bif, pp. 24-26 with pp. 11-12). In response, Berry similarly adopts his
arguments set forth herein at pages 27-50 under section IL In summary,
Association's arguments are without merit, and his challenge to the declaratory
judgment award falls short of the proof required for challenges to the sufficiency of
evidence. See, pp. 27-50, supra, and the legal authorities cited therein, which are
incorporated herein by this reference.
VI. CONCLUSION
The Association's attack on the trial court's judgment below falls far short
of the arguments and legal authorities necessary to overturn the trial court's jury
verdict and resulting judgment below. This case was well-developed; the proof
presented to the jury was comprehensive; and at the end of the day the jury
resolved all of the open issues, save only the declaratory judgment which fell
within the purview of the judge.
Berry prays that this Court will affirm the judgment of the trial court; award
Berry his attorney fees and costs incurred on appeal against Association, and for
such other and further relief as may in the premises be just and equitable.
59
Respectfully submitted,
THE LEFLER LAW FIRM
501 South Austin Avenue, Suite 1245
Georgetown, Texas 78626
T (512) 863-5658
F (866) 583-7294
AND M L LER
Texas State Bar- o. 12161040
slefler@leflenegal.com
LEAD COUNSEL FOR APPELLEE
60
PROOF OF SERVICE
This is to certify that on February 6, 2015, Appellee served Appellants with
a true and correct copy of the foregoing Answer Brief via ECF service to:
David G. Oliveira
Romig, Oliveira & Fisher, LLP
10225 North Tenth Street
McAllen, TX 78504
Fax: 956-386-1625
doliveira@rofIlp.com
Lead Counsel for Appellants
Lecia Chaney
COLVIN, CHANEY, SAENZ & RODRIGUEZ
1201 E. Van Buren St.
Brownsville, Texas 78522
T (956) 295-3070
F (956) 541-2170
Counsel for Appellee
61
CERTIFICATE OF COMPLIANCE
I certify that this document was produced on a computer using Microsoft Word
2010 and contains 14,227 words as determined by the computer software
wordcount function, excluding the sections of the document listed in Texas Rule of
Appellate Procedure 9.4(i)(1).
62
VII. APPENDIX
Exhibit A: March 2005 Restatement of Declaration of Covenants, Conditions and
Restrictions (P's Exh. 1)
63
EXHIBIT A
MARCH 2005-RES-TATEthENT OF THE
DECLARATION OF COVENANTS, CONDITIONS AND
RESTRICTIONS
FOR LONG ISLAND VILLAGE, A CONDOMINIUM
(formerly known: as OUTDOOR RESORTS/SOUTH PADRE, A CONDOMINIUM)
THE STATE OF TEXAS
COUNTY OF CAMERON
KNOW ALL MBA By frgEBB:,}3REsEns: That this March 2005
Restatement. of the Declaration :of Covenants, Conditions and
Restrictions For Long Island Village", a Condominium (formerly known as
Outdoor Resorts/South Padre; a Condoininlum) ("March 2005
Restatement"), is made on the date hereinafter set forth by LONG
ISLAND VILLAGE OWNERS ASSOCIATION, INC. (the "Association") a
non-profit Texas corporation previously known as Outdoor
Resorts/South Padre •Owner's- Association, Inc. regarding the following
real property:
The real property described In Volume 14, Pages 691-705, and
In Voluna 6271,._ pap ,53• of the Official Records, Cameron
County, Teitas' •
to supercede in their entiretleOlhotetertairanstruments recorded in the
Official 19994.44::..q.4-11M211,,,-C,94-111WaWs as
(1) Docunierit,. 84(1()54.$,3. 19604, Page 49-69 (the
"Carfeetedi Velarg.tithilldethAtrient");- i • • • .
(2) Document 1#0004.1531 in Volume 10392, Page 118-138 (the
• "Original Restated Declaration"), and
(3) the Declaration of. Covenants, Conditions and Restrictions for
Outdoor Resorts/South Padre, a Condominium, dated March 3,
1982, .and recorded in Voluble '14, Page 673-721 (the original
`Outdoor Resorts/South Padre Declaration"), as the same was
thereafter atribilded fkrii-tinteld time. --- • •
WITNESSETH:
ro
WHEREAS a joint venture comprised of Outdoor Resorts of Texas,
Inc. (a Texas corporation) and Fiesta Harbor, Inc. (a Texas corporation),
hereinafter referred to as the "Developer," recorded a Declaration of
Covenants, Conditions and Restrictions for Outdoor Resorts/South
Match 2005 Res!ated Declaration
Padre, a Condominjunt, and Exhibits A, B and C thereto, dated on or
about March 3,. 1.982, in Volume 14, Page 673-721, of the Official
Records, Cameron County, Texas (the "Outdoor. Resorts/South Padre
Declaration"); and
WHEREAS under the Otitdoor Resorts/South Padre Declaration,
the Developer subjected certain Iota described in Exhibit "B" thereto, in
which Developer held certain leasehold interests, to a Condominium
regime, and corrected, clarified and superceded all previously filed
Declarations of covenants, conditions and restrictions and Exhibits
thereto, consisting of plats covering Phases I through TV inclusive, that
had been theretofore sequeAtially _filectfor.....re,cord-in--the--Office-of- the
County Clerk, Cameron County, Texas, in Volume 6, Pages 645-700,
Volume 7, Pages /35-848, Volume 8, Pages 35-110, Volume 8, Pages
663-682, VolUme 10, Pages 1-76, Volume 13, Pages 65-113;
WHEREAS 'Certain changes have occurred since the .Outdoor
Resorts/South Padre I7eclaation was filed, as follows:
1, The ASSO6ladOn-adqUired "the fee interests to the real property
comprising the Condominium Common Elements, including the
check-jn area that was previously owned by the Developer; and
2. Certain:Of the'oWnerS of individual Units of leasehold interests
subjected to the CondOrriiniUm regime acquired the fee interests to
the real prOperty underlying those leasehold .interests; and
3. In additiOri to PhaseS 'Ala-will IV of the condominium
development that were platted,' the Developer contemplated Phases
V through VII of the condominium development (the "Contemplated
Development) that never occurred, changing the number of Units
in the condominium development. The Texas corporations that
comprised the joint venture Developer, Outdoor Resorts of Texas,
Inc. and Fiesta Harbor, Inc., forfeited their respective corporate
charters .on February 11, 2000, and February 15, 1994,
respectively. Certain of the rights reserved or applicable to the
Developer in the Outdoor Resorts/South Padre Declaration haVe
expired, or are thUs no longer applicable, while other reserved.
rights were acquired by the Association under an amendment to
the Declaration adopted March 7, 1998, recorded in Volume 5271,
Pages 51-54 of the Official Records, Cameron County, Texas; and
4. The: enernberS of the Association amended the Outdoor
Resorts/South- Padre Declaration in the following amendments
recorded in the Official Records of Canieron County, Texas:
2
March 2005 Restated Declaration
(a) amendment adopted March 1, 1989, recorded in Volume
754, Page 183-187;
(b) amendment adopted March 28, 1991, rqcorded in Volume
1587, Page 22-32;
(c) amendment adopted March 7, 1998, recorded in Volume
5271, Pages 51-54, and which added certain additional real
property to the Common Elements;
5. The Association or its .Board of Directors have; at various
times, amended the Bylaws forthe AsSociation, or the initial Rules
and gegulatiOns fcir'the•ASsociation (originally recorded as Article
XVj~ of tho'Jtylaws_and. -whicb Bylaws. -were-.Exhibit- -the--
Outdoor Redorts/Sauth 'Padre Declaration), and which
amendrnciite are' reflected' lu dOcumerits recorded in the Official
Records d'ci-Oroiri coiiiify;'inany"6T. Which amendments were
supercededby stibet-qtierit.:aVelidmentg;
6. The Association amended its name to "Long Island Village
Owners ASsocie.tion, ai6." and the- name of the Condominium
regime to "Long Island Village." .
7. The OUtdOor Resorts/South Padre Declaration in various
provisions references "campsites" instead of "Units" or "lots." The
term "campsites" is . not defined in the Outdoor Resorts/South
Padre Declaration, and‘tione of the Condominium- Units or lots has
the appearance of what is commonly understood as a "campsite"
(as opposed to a lot with a pad).
8. The number of Units in the Condominium is actually 1024,
rather than the 2000 units referenced in the Outdoor
Resorts/South Padre Declaration;
9, Because it- does not have an insurable interest in the
individual units, the Association is unable to obtain certain
insurance as suggested or implied by the Insurance Provisions in
Article VIII of the Outdoor. Resorts/South Padre Declaration,
requiring a-re-wet:ding of the.Association's obligations in Article
VIII; and ::•• -
10. The Texas. statutes • applicable to this Condominium have
been re-codified:and amended..-;
(collectively the "Changes"); and
WHEREAS Section -82.053 of Chapter 82 of the Texas Property
Code, applicable to this Condominium regime as set forth in Chapter 81
3
March 2005 Restated declaration
of the Condominium Act, provides that the provisions of the declaration
and bylaws are severable; and
WHEREAS the Association seeks to restate the Outdoor
Resorts/South Padre Declaration in order to sever the declaration and
the bylaws in accordance with Section 82.053, and to additionally clarify
the declaration and bylaws to reflect the Changes, including:
1. To eliminate the reference to leasehold interests in the
Common Elements,,, to which the Association now holds a fee
interest;
-
2. To eliminate the reference to leasehold interests regarding
Units, as most of the Owners of Units hold the fee interest to the
real property;
3. To eliminate references (a) to Phases V through VII of the
Contemplated Development that were never developed, (b) to a
Developer that no longer exists, and (c) to rights reserved to the
Developer that are no longer applicable; and to substitute the
Association with references to the Rental Rights acquired by the
Association from the Developer under the March 7, 1998
Amendment;
4. To eliminate the confusion created by piecemeal
amendments to the Declaration and Bylaws recorded in the Official
Records of Cameron County, Texas, by restating in their entirety
(a) in one document the Declaration as amended, and (b) in
another document the Bylaws as amended;
5. To eliminate the confusion created by piecemeal and
superseded amendments to.the Rules and Regulations (Article XVII
of the Bylaws) by separating the Rules and Regulations from the
Bylaws, and restating in their. entirety, in one document, the Rules
and Regulations as. currently amended; g(t2
6. To change references to the Association and the
crt
condominium regime to reflect the current names;
7. To substitute the defined term "Unit" or "lots" for the word
"campsite(s)";
8. To reflect the correct number of Units actually existing in the mo
Condominium;
9. To reflect Insurance Provisions in Article VIII as restricted to rt.1
cov
4
March 2005 Restated Declaration
property-in-.whieh the, Association has..tttr insurable interest for
which it can obtairi-insurande;
10. To reflect and correct references to Texas statutes as re-
codified and amended; and
11. To correct certain typographical errors in the Outdoor
Resorts/South Padre Declaration;
and
-WHEREAS -.the— As so si o n --seek-s--- to --re state- - tire--- earreatid •
Declaration Restatement (Document #00054483 in Volume 10604, Page
49-69), and the Original Restated Declaration (Document #00041531 in
Volume 10392, Page 118-138) filed in the Official Records of Cameron
County, to correct certain errors inadvertantly made in restating the
Outdoor Resorts/South Padre Declaration therein;
NOW THEREFORE, IN CONSIDERATION OF THE FOREGOING, the
Association restates the Declaration of Covenants, Conditions and
Restrictions for Long Island Village, as follows;
Definitions:
As used in this Declaration of Condominium and the By-Laws and Rules.
and Regulatiens"refereneed- herein;•and all 'aMendraents thereto, unless
the conthxt- otherwis&etquifesi lhe 'following definitions .shall prevail:
A. Declaration,•or Declaration of Condominium, or Enabling
Declaration, means this instrument, as it may, from time to time, be
amended.
B. Association or Corporation means LONG ISLAND VILLAGE
OWNERS ASSOCIATION, INC., a nonprofit Texas corporation, and its
successors, being the entity responsible for the operation of the
Condominium,
C. By-Laws means the By-Laws of Long Island Owners Association,
Inc., as they exist from time to time.
D. Common Elements means the portions of the Condominium
Property not included in the Units and shall include any premises leased
by the Association.
5
Mardi 2005 Restated Declaration
E, Limited Common Elements means,, and includes those Common
Elements which are reserved for only limited use by the Association or
certain Unit Owners,
F. Condominium means that form of ownership of Condominium
Property under which units or improvements arc subject to ownership by
different owners, and there is appurtenant to each unit as part thereof,
an undivided share in the common elements. .
G. Condominium Act means, and refers to, the Condominium Act
of the State of Texas, Chapter 81, Texas Property Code, as same may be
amended from time to time..
H. Common Expenses means the expenses for which the Unit
Owners are liable:0 the Association.-
1, Common Surplus means the excess of ail receipts of the
Association, inOlUding, bUt not • limited to, Assessments, rent and
revenues on account of Coinnion Elenients, over the amount of Common
Expense.
J. Condominium PrOperty means, and includes, the land in a
Condominium whether or not contiguous, and all improvements thereof,
and ail easements and rights thereto, intended for use in connection with
the Condominium.
K. Assessment means a share of the funds required for the
payment of Common Expenses whiCh, from time to time, is assessed
against the Unit Owner.
L. Condominium Parcel means a Unit, together with the undivided
share of Common Elements, which is appurtenant to the Unit.
M. CondominiuM Unit, or Unit, means a part of the Condominium
Property which is subject to private ownership.
N. Unit Owner, or OWner of a Unit, or Parcel Owner, means the
owner of a Condominium Parcel.
0. Village means the lots and Common Elements subjected to the
Condominium regime now known as Long Island Village,
P, Institutional Mortgageg means a bank, savings and loan
association, finance company, jnsurarice company, or union pension
fund, authorized 'tci'do 'business -in the State of Texas, or any agency or
the United States Government.
6
March 2005 Restated Declaration
Q. Voting Member means that person designated to vote where a
Unit is owned by two or more parties or by a corporatiop.
R. Occupant means person or persons, other than the Unit Owner,
in possession of a Unit.
S. Condothiniuni Documents means this Declaration, the By-Laws,
the Regulations, and all Exhibits annexed thereto as the same, from time
to time, may beatnerideds,..-.
, Unleas the cokitpd iithawiSequiT0,-all--othes-terms- used-in.
this DeclaratiOn.Sha)l. bp'asSiuned to have the gleaning attributed to said
term in the OondOMiniinWAct Of. :the State .1`exas, Chapter 81, Texas
Property Code, aS aniended::
ARTICLE I.
OWNERS ASSOCIATION AND VOTING RIGHTS
The Condominium shill be goVerned by an Owners' association. It
shall be known as LONG ISLAND VILLAGE OWNERS ASSOCIATION,
INC.
The Association shall have one class of voting membership which
shall consist of all Condominium owners. Such owners shall be entitled
to one vote for each Condominium Unit in which they hold an interest.
When more than one person holds such interest in a Condominium Unit,
the vote for such Condominium Unit shall be exercised as they among
themselves determine. In no event shall more than one vote be cast with
respect to any Condominium Unit. Every record owner of a
Condominium Unit which is a part of the property which is or may
become subject by Covenant of record to assessment by the Association
shall be a member of the Association, provided, however, there shall be
only one Voting Member. 0Wriership'of a Condominium Unit shall be the
sole qualification for membership. • • -
The foregoing is not intended to include anyone who holds an
interest merely as Wecu,r1ty rOf the petfgrmante or an obligation.
ARTICLE II.
OWNERSHIP OP COMMON ELEMENTS
Each of the Unit Owners shall hold ail: undivided 1/1024 interest
or greater pro rata share in the common elements and limited common
elements,
7
March 2005 Restated Dedaretton
'The. interest, to each -Coridornifiium Parcel shall include both the
Condominium Unit and the aboVe respective undivided interest in the
Common Elements to be deemed to be conveyed or encumbered with its
respective Condorninium Unit even - though the description in the
instrument' of Conveyance or encumbrance may refer only to the real
property interest or to the Condominium Unit; Any attempt to separate
the real property interest to a Condominium Unit from the undivided
interest in the CommetiElements appurtenant to each Unit shall be null
and void. The term "Common Elements,". tvhen used throughout this
Declaration shall mean both Common Elements and Limited Common
Elements, unless the context.othenximspeeifically.proyldeaor.require-s— -
These Common Elements Include, but are not limited to the
following: The roads within the Condominium property, ail pathways as
shown on the subdivision plat, bathhouses, recreational faCilities in the
recreation area, service facilities located in the common use areas, parks,
parking areas, and other areas which are for common benefit and
enjoyment of the owners of the lots, including the check-in area that was
acquired by the Association from the Developer.
Canals or channels, up to but not including bulkheads, are
,...-.--------------
included as Limited Common Elements, for use by the owners of lots
abutting the canals or channels including space for boat, docks built in
compliance with standardS'established- by the Association.
ARTICLE
COMMON EXPENSES AND COMMON SURPLUS
The Comitlen,Expenseapf the. Condominium shall include, among
other items set -.forth herein, the, niaintenanee and operation of the
Common Elements: Each Unit Owner; shall be responsible and liable for
an equal share of the Common Expenses, yegardless of the purchase
price of the Unit, its location or square footage of the same.
oti
Go
Any Common Surplus of the Association shall be owned by each Gi n
Unit Owner in the same proportion as the Unit Owner's contributions to 1-•
the Common Expenses as the AsseSsments of the Association. to
ch
In
W
COW
ARTI,Clilt. 111 . xIK
1-,
61MC?10_ A3APAI10111)1141 T , Pg 1) gRt4 A MVO ti
GC
t-L 0
This Declaration may be. amended at any regular or special ...-,
meeting of the Assodiation Unit Owners of this Condominium, called and
convened in accordance with the By-Laws, the affirmative vote of the v...
al
....re
8 to
March 2005 Restated Declaration
Voting Members casting not less than three-fourths (3/4) of the total
vote of the members of the Association.
All amendments shall be recorded with the County Clerk of
Cameron County, Texas. No amendment shall change any Condominium
Parcel, nor a Condominium Unit's proportionate share of the Common
Expenses or Common Surplus, nor the voting rights appurtenant to any
Unit, unless all record owners thereof, and all record owners of
mortgages or other voluntarily placed liens thereon, shall join in the
execution of the amendment. No amendment shall be passed which shall
impair or prejudice the rights of any lessor's interest with respect to any
Unit in which_the owner thereof holds.a.teasehoid-interest
ARTICLE V.
BY-LAWS
The operation .of the Condominium Property shall be governed by
the By-Laws which: are -set forth in'a document entitled "By-Laws of Long
Island Village OWners Association, Inc." recorded in the Official Records,
Cameron. County, Texas..
No modification .or amendment to the By-Laws of said Association
shall be valid unless set forth in, or annexed to, a duly recorded
amendment of this, Declaration. The By-Laws may be amended in the
manner provided. for therein; bilt no amendment to said By-Laws shall be
adopted which would affect or impair the validity or priority of any
mortgage covering the Condominium Parcels, or that would adversely
affect or impair the ASsociation rental:rights, , .
ARTICLE VI.
ASSESSMENTS
The Association, thrOugh its Board of Directors, shall have the
power to fix and determine, from time to time, the sum or sums
necessary and adequate to provide for the Common Expenses of the t2
CondominiuM Property, and such other Assessments as are specifically
provided for in this Declaration and the By-Laws. The procedure for the
determination of such Assessments shall be set forth in the By-Laws of s,
the Association. rato
xt
The Corm-non- Expenses shall be assessed against each Parcel
Owner, as provided in Article.III. of this Declaration. 1-0
Assessments that, are unpaid for fifteen (15) days after due date
shall bear interest at the rate of Ten percent (10%) per annum, from due ro
co-tt
9
March 2035 Restated Declaration
date until paid, or at the sole discretion of the Board of Directors, a late
charge of up to $25.00 shall be due and payable.
The Association shall have a lien on each Condominium Parcel for
any unpaid Assessments, together with interest thereon, and against the
Unit Owner of such Condominium Parcel, together with a lien on all
tangible personal property located upon said Unit, The lien of the
Assessments proviii6d for in this Article VI shall be prior and superior to
all other liens except only (a) ad valorem taxes and (b) all sums unpaid
on the first mortgage to-SeCUre idebt of record. The sale or transfer of any
Unit shall not affedt .thd AsseSsinerits lien; provided, however, that the
sale or transfey of :firly::U* foreclosure-of a first-
Iiiiiitgage thereon, shall extinguish the hen or such Assessments as to
the payments thpreef. which became- due prior to such sale or transfer.
No sale or trart4foi., shall :Koff*, such Unit from liability for any
Assessments thor66tier't)Oc'Orile due Or frotn- the lien thereof. Reasonable
attorneys' fees inctitrod.`b)): the AsSoeiation incident to the collection of
such Assessment for the enforcement of such liens, together with all
sums advanced and paid by the Association for taxes and payments on
account of superior mortgages, liens, or encumbrances which may be
required to be advanced by the Association in order to preserve and
protect its lien, shall be payable by the Unit owner and secured by such
lien.
The Board of Directors may take such action as they deem
necessary to collect Assessments by personal action, or by enforcing and
foreclosing said liens, and may settle and compromise the same, if in the
best interests of the Association. The Association shalt be entitled to bid
at any sale held pursuant to a suit to foreclose an Assessment lien and to
apply, as a cash credit against its bid, all sums due the Association
covered by the lien enforced. In case of such foreclosure, the Unit Owner
shall be required to pay a reasonable rental for the Condominium Parcel,
and the plaintiff in such foreclosure shall be entitled to the. appointment
of a receiver to collect same from the Unit Owner and/or Occupant.
The Association 'shall have the right, in lieu of foreclosure, if it
deems prudent,.to: ake possesSion of said Condominium Unit and, offer
the same for rental, groin..the, proceeds :of such rental, if any, the
Association shall credit one-half of the . income therefrom to the
arrearages and in payinerit of the lien established by the default of the
said Parcel Owner, and to pay the other one-half to the association as its
charge for acting as rental agent.. The Association shall likewise, if
necessary; in order to carry out this right of rental, remove any travel
trailer in place on such Condominium Unit and place the same in
storage, all without liability to the Association. The-selection of this mode
10
March 2005 Restated Declaration
of procedure, in payment-of the 'lien established by said arrearages and
delinquencies, shall not be exclusive, and the Association may, at any
time, proceed in .foreclosure should it deem the ,same necessary,
expedient or prudent, and no question of judgement may be raised, as
this right of renting is an absolute right and a part of this Declaration.
Any purchaser through foreclosure of a first mortgage lien, by
either trustees sale.:or.,judicial:sale,• and either .the mortgagee or other
purchaser at any:si4ch,fereclosure'sale, shali,he.exempt from payment of
any Assessrnents;which.becarne due prior to-such foreclosure.
_Any, .other _p.ersow acquiring, the .real-property-interest-in-a- Unit-
shall not be entitled to occupariey of the Unit or enjoyment of the
Common Elements until such time as all unpaid Assessments due and
owing by the former Unit Owner have been paid, unless Texas State Law
provides otherwise.
ARTICLE VII.
PROVISIONS RELATING TO SALE OR RENTAL
OF CONDOMINIUM UNITS
No restrictions are placed herein as far as assigning any
Condominium Units. The Association, however, shall have until. March
20, 2072, the exclusive right, In the absence of use by the Owner, to rent
lots, which are a part of the Condominium as established by the
Declaration, at scheduled rates promulgated, from time to time, by the
Association. The Association shall retain, for its services, tendered in
operating the- rental program, fifty percent (50%) of the gross amount of
the rental collected on any lot, with the. remaining 50% reserved for the
benefit of the lot owner. As a-partial consideration for the aforesaid, the
Association shall under take an advertising program to promote the
rental of said Units, both-those Units, if any, owned by the association,
and those Units sold and in private ownership. This exclusive right of
the Association to. mil_lots_which ;are a part of the condominium as
established by the Oeclaration shall be.binding on each member, his
successors and assigns, and shall constitute a covenant running with
the title, whether leasehold or fee simple, of each Condominium Unit.
ARTICLE VIII.
INSURANCE PROVISIONS
A. Liability Insurance
The Board of Directors of the Association shall obtain Public
Liability and Property Damage insurance covering all of the Common
Elements and the Condominium Units owned by the Association, and
11
March 2005 Restated Recta raVon
insuring the Association and the -Unit Owners as its and their interest
appear, in such; an Aunts as the Board of Directors of the Association
may determine, from time to time, provided that the minimum amount of
coverage shall he $250,000/$500,000/$10,000. Said insurance shall
include, but not limit the same, to water damage, if available, legal
liability, hired automobile, non-owned automobile and off-premises
employee coverages. All liability insurance shall, if applicable, contain
cross-liability endorsement to cover liabilities of the Unit Owners as a
group to a Unit Owner. Premiums for. payment of such insurance shall be
paid by the Association and charged as a common expense.
B. Casualty Insurance
1. Purchase of Insurance. The Association shall obtain fire and
extended coverage insurance and vandalism and malicious mischief
insurance, insuring all of the insurable improvements owned by the
Association within the Condominium, including personal property owned
by the Association, in and for the interest of the Association, all Unit
Owners and their . mortgagees, as their interest may appear, in a
company acceptable to the standards set by the Board of Directors of the
Association, in an amount equal to the maximum insurable replacement
value, as determined annually by the Board of Directors of the
Association; the premiums for such coverage and other expenses in
connection with said insurance shall be paid by the Association and
charged as a common expense. The company or companies with whom
the Association .41-1411 place its. ;irlsijpartce coverage, as provided in this
Declaration, must,:.be good and. responsible companies authorized to do
business in the State of Texas.
2. Loss Payable Provisions, All policies purchased by the
Association shall be for, the benefit of the Association, all Unit Owners
and their mortgagees, if any, as their interests may appear.
A. Surplus: It shall be presumed that the first monies disbursed
in payment shall be made from the insurance proceeds; and if sty
there is, a balance in the- funds after payment of all costs of repair mn
and restoration such balance shall be distributed to the
Association's general fund.
CSI
B. Plans and Specifications. Any repair and restoration must be
substantially in accordance with the plans and specifications for
the original improvements, or according to the plans approved by,
the Board of Directors of the Association which approval shall not sac
iaa
be unreasonably withheld.
C Such other insurance shall be carried as the Board of Directors
12
March 2005 Restated Declaration
of the AssociatiOn Shall determine, •fiern time to time, to be
desirable.
D. Each individual Unit Owner shall. be responsible for purchasing
at such owner's expense, any additional liability insurance as such
owner may deem necessary to cover incidents occurring upon such
owner's own Unit and for the purchasing of insurance on such
owner's own personal property.
ARTICLE IX.
USE AND OCCUPANCY
1. All lotS, parcels or units which are designated on Exhibit "B" as
recreational vehicle sites shall be reserved and restricted for recreational
lots for vehicles in the following categories: Self-contained travel trailers,
park model trailers, fifth-wheel trailers and motor homes. Said vehicles
or trailers must be designated as a recreational vehicle by RVIA or FMCA.
All vehicles brought 'ineo the - Villa& as well- pis all construction in the
Village, must conform to.the Building Rules:and Regulations as- set forth
in the Rules and Regulations. Any vehicle or travel trailer brought into
the resort and not intended to be tied down or skirted must be kept in a
towing or driving condition at all times. Appropriately sized pleasure
boats will be permitted to remain at boat docks abutting certain Units
and boat trailers and boats will be allowed to be parked on doublewide
concrete pads. No tents, trailer tents, vans or campers that are not self-
contained will be allowed in the Village. No manufactured homes as
described in Article 5221F of the Texas Manufactured Housing Standard
Act will be permitted to be placed on any site. Only one (1) principal
recreational vehicle may be located or maintained on any lot.
2. No animals or fowl shall be kept or maintained on any Unit lot
except customary household pets, and then only on a leash. No signs of
any kind, other than name and lot number shall be displayed on any lot
Unit without the written consent of the Association, or its assigns or
successors.
3. An easement ten (10) feet in width is reserved along each of
the lot lines of each Unit lot for the installation and maintenance of
utility services, and it.is understood: that each such easement may be
used by the Association for such-installation and maintenance, as the
case may be. . ,
4 No outside toilkS shall be installed or allowed on any Unit lot
5. No nuisance_ shall be permitted on .the. Condominium Property,
nor any use or practice which is the source of annoyance to residents, or
13'
hlafeli 2005 Restated Oeciaratioe
which interferes with the peaceful possession of the property by its
residents. Ail parts of the property shall be kept in a clean and sanitary
condition, and no junk; rubbish, refuse, or garbage stiall be allowed to
accumulate, or any fire hazard allowed to exist.
6. No commercial activity of any kind whatsoever shall be
conducted on or from any Unit lot or parcel.
7. The Association.. shall, Jevy .and cPliect. a reasonable monthly
Assessment agaiript priit,plyn4r.,0.1f(icient. t9 cover each Unit Owner's
proportionate share ,Of the actual ,cost of maintaining and caring for each
Unit OWner's individUal • site :as well as_the,:actuai_cast_ of _operating—and
inairitaning all cormnpri use property and facilities, providing water,
electricity and garbage, disposal service, sewage service, general
maintenance and carrying out it's ditties hereunder as "Management."
Likewise, the Association shall include in the. Assessments so made the
sum adequate to pay all real property taxes on 'the Condominium Parcel,
as well as the Common Elements, unless the taxing authorities elect to
tax said properties in the manner provided in Article XIII. The collection
of these sums shall be provided for'in an adequate manner to assure the
maintenance necessary. The ASsestiments for expenses shall be levied in
accordance with Article III hereof and the By-Laws.
8, These restrictions .shall be considered as covenants running
with the land or real property interests and shall bind the purchasers of
all Units shown on the subdivision plat or plats subjected to this
Condominium regime, recorded or to be recorded, their heirs, executors,
administrators, successors or assigns; and if any of them shall violate
any of the covenants or restrictions herein contained, it shall be lawful
for any person or persons owning such Units to prosecute any
proceeding at law or: in equity against the person or persons violating or
attempting to violate any such_ covenant or restriction and, either to
prevent him or them from doing so, to recover damages for such
violation, including Oosts'.of..the*tit and a reasonable attorneys fee. Any
invalidation of any of these'covenar is and restrictions shall in no way
effect any other 'of the.p,roilision4lhOreof which shall thereafter remain in
full force and cffept.,., .
9. The Unit Owner shall not permit nor suffer anything to be done
or kept on such owner's Unit which will increase the rate of insurance on
the Condominium Property, which will obstruct or interfere with the
rights of other Unit Owners, or annoy them by unreasonable noises or
sights or otherwise; nor shall the Unit Owner commit or permit any
nuisance, immoral or illegal acts in or about the Condominium Property.
10. No person shall use the Common Elements or any part
14
March 245 Re slated Deearation
thereof, or a CotiabininiurtiVitif?cii- The dondOminiurn Property or any
part thereof, in 'aiiy•tni:tirrel'vedritr'at"to or: ffdt in accordance with such
rules and regulationS pertaining thereto, a'from time to time may be
promulgated•by the•AsSociation.
ARTICLE X.
MAINTENANCE AND ALTERATIONS
A. The Board. Of Directors of the Asociation may enter into a
contract with any firm, person or corporation for the maintenance and
repair of the Condominium Property, and may join with other
coadoininium-corporations in the. co6tracting-with-the-sante-firm7-pemart
or corporation for maintenance and repair.
The Board of Directors may likewise enter into a contract with the
owners of any public utility for the furnishing of such public services as
electricity, water or sewage disposal to the Condominium. This may
include the purchase by the Condominium of wholesale electricity or the
payment for the use of any sewage disposal plant. The Board of Directors
may likewise, from time to time enter into long term leases for the use of
such public service utilities or may purchase the same outright, and
thereafter the said facility may, by an amendment to this Declaration,
become a part of the common use elements.
B. Although the Association may construct additional facilities for
the benefit of theCondorniniUmil thereishall be•no material alterations or
substantial additions-to:. the Corairfon EleMents or Limited Common
Elements, except as proVided, hereinabove in Section A, or except as the
sate are authorized- by .the,•-Board of Directors and ratified by the
affirmative vote- of Voting Members casting not less than seventy-five
percent (75%) of the total votes 'of ,the members of the Association
present at any regular- Or special meeting of. the Unit Owners called for
that purpose; provided the aforesaid alterations or additions do not
prejudice the right of any Unit Owner unless said Unit Owner's consent
has been obtained. The cost of the foregoing by:the Association shall be iStel
assessed as Common Expenses'. Where any alterations or additions as ?)
aforedescribed are exclusively or. substantially exclusively for the benefit co
of the Unit Owners requesting same, then the cost of such alterations or Cri
additions shall be assessed against and collected solely from the Unit 8
Owners exclusively or substantially exclusively benefiting and the ow
air
Assessment shall be levied in such proportion as may be determined as
fair and equitable by the Board of Directors of the Association. Where
such alterations or additions exclusively or substantially exclusively YO
benefit Unit Owners requesting same, said alterations or additions shall
only be made when authorized by the Board of Directors and ratified by
not less than seventy-five percent (75%) of the total votes of the Unit
Lei
16
March 2005 Restated Daciarati6;1
Owners exclusively or substantially exelusiv,efy.. benefiting therefrom, and,
where said Unit Owners are ten or leSS, the approval of all but one shall
be required.
ARTICLE XL
TERMINATION
All of the Unit Owners collectively may terminate this
condominium regime and request the County Clerk of Cameron County,
Texas, to regroup or merge the records of the filial estates with the
principal property, provided that the filial estates are unencumbered, or,
if encumbeke4, that the ereditora_in whose behalf tho- encumbrances- arc-
recorded agree to accept as security the undivided portions of the
property owned by the debtors, The undivided interest in the property
owned in common which shall appertain to each Unit Owner shall be the
percentage of undivided interest previously owned by such owner in the
Common Elementb.- • ' • • '-
ARTICLE XII,
RETENTION :OF INTEREST
Intentionally Omitted as- No Longer Applicable
[NOTE: This Article in the original Outdoor Resorts/South Padre
Declaration dealt with certain rights reserved by the "Developer." The
Developer no longer exists, and there appears no evidence that the rights
reserved in this section were ever transferred to anyone prior to the
Developer's demise.)
ARTICLE XIII.
MISCELLANEOUS PROVISIONS
A. Escrow Account for Insurance and Certain Taxes,
There shall be established by the Association sind maintained in a
local, national or state bank ' or federal or state savings and loan
association, two (2) interest bearing savings deposit accounts in order to
accumulate suflioient monies for the following purposes:
1. To pay all-, insurance premiums for insurance on the
Condominium Property obtained and purchased by the Association
pursuant to Article V111 of this Declaration; and
2. To pay all real orpersonalproperty taxes assessed by the taxing
authorities Ftfored.esccibedfoy property-owned by the Condominium
or taxes which the Condominium is required to pay as part of its
March 2005 Ft a-slated Declaration
Common Expenses.
On or before the twenty-eighth (28th) day of .each month, the
Treasurer of the Association shall cause two (2) checks to be drawn on
the Association bank account, each check being equal respectively to
one-twelfth (1/ 12th) of the estimated yearly amounts as to Items 1 and 2
above. Said checks shall he' immediately deposited into the appropriate
savings deposit account.
Should a Condominium Unit Owner fail to pay that portion of the
monthly Assessment relating to Items 1 and 2 above within thirty (30)
days-from- -the- due- datei -the- A sso ci-atio n-shail-have111-e- rtghf> but ibis not
required, to advance the necessary funds so as to deposit the required
monthly sum into the savings deposit accounts.
The Association shall have a lien against the applicable
Condominium Unit for all sums so advanced, together with interest
thereon at the rate of 10% per annum. it shall also have the right to
assign its lien to any Unit Owner or group of Unit Owners or to any third
party. Said lien shall be subordinate to the lien of any Institutional
Mortgagee holding a first priority lien mortgage on a Condominium Unit.
The Condominium Unit Owners herein consent to the
establishment of such a lien- as a result of these advances in favor of the
institution or Association, as aforedescribed. However, no such
foreclosure action may be brought by said institution or individual or
group of individuals where the Association advances the necessary funds
and assigns its lien until the delinquent Unit Owner has received not less
than twenty one (21) dayS written notice in this regard,
B. The owner of the respective condominium Units shall not be
deemed to own pipes, wires, conduits, roads, sewage connections, etc., or
other public utility, lines running- through the Condominium Parcel or
Unit which are utilized by or serve more than one (1) Condominium Unit,
which items are by these presents made a part of the Common Elements.
C. With respect.to encroachments existing as of March 3, 1982,
the date of the Outdoor Resorts/South Padre Declaration, the owners of
the respective Condominium Units agreed that if any portion of a
Condominium Unit or Common Element or Limited Common Element
encroaches upon another, a valid easement for the encroachment and
maintenance of same, so long as it stands, shall and does exist.
D. No owner of a Condominium Parcel may exempt said owner
from liability for said owner's contribution toward the Common Expenses
by waiver of the use of and,enjoyrnent of any of the Common Elements,
17
March 2005 Restated Declarallon
or by the abandonment of said owner's Condominium Unit.
E. In the event that any. taxing authority, shall assess ad
valorem taxes on a Condominium Parcel, the Association will not assess
the member for real or personal property tax assessed against the
Condominium, nor will the Association maintain in the escrow account
for payment of same as set forth in Subparagraph "A" hereof. Nothing
herein shall be construed however, as giving to any Unit Owner the right
of contribution or any right of adjustment against any other Unit Owner
on account of any deviation by the taxing authorities for the valuations
herein prescribed, each Unit Owner to pay such ad valorem taxes and
special assessments Are____sepamtely—assessed--- against. his-
Co ndominium Parcel as set out hereinabove,
For the purpose of ad valorem taxation, the interest of the owner of
a "Condominium Parcel" in such owner's "Condominium Unit" and in the
"Common Elements" shall be considered as a unit. The value of said
unit shall be equal to the percentage of the value of the entire
Condominium, including land and improvements as has been assigned
to said Unit and as set forth in this Declaration. The total of all of said
percentages equals 100% of the value of all of the land and
improvements.
F. All provisions of this Declaration and Exhibits attached hereto
and amendments thereof shall be construed to be covenants running
with the land and of every part thereof and interest therein, including,
but not limited to, every Unit and appurtenances thereto, and every Unit
Owner and claimant of the property or. any part thereof or of any interest
therein, and his heirs, executors, administrators, successors and
assigns, shall be bound by all of the provisions of said Declaration and
Exhibits annexed hereto and amendments hereof.
G. If any provisions of this Declaration or of the By-Laws, or of the
Rules and Regulations, or of the Condominium Act, or any section,
sentence, clause, phrase or word, or the application thereof, in any
too
circumstances is held invalid, tile remainder of this Declaration, the By-
Laws, the Rules and Regulations, or the Condominium Act, and of the a,
application of any such provision, Section, sentence, clause, phrase or cr,
ta
word in other circumstances shall not be affected thereby.
ow
717C
11. Whenever notices are required to be sent hereunder, the same
may be delivered to Unit Owners, either personally or by mail, addressed RS
to such Unit Owners at their place of residence in the Condominium, C
I-. CI
unless the Unit Owner, has, by written notice.duly receipted for, specified
a different address. Proof of such mailing or personal delivery by the
Association shall be given by the affidavit of the person mailing or person -41;1
18
March 2005 Restated Declaration
delivering said notices. Notices to the Association shall be delivered by
U.S. Mail to the office of the Association at the following address:
•P.O. Box 695
Port Isabel, TX 78578
or other such places as designated by the Board of Directors.
Intentionally omitted as no longer applicable.
J, Intentionally oMitted as no longer applicable.
K. Intentionally omitted as no longer applicable
(NOTE: The foregoing paragraphs I, J and K in the original Outdoor
Resorts/South Padre Delearation dealt with certain rights reserved by
the "Developer." The Developer no longer exists, and there appears no
evidence that the rights reserved in these paragraphs were ever
transferred to anyone prior to the-Developer's demise.]
L. The Condominium Act of the State of Texas, shall be in full
force and effect. In addition thereto, should the Association find it
necessary to bring a Court action to enforce compliance with the law or
this Declaration, - the By-Laws, or the Rules and Regulations, upon
finding by the Court that the violation complained of is willful and
deliberate, the Unit Owner so violating shall reimburse the Association
for reasonable attorneys fees incurred by said Association in bringing
such action, as determined by the Court.
M. Whenever the context so requires, the use of any gender
shall be deemed to include all genders, and the use of the singular shall
include the plural, and the plural shall include the singular. The
provisions of the Declaration shall be liberally construed to effectuate its
purpose of creating a uniform plan for the operation of a condominium.
▪ ti
N. The captions used ,ih this Declaration and Exhibits annexed CP 0
hereto are inserted solely as a matter of convenience and shall not be 3-4 n
▪
relied upon and/or used in.,eonstruing the effect or meaning of any of the cr)
text of this Declaration or Exhibits annexed hereto.
ow
az=
0. If any tem, covenant, provision, phrase, or other element of
the Condominium Documents is held invalid or unenforceable for any ro
reason whatsoever such holding shall not be deemed to affect, alter, oc
sJo
modify, or impair in any manner whatsoever, any other term, provision,
covenant or element of the Condominium Documents.
GF
Oran
tn
19
March 2035 Restated Declaration
P. The Association specifically disclaims any intent to have
made any warranty or- representation in connection with the property or
the Conddminitini'DOCUMents, except as 'specifically set forth therein,
and no person - 01A11- rely upon any warranty or representation not so
specifically made tliprein; Any estimates of Common Expenses, taxes or
other charges are deemed accurate, but no warranty or guaranty is made
or intended, nor may one be relied upon.
Q. In the event that any utility service is separately charged by
the utility company to a Unit Owner by- individual meters, or otherwise,
then tha_U nit -Owner. shall-not-be-assessed- by- the-Association for-tlig
service.
R. The current Bylaws and Rules and Regulations of the
Association are separately recorded in the Official Records, Cameron
County.
ARTICLE XIV,
JOINDER AS MEMBER OF
LONG ISLAND OWNER'S ASSOCIATION, INC.
The Association shall join the Long Island Owner's Association,
Inc. ("LIOA") as a member 'of LIOA, which LIOA will own the Swing
Bridge, roadway and right of way to the Patrick Martin fence,. and that
the terms of such joinder is as follows:
A. The members of LIOA will be individuals, entities, or
corporations. or OsociatiOns, which Own or 'control land on Long Island.
B. The, tip`ynber. of votes to which each entity or person is
entitled will be based on the taxable value placed on their respective
parcels of land by the Cameron County Appraisal District. Each member
will have one vote based upon each $100.00 of valuation of their
property. so
ga
C. This Association (Long Island Village Owner's Association, at
Inc.) will cast collectively all of the votes designated to its members. is
ow
D. The membership acquired in LIOA shall be considered a
Common Element of Long Island Village, as such membership will give ri
the Long Island Village Owner's Association, Inc. and its members the
right to use the Swing Bridge and the said roadway and right of way. 1,-.
tr
E. This Association (Long Island Village Owner's Association,
to
20
March 2005 Restated Declaration
Inc.) shall have the power to levy assessments upon its members for its
share of the operation and maintenance of the Swing Bridge and roadway
as it would for the operation and maintenance of any other Common
Element pursuant to the March 2005 Restated Declaration and March
2005 Restated Bylaws of the Association.
F. This Association's Board of Directors, by and through its
President, shall have the power to execute any documents required for
the purposes of, carrying out this resolution, including the Joinder in the
Declaration of Agreement to Join in the Common Ownership,
Restoration, Preservation, Maintenance and Operation of the Long Island
IN WITNESS WHEREOF, LONG ISLAND VILLAGE OWNERS
ASSOCIATION, INC., acting by and through the undersigned, has caused
this March 2005 Restated Declaration of Covenants, Conditions and
Restrictions for Long Island Village, a Condominium, to be signed and
acknowledged for recording on this _ day of March in the Year 2005.
ATTEST: LONG ISLAND VILLAGE OWNERS ASSOCIATION, INC.
- . By:.
?)on ). President
Acknowledgments
State of Texas
County of Cameron
This instillment wai ackdowledged before me on this /0 day of h ,
2005, by Don Halbach, President of Long Island Village Owners Association, inc., a
Texas non-profit corporation, on behalf of said rporatio
601.
". Notary Publi n and for
VANESSA 1.. GARCIA Cameron County, Texas
notary Pub110, State 01 Taxis
My Comr,hss?on Eaptres
April 02, 2008
21
March 2005 Restated nectaralion
State of Texas
§
County of Cameron §
This instrument was acknowledged before me on this day of .41.0
2005, by LeRoy R. Mulch, Secretary of Long Island Village Owners Association, inc., a
Texas non-profit corporation, on behalf of said orporation.
(1AlobV").
Notary Publictrod for
YANESSA L. °ARM Cameron County, Texas
Not try_Pubde, State& Taxis
Convritadan EXP4105
fqazil
After recording, return to:
Ramona K. Kantack
The Rentfro Faulk Law Firm
185 E. Ruben M. Torres Sr. Blvd,
Brownsville, TX 76526
22
Ma cat 2005 Restated Declaration
MARCH 2005 RESTATED BYLAWS FOR
LONG ISLAND VILLAGE OWNERS ASSOCIATION, INC.
A CONDOMINIUM ASSOCIATION
WHEREAS, the Long Island Village Owners Association, Inc. (the
"Association") has filed a March 2005 Restated Declaration of Covenants,
Conditions and Restrictions for Long Island Village, a Condominium,
recorded as Document # /rep q 0 in the Official Records,
Cameron County, Texas (the "March 2005 Restated Declaration"), for
reasons stated therein and. as a result of certain Changes described
therein and incorporated herein by reference, concerning the following
Jf"t—
The real property described in Volume 14, Pages 691-705, and
in Volume 5271, page 53, of the Official Records, Cameron
County, Texas;
and
WHEREAS the Association previously amended the Bylaws for the
Association in the following amendments recorded in the Official Records
of Cameron County, Texas:
(a) amendment dated March 1, 1989, recorded in Volume 754,
Page 183-187;
(b} amendment dated March 28, 1991, recorded in Volume 1587,
Page 22-32;
(c) amendments adopted January 29, 2005, recorded as Document
#00007645 (the "January 2005 Amendments");
and
WHEREAS the Association, at its annual membership meeting held
March 5, 2005, approved an amendment to Article VII, and the addition
of Article XVII[, to the Bylaws for the Association (the "March 2005
Amendments"); and
WHEREAS the Association previously restated its Bylaws in the
Document #00041532 in Volume 10392, Page 140-158, in the Official
Records, Cameron County, Texas (the "Restated Bylaws"), in order to
state the Association's Rules and Regulations (that were originally
designated as Article XVII to the Bylaws) in another, separate document,
and to eliminate the confusion created by (a) attachment of the Bylaws to
the Declaration, which arc severable from the Declaration under Texas
law; (b) piecemeal amendments to the Bylaws recorded in the Official
March 2645 Restated Bylaws
Records of Cameron County, Texas; {c) references in the original Bylaws
that are no longer correct or applicable as a result of the Changes set
forth in the restated versions of the Declaration filed in the Cameron
County Official Records; (d) other references in the Bylaws to provisions
that did not exist; and (e) designation of the Rules and Regulations as
Article XVII to the Bylaws when different rules apply to amendment of
the Rules and Regulations than apply to amendment of the Bylaws or the
Declaration; and
WHEREAS the Association desires to further restate the Restated Bylaws
in their entirety in one document, in order (I) to include the January
2005 Amendments and the March 2005 Amendments in the complete.
bylaw-s—dtittlfarit lifed-TritheOTikiargecordeT and (2) to correct certain
errors inadvertantly made in restating the original Bylaws in the Restated
Bylaws document;
KNOW ALL MEN BY THESE PRESENTS: that these March 2005
Restated Bylaws for Long Island Village Owners Association, Inc. are
made on the date hereinafter set forth by the Association.
ARTICLE I. IDENTITY
The following March 2005 Restated Bylaws shall govern the
operation of the Condominium known as LONG ISLAND VILLAGE, a
Condominium described and named in the March 2005 Restated
Declaration to which these Bylaws pertain. LONG ISLAND VILLAGE
OWNERS ASSOCIATION, INC. is a Texas corporation not for profit,
organized and existing in compliance with Texas law, and the
Condominium Act, Chapter 81 of the Texas Property Code, which said
act has been adopted by reference in said Declaration.
Section I. The Office of the Association shall be at the Condominium
Property, or at such other places as may be designated by the Board of
Directors.
Section 2. The Seal of the Corporation, if created, shall bear the name of
the Corporation, the word "Texas, the words "Corporation Not for Profit,"
and the year of incorporation.
Section 3. As used herein, the word "Corporation" shall be the
equivalent of "Association," as defined in the March 2005 Restated
Declaration to which these Bylaws pertain, and all other words, as used
herein, shall have the same definition as attributed to them in the March
2005 Restated Declaration to which these Bylaws pertain.
2
March 2005 Restated tlytaws
ARTICLE H. MEMBERSHIP AND VOTING PROVISIONS
Section 1. Stock. The Corporation shall riot issue stock or certificates.
Section 2, Membership. Membership in the Corporation shall be limited
to owners of Condominium Units, as identified in the March 2005
Restated Declaration. Transfer of Unit ownership, either voluntary or by
operation of law, shall terminate membership in the Corporation, said
membership is to become vested in the transferee. If Unit ownership is
vested in more than one person, then all of the persons so owning said
Unit shall be members eligible to hold office, attend meetings, etc., but as
hereinafter indicateckthe vote pt a ynikshall_braast_b_y_the.1Noting--
tvrembe-i." If Unit ownership is vested in a corporation, said corporation
may designate an individual officer or employee of the corporation as its
'Voting Member." Any application for the transfer of membership, or for a
conveyance of an interest in, or to encumber or lease a Condominium
Parcel, where the approval of the Board of Directors of the Association is
required, as set forth in these March 2005 Restated Bylaws and the
March 2005 Restated Declaration to which they pertain, shall be
accompanied by an application fee in an amount to be set by the Board
of Directors to cover the cost of contacting the reference given by the
applicant, and such other costs of investigation that may be incurred by
the Board of Directors.
Section 3. Voting
(a) The owners) of each Condominium Unit shall be entitled to one
vote for each Condominium Unit owned. If a Condominium Unit Owner
owns more than one Unit said owner shall be entitled to one (I) vote for
each Condominium Unit owned,
(b) A majority of the Unit Owners' total votes shall decide any
question unless the March 2005 Restated Bylaws or March 2005
Restated Declaration provides otherwise, in which event the voting
percentage required in the March 2005 Restated Bylaws or the March
2005 Restated Declaration shall control.
ar
Section 4. Quorum. Unless otherwise provided in these March 2005
Restated Bylaws, the presence in person or by proxy of a majority of the
Unit Owners' total votes shall constitute a quorum. The term "majority" ow
of the Unit Owners total votes shall mean Unit Owners holding fifty-one
(51%) percent of the votes.
Section 5, Proxies. Votes may be cast in person or by proxy. All proxies
shall be in writing and signed by the person entitled to vote (as set forth
below in Section 6), and shall be filed with the Secretary prior to the
c.n*c
3
March 2005 Restercd Bylam
meeting in which they are to be used and shall be valid only for the
particular meeting designated therein, Wherein a Unit is owned jointly by
a husband and wife, and if they have not designated one of them the
Voting Member, a proxy must be signed by both husband and wife where
a third person is designated.
Section 6. Designation of Voting Member. If a Condominium Unit is
owned by one person, said person's right to vote shall be established by
the recorded title to the Unit. If a Condominium Unit is owned by more
than one person, the person entitled to cast the vote for the Unit shall be
designated in a certificate signed by all of the recorded owners of the Unit
and filed with the Secretary of the Association. If a Condominium Unit is
Dicfned -hy--a-cTarp-Madiri; Ths-effit-e-k OTeinliloYeethereof eiifEed to cast
the vote of the Unit for the corporation shall be designated in a certificate
for this purpose, signed by the President or Vice-President and attested
to by the Secretary or Assistant Secretary of the corporation, and filed
with the Secretary of the Association. The person designated in these
certificates who is entitled to cast the vote for a Unit shall be known as
the "Voting Member." If such a certificate is not on file with the Secretary
of the Association for a Unit owned by more than one person or by a
corporation, the vote of the Unit concerned shall not be considered in
determining the requirement for a quorum or for any purpose requiring
the approval of a person entitled to cast the vote for the Unit, except if
said Unit is owned by a husband and wife. Such certificates shall be
valid until revoked, or until superseded by a subsequent certificate, or
until a change in the ownership of the Unit concerned. If a Condominium
Unit is jointly owned by a husband and wife the following three
provisions are applicable thereto:
(a)They may, but they shall not be required to, designate a Voting
Member.
(b) If they do not designate a Voting Member, and if both are
present at a meeting and are unable to concur in their decision
upon any subject requiring a vote, they shall lose their right to vote stv
on that subject at that meeting. (As previously provided, the vote of so
a Unit is not divisible).
er
(c) Where they do not designate a Voting Member, and only one is
present at a meeting, the person present may cast the Unit vote, otn
pox-
just as though said owner owned the Unit individually, and
without establishing the concurrence of the absent person, ro
Gc
Ha
01-4
tO
4
March 2005 Re-staled Bylaws
ARTICLE III. MEETINGS OF THE MEMBERSHIP
Section 1, Place - All meetings of association membership shall be held
at the Condominium Property, or at such other place and time as shall
be designated by the Board of Directors of the Association and stated in
the Notice of Meeting.
Section 2. Notices It shall be the duty of the Secretary to mail a Notice
of each annual or special meeting, stating the time and place thereof to
each Unit Owner of record, at least fourteen (Iel-), but not more than
twenty-eight (28) days prior to such meeting. Notice of any special
meeting_shall state the cum= thereef..Altootices shalLbe_tnailed-to-nr--
served at the address of the Unit Owner as it appears on the books of the
Corporation.
Section 3. Order of Business - The order of business at annual
members' meetings, and, as far as practical, at all other members'
meetings, shall be:
(a) Election of Chairman of the Meeting
(b) Calling of the Roll and Certifying of Proxies
(c) Proof of Notice of Meeting or Waiver of Notice
(d) Reading and Disposal of any Unapproved Minutes
(e) Reports of Officers
(f) Reports of Committbes
(g) Election of Inspectors of Election
(h) Election of Directors
(i) Unfinished Business
() New Business
(k) Adjournment
Section 4. Annual Meeting - The annual meeting shall be held at the
Condominium Property on the first (lst) Saturday in March, and
thereafter on the first (1st) Saturday in March of each year, for the
electing of Directors and transacting other business authorized to be as
transacted by the members; provided, however, that if that day is a legal
holiday, the meeting shall be held at the same hour on the next secular
day following. At the annual meeting the members shall elect by a to
plurality vote (cumulative voting prohibited), a Board of Directors and
transact such other business as may be properly brought before the ow
meeting.
Section 5. Special Meeting - Special Meetings of the members for any NO
purpose or purposes, unless otherwise prescribed by statute or by the
Articles of Incorporation, may be called by the President, and shall be 1-•
called by the President or Secretary at the request, in writing, of a ',47)
S
March 2005 Restated Bylems
majority of the Board of Directors, or at the request, in writing, of Voting
Members representing a majority of the Unit Owners' total votes, which
request shall state the purpose or purposes of the proposed meeting.
Business transacted at all special meetings shall be confined to objects
stated in the notice thereof.
Section 6. Waiver and Consent - Whenever the vote of members at a
meeting is required or permitted by any provision of the statutes or of the
Articles of Incorporation, or of these March 2005 Restated Bylaws to be
taken in connection with any action of the Corporation, the meeting and
vote of members may be dispensed with if ail the members who would
have been entitled to vote upon the action.if such ateetingAwmteld,---.
—sfirilfconsent irl;iiitingio such action being taken.
Section 7. Adjourned Meeting - If any meeting of members cannot be
organized because a quorum of Voting Members is not present, either in
person or by proxy, the meeting may be adjourned from time to time
until a quorum is present.
Section B. Intentionally omitted.
Section 9. Approval or Disapproval of a Unit Owner upon any matter,
whether or not the subject of an Association meeting, shall be by the
"Voting Member"; provided, however, where a Unit is owned jointly by a
husband and wife and they have not designated one of them as a Voting
Member, their joint approval or disapproval shall be required where both
are present, or in the event only one is present, the person present may
cast the vote without establishing the concurrence of the absent person.
ARTICLE IV. DIRECTORS,
The Board of Directors shall consist of nine (9) members. At each
annual meeting, the directorships of those whose terms have expired
shall be elected from the voting members for a period of three years, it
being the intent that there shall be three directors at each annual
membership meeting for a period of three years. All members of the
Board of Directors shall be owners, in good standing, of a Condominium
Unit or the owner of an interest therein.
Section 1. - Board of Directors
(a) Intentionally omitted.
(b) The organizational meeting of a newly elected Board of Directors shall
be held within ten (10) days of their election at such place and time as
shall be fixed by the Directors at the meeting at which they were elected
and no further notice of the organizational meeting shall be necessary
providing a quorum shall be present.
6
March 2005 Restated Bylaws
Section 2. - Removal of Directors. At any duly convened regular or
special meeting, any one or more of the Directors may be removed with
or without cause by the affirmative vote of the Voting Members casting
riot less than a majority of the total of members in the Association, and a
successor may then and there be elected to fill the vacancy thus created.
Should the membership fail to elect said successor, the Board of
Directors may fill the vacancy in the manner provided in Section 3 below.
Section 3. - Vacancies on Directorate. If the office of any Director or
Directors becomes vacant by reason of death, resignation, retirement,
disqualification,_remoyal from office,..ototheriviae, a mejoriviCtha______.
remaining Directors, though less than a quorum, shall choose a
successor, or successors, who shall hold office until the next annual
meeting, at which time the membership will elect a replacement. The
election held for the purpose of filling said vacancy may be held at any
regular or special meeting of the Board of Directors.
Section 4. - Disqualification and Resignation of Directors. Any
Director may resign at any time by sending a written notice of such
resignation to the office of the Corporation delivered to the Secretary.
Unless otherwise notified therein such resignation shall take effect upon
receipt thereof by the Secretary. More than three (3) consecutive
absences from regular meetings of the Board of Directors, unless excused
by resolution of the Board of,Directors, shall automatically constitute a
resignation effective upon acceptance by the Board of Directors. In the
event a Director ceases to be an owner of a Condominium Unit or having
an interest therein, or in the event a corporate ownership ceases to be an
officer of said corporation, the directorship shall immediately and
automatically terminate, No member shall continue to serve on the Board
should said member be more than thirty (30) days delinquent in the
payment of an assessment and said delinquency shall automatically
constitute a resignation effective when such resignation is accepted by
the Board of Directors.
od
GO
Section 5, - Regular Meetings - The Board of Directors may establish a on
schedule of regular meetings to be held at such time and place as the 03
Board of Directors may designate. Notice of such regular meetings shall,
nevertheless, he given to each Director personally or by mail, telephone,
or telegraph, at least five (5) days prior to the day named for such am'
meeting.
1-6
PJ
Section 6. Special Meetings - Special meetings of the Directors may be 19‹
0
called by the President and must be called by the Secretary at the written s-,
request of one-third (lord) of the votes of the Board. Not less than five
(5) days' notice of the meeting shall be given personally or by mail, trl
10
7
Ninth ?DOS Rr-stated Bylaws
telephone or telegraph, which notice shall state, the time, place and
purpose of the meeting.
Section 7. Directors' Waiver of Notice - Before or at any meeting of the
Board of Directors, any Director may waive notice of such meeting and
such waiver shall be deemed equivalent to the giving of notice.
Attendance by a Director at any meeting of the Board shall be a waiver of
notice by said Director of the time and place thereof. If all the Directors
are present at any meeting of the Board, no notice shall be required and
any business may be transacted at such meeting.
Section S. Quorum - At all meetings of the Board of Directors
niajOfifii ZifThe DiFedikissWrel-Driiiiiiite a quorum for the transaction of
business, and the acts of the majority of the Directors present at such
meetings at which a quorum is present shall be the acts of the Board of
Directors. If, at any meeting of the Board of Directors, there ,be less than
a quorum present, the majority of those present may adjourn the
meeting from time to time. At each such adjourned meeting, any
business which might have been transacted at the meeting as originally
called may be transacted without further notice. The joinder of a Director
in the action of a meeting, by signing and concurring in the minutes
thereof, shall constitute the presence of such Director for the purpose of
determining a quorum.
Section 9. Compensation —The Directors' fees, if any, shall be
determined by the Voting Members.
Section 10. Powers and Duties - The Board of Directors shall have the
powers and duties necessary for the administration of the affairs of the
Corporation and may do all such acts and things as are not by law or by
the March 2005 Restated Declaration or by these March 2005 Restated
Bylaws directed to be exercised and done by the Unit Owners. Such
powers shall specifically include, but shall not be limited to, the
following:
(a) To exercise all powers specifically set forth in the March 2005
Restated Declaration, in these March 2005 Restated Bylaws, the
Articles of Incorporation of this Corporation, and in the
Condominium Act, and all powers incidental thereto.
(b) To make Assessments, and collect said Assessments, and use
and expend the Assessments to carry out the purposes and powers
of the Corporation,
(c) To employ, dismiss and control the personnel
necessary for the maintenance and operation of the project and of
8
March 2005 Rcataied Hylama
the common areas and facilities, including the right and power to
employ attorneys, accountants, contractors and other
professionals as the need arises.
(d) To make and amend regulations respecting the operation and
use of the Common Elements and Condominium Property and the
use and maintenance of the Condominium Units therein,
(e)To contract for the management of the Condominium and to
designate to such contractor all of the powers and duties of the
Association, except those which may be required by the March
005 Restated DeclarAtion tolaye-the_approxaLof_the-Boatd-of--
Directors or membership of the Association,
(I) To designate one or more committees, which, to the extent
provided in the resolution designating such committee, shall have
the powers of the Board of Directors in the management of the
business and affairs of the Corporation. Such committee shall
consist of at least three (3) members of the Corporation, one of
whom shall be a Director. The committee or committees shall have
such name(s) as may be determined to be needed and one member
of the committee shall keep regular minutes of their proceedings
and report the same to the Board of Directors as required.
(g)To use and disburse the proceeds of Assessments in the
exercise of its powers and duties.
(h) The maintenance, repair, replacement and operation of the
Condominium Property.
(i)The reconstruction of improvements after casualty and the
further improvement of the property.
(j)To enforce, by legal means, the provisions of the Condominium
Documents, the Articles of Incorporation, the March 2005 Restated
Bylaws of the Association, and the regulations for the use of the
property in the Condominium.
(k) To pay taxes and assessments which are liens against any part
of the Condominium other than individual Units and the
appurtenances thereto, and to assess the same against the Units
subject to such liens.
(I) To pay all the cost of all power, water, sewer and other utility
services rendered to the Condominium and not billed to owners of
individual Units.
9
March 2045 Restated Bylaws
The foregoing powers shall be exercised by the Board of Directors or its
contractor or employees subject only to approval by Unit Owners when
such is specifically required.
ARTICLE V. OFFICERS
Section I. Elective Officers. The principal officers of the Corporation
shall be a President, a Vice President, a Secretary and a Treasurer, all of
whom shall be elected by the Board of Directors. One person may not
hold more than one of the aforesaid offices, except one person may be
b-o th-S retarrand Tfeasturer. 'The Pfaiaeht-and
members of the Board of Directors. No person shall serve as President
unless such person shall have served on the Board of Directors for at
least one year immediately prior to such person's appointment as
President or Vice-President.
Section 2. Election - The officers of the Corporation designated in
Section 1 above shall be elected annually by the Board of Directors, at
the organizational meeting of each new Board following the meeting of
the members.
Section 3. Appointive Officers - The Board may appoint an Assistant
Secretary and an Assistant Treasurer and such other officers as the
Board deems necessary.
Section 4. Term - The officers of the Corporation shall hold office until
their successors are chosen and qualify in their stead. Any officer elected
or appointed by the Board of Directors may be removed at any time, with
or without cause, by the Board of Directors, provided, however, that no
officer shall be removed except by the affirmative vote for removal by a
majority of the whole Board of Directors (e.g. if the Board of Directors is
composed of nine persons, then five of said Directors must vote for pa
removal). If the office of any officer becomes vacant for any reason, the po
vacancy shall be filled by the Board of Directors. 15.
Section 5. The President shall be the chief executive officer of the
ow
Corporation and shall preside at all meetings of the Unit Owners and of
the Board of Directors. The President shall have executive powers and
general supervision over the affairs of the Corporation and other officers. 1.1)
C
The President shall sign all written contracts to perform all of the duties I-.
1-+
incident to the office and which may be delegated from time to time by
the Board of Directors.
Ui
No
te
10
March 2011.5 Restated Byd oats
Section 6. The Vice President shall perform all of the duties of the
President, in the President's absence or disability and such other duties
as may be required from time to time by the Board of Directors.
Section 7. The Secretary shall issue notices of all Board of Directors'
meetings and all meetings of the Unit Owners; shall attend and keep the
minutes of the same; and shall have charge of all of the Corporation's
books, records and papers except those kept by the Treasurer. The
Secretary shall have custody of the seal of the Association. The Assistant
Secretary shall perform the duties of the Secretary when the Secretary is
absent or incapacitated.
Section 8. The Treasurer shall:
(a) Have custody of the Corporation funds and securities and shall
keep full and accurate accounts of receipts and disbursements in
books belonging to the Corporation and shall deposit all monies
and other valuable effects in the name of, and to the credit of, the
Corporation in such depositories as may be designated from time
to time by the Board of Directors. The books shall reflect an
account for each Unit in the manner required by the Condominium
Act of the State of Texas, Chapter 81 of the Texas Property Code,
as amended.
(b) Disburse the funds of the Corporation as may be required by
the Board in accordance with these March 2005 Restated Bylaws,
making proper vouchers for such disbursements, and shall render
to the President and Board of Directors at the regular meeting of
the Board of Directors, or whenever said Board of Directors may
require it, an account of all of transactions made by said Treasurer
and of the financial condition of the Corporation,
(c) Collect the Assessments and promptly report the status of
collections and of all delinquencies to the Board of Directors.
(d) Give status reports to potential transferees upon which the
transferees may rely.
(e) The Assistant Treasurer shall perform the duties of the
Treasurer when the Treasurer is absent or incapacitated.
March 2005 ResWed Bylaws
ARTICLE VI. FISCAL MANAGEMENT
Section 1. Depositories - The funds of the Corporation shall be
deposited in such banks and depositories as may be determined by the
Board of Directors from time to time, upon resolutions approved by the
Board of Directors, and shall be withdrawn only upon checks and
demands for money signed by such officer or officers of the Corporation
as may be designated by the Board of Directors. Obligations of the
Corporation shall be signed by at least two officers of the Corporation.
Section 2. Fidelity Bonds - The Treasurer and all officers who are
authorized to sign checks, and all officers and employees of the
Asso-ciation -a-rid any contractor ha-haling or respon—iiiireibr Association
funds, shall be bonded in such amount as may be determined by the
Board of Directors. The premiums on such bonds shall be paid by the
Association. The bond shall be in an amount sufficient to equal the
monies an individual handles or has control via a signatory or a bank
account or other depository account.
Section 3. Fiscal Year - The fiscal year for the Corporation shall begin
on the first day of January or each year; provided, however, that the
Board of Directors is expressly authorized to change to a different fiscal
year in accordance with the provisions and regulations from time to time
prescribed by the Internal Revenue Code of the United States of America,
at such time as the Board of Directors deems it advisable.
Section 4. Determination of Assessments.
(a) The Board of Directors of the Corporation shall fix and
determine, from time to time, the sum or sums necessary and adequate
for the Common Expenses of the Condominium Property.
Common Expenses shall include expenses for the operation,
maintenance, repair or replacement of the Common Elements and the
Limited Common Elements, costs of carrying out the power and duties of
the Corporation; all insurance premiums and expenses relating thereto,
including fire insurance and extended coverage, and any other expenses
designated as Common Expenses from time to time, by the Board of
Directors of the Corporation. The Board of Directors is specifically
empowered, on behalf of the Corporation, to make and collect
Assessments, and to maintain, repair and replace the Common Elements
and the Limited Common Elements of the Condominium. Funds for the
payment of Common Expenses shall be assessed against the Unit
Owners in the proportions of percentages of sharing Common Expenses
as provided in the Declaration. Said Assessment shall be payable as
ordered by the Board of Directors. Special Assessments, should such be
12
March 2005RCM a IV d }VW.-
required by the Board of Directors, shall be levied in the same manner as
hereinbefore provided for regular Assessments, and shall be payable in
the manner determined by the Board of Directors,
(b) When the Board of Directors has determined the amount of any
assessment, the Treasurer of the Corporation shall mail or present to
each Unit Owner, a statement of said Unit Owner's Assessment. All
Assessments shall be payable to the Treasurer of the Corporation and,
upon request, the Treasurer shall give a receipt for each payment made
to him/her.
_(c)___ The ownersta .) be_bille_don-aquarterly_basis for
Assessments. The amount of the quarterly Assessment shall be due on
the 10th day of the month next following the month in which the
statement for the quarterly Assessment is mailed. If such quarterly
Assessment is not paid by the 2501 day of such month then in that event
a penalty of ten percent (10%) per annum shall be imposed on the
unpaid balance. When an account is sixty (60) days past due, it shall be
forwarded to the attorneys for the Corporation for collection. In the event
such account is not paid within ninety (90) days, a non-judicial
foreclosure proceeding shall be instituted against the delinquent Unit, or
a lawsuit filed for collection of the Assessment, or both.
Suction 5. Application of Payments and Co-Mingling of Funds - All
sums collected by the Association from Assessments may be co-mingled
in a single fund, or divided into more than one fund, as determined by
the Board of Directors. All Assessment payments by a Unit owner shall
be applied as to interest, delinquencies, costs and attorneys' fees, other
charges, expenses or advances, as provided herein and in the March
2005 Restated Declaration, and general or special Assessments in such
manner as the Board of Directors determines in its sale discretion.
Section 6. Annual Audit - An audit of accounts of the Association shall
be made annually by a Certified Public Accountant and a copy of the
report shall be available for inspection by the members of the Office of
the Association, not later than three months after the end of the year for
which the report is made.
Section 7. Acceleration of Assessment Installments Upon Default - If
a Unit Owner shall be in default in the payment of an installment upon
any Assessment, the Board of Directors may accelerate the remaining
monthly installments for the fiscal year upon written notice thereof to the
Unit Owner, and, thereupon, the unpaid balance of the Assessment shall
become due upon the date stated in the notice, but not less than fifteen
(15) days after the delivery of or mailing of said notice to each Unit
Owner.
13
March 2005 Restated Bylassa
Section 8. Foreclosure of Lien.
(a) The lien for assessments herein provided for may be foreclosed,
without prejudice and subject to the aforesaid prior liens by the holder
thereof in the same manner as either a Vendor's Men, or as is provided
for foreclosure of a contractual Deed of Trust lien on real property under
Texas Property Code, Section 51,001 et seq, The corporation (association)
shall have the power to appoint a person as Trustee for the purpose of
any foreclosures pursuant to this Section, and such Trustee shall have
all of the powers and duties as would a Trustee appointed pursuant to a
Texas Deed of Trust and conducting a sale of real_propertysuant to
Ze-d-tivii----st.m2, Texas Property Code. ----
(b) The Association shall have the power to bid on the Unit
foreclosed upon at any foreclosure sale, and to acquire, hold, lease,
mortgage and convey the same in behalf of the Association. The
Purchaser acquiring title to such Unit at any such foreclosure sale,
whoever Purchaser may be, and such Purchaser's heirs, successors and
assigns, shall not be liable for the share of the unpaid Common
Expenses or Assessments by the Association chargeable to such Unit
which became due prior to acquisition of such title at such foreclosure
sale, but such Common Expenses shall be collectable from all the owners
in this project, including such Purchaser or Acquirer, their heirs,
successors and assigns, on a pro rata basis, to the extent not recovered
from the proceeds of such foreclosure sale.
(c) The Association shall have the power to terminate any common
electric utilities and water for nonpayment of Assessments. in the event
Assessments for a Condominium Unit become past due for thirty days
(30) the Board may cause the common electric utilities and water to such
Unit to be terminated until such time as such Assessments plus interest
are paid. The Unit shall also be assessed the expense of such termination
and re-connection of such utilities.
ARTICLE VII. SUBSTANTIAL ADDITIONS OR ALTERATIONS
There shall be no substantial additions or alterations to the
Common Elements or Limited Common Elements by the Association
unless the same are authorized by the Board of Directors and ratified by
the affirmative vote of the Voting members casting not less than 75% of
the total votes of the Unit Owners present at any regular or special
meeting of the Unit Owners called for that purpose, and provided that
such amendment may not alter or destroy a Unit or a Limited Common
Element without the consent of the Unit Owner(s) affected and their
respective first lien mortgagees.
4
Marsh 2005 Restated Oyiaws
ARTICLE VIII, COMPLIANCE AND DEFAULT
Section 1. Violations - In the event of a violation (other than the non-
payment of an Assessment) by the Unit Owner in any of the provisions of
the March 2005 Restated Declaration, of these March 2005 Restated
Bylaws, of the Rules and Regulations, or of the applicable portions of the
Condominium Act, the Association, by direction of its Board of Directors,
may notify the Unit Owner by written notice of said breach, transmitted
by mail, and if such violation shall continue for a period of thirty (30)
days from the date of the ,noticeLthe Association, through its Boardof.,,
birectoti, shall have the right to treat such violation as an intentional
and inexcusable material breach of the March 2005 Restated
Declaration, of the March 2005 Restated Bylaws, of the Rules and
Regulations, or of the pertinent provisions of the Condominium Act, and
the Association may then, at its option, have the following election:
(1) An action at law to recover for its damage on behalf of the
Association, on behalf of the other Unit Owners;
(2) An action in equity to enforce performance on the part of the
Unit Owner;
(3) An action in equity for such equitable relief as may be
necessary under the circumstances, including injunctive relief.
Upon a finding by the court that the violation complained of is
willful and deliberate, the Unit Owner so violating shall reimburse
the Association for reasonable attorneys fees incurred by it in
bringing such action. Failure on the part of the Association to
maintain such an action at law or in equity within thirty (30) days
from date of a written request, signed by a Unit Owner, sent to the
Board of Directors, shall authorize any Unit Owner to bring an
action in equity or suit at law on account of the violation, in the
manner permitted by law, Any violations which are deemed by the
Board of Directors to be a, hazard to public health, may be
corrected immediately as an emergency matter by the Association,
and the cost thereof shall be charged to the Unit Owner as a
specific item which shall be a lien against said Unit with the same
force and effect as if the charge were a part of the Common
Expense.
Section 2. Negligence or Carelessness of Unit Owner - All Unit Owners
shall be liable for the expense of any maintenance, repair or replacement
rendered necessary by such owner's act, neglect or carelessness, or by
that of any member of such owner's family or guests, employees, agents
15
Mardi 2005 Restated By-lava
or lessees, but only to the extent that such expense is not met by the
proceeds of insurance carried by the Association, if any. Such liability
shall include any increase in insurance rates occasioned by use, misuse,
occupancy or abandonment of any Unit or its appurtenances. Nothing
herein contained shall be construed so as to modify any waiver by
insurance companies of rights of subrogation. The expense for any
maintenance, repair or replacement required, as provided in this section,
shall be charged to said Unit Owner as a specific item which shall be a
lien against said Unit with the same force and effect as if the charge were
a part of the Common Expense. Said lien shall be subordinate to the lien
of any institutional first mortgage on a given Condominium Unit.
ciao 3.'Cosfs anti Attaxna'y`s Fees in any proceeding arising
because of an alleged default by a Unit Owner, the prevailing party shall
be entitled to recover the costs of the proceeding and such reasonable
attorney's fees as may be determined by the court.
Section 4. No Waiver of Rights - The failure of the Association or of a
Unit Owner to enforce any right, provision, covenant or condition which
may be granted by the Condominium Documents shall not constitute a
waiver of the right of the Association or Unit Owner to enforce such right,
provision, covenant or condition of the future.
Section 5. No Election of Remedies - All rights, remedies and privileges
granted to the Association or Unit Owner pursuant to any terms,
provisions, covenants or conditions of the Condominium Documents,
shall be deemed to be cumulative and the exercise of any one or more
shall not be deemed to constitute an election of remedies, nor shall it
preclude the party thus exercising the same from exercising such other
and additional rights, remedies or privileges as may be granted to such
other party by the Condominium Documents, or ay law, or in equity.
ARTICLE IX. ACQUISITION OF UNITS.
(a) At any foreclosure sale of a Unit the Board of Directors may,
with the authorization and approval, by the affirmative vote of Voting
Members casting no less than three-fourths of the total votes of the Unit
Owners, wherein said matter is voted upon, acquire in the name of the
Corporation or its designee, a Condominium Parcel being foreclosed. The
term "foreclosure" as used in this section shall mean and include any
foreclosure of any lien, except a lien for Assessments. The power of the
Board of Directors to acquire a Condominium Parcel at any foreclosure
sale shall never be interpreted as any requirement or obligation on the
part of the Board of Directors or the Corporation, to do so at any
foreclosure sale, the provisions hereof being permissive in nature and for
16
Much 70,35 Restated klylaya
the purpose of setting forth the power in the Board of Directors to do so
should the requisite approval of the Voting Members be obtained.
(b) At a foreclosure sale for Assessments, the Board of Directors
shall have the power to acquire, without the prior approval of the owners,
in the name of the Corporation or its designee, a Condominium Parcel
being foreclosed upon for delinquent Assessments, and shall have the
power to bid up to the amount of such Assessments, the reasonable
attorney fees and expenses for the collection of same, and any other
sums due for which the Corporation has a Lien.
ARTICLE X. AMENDMENTS TO BYLAWS
Subject to the provisions of ARTICLE XVI, SECTION 5, hereof,
these Bylaws may be altered, amended or added to at any duly called
meeting of the Unit Owners, provided:
(1) Notice of the meeting shall contain a statement of the proposed
amendment.
(2) If the amendment has received the unanimous approval of the
full Board of Directors, then it shall be approved upon the
affirmative vote of the Voting Members casting a majority of the
total votes of the Unit Owners.
(3) If the amendment has not been approved by the unanimous
vote of the Board of Directors, then the amendment shall be
approved by the affirmative vote of the Voting Members casting not
less than three-fourths (3/ 40 ) of the total votes of the Unit
Owners.
(4) Said amendment shall be recorded and certified as required by
law.
(5) No amendment shall be passed which shall impair or prejudice
the Association's rental rights under Section VII of the Declaration.
ARTICLE XI. NOTICES.
Whatever notices are required to be sent hereunder shall be
delivered or sent in accordance with the applicable provisions for notices,
as set forth in the March 2005 Restated Declaration to which these
March 2005 Restated Bylaws pertain.
7
March 2005 Reitatcd Bylava
ARTICLE XII. INDEMNIFICATION
The Corporation shall indemnify every Director and every Officer,
and their heirs, executors and administrators, against all loss, cost and
expenses reasonably incurred in connection with any action, suit or
proceeding to which said Director or Officer may be a party, by reason of
their being or having been a Director or Officer of the corporation,
including reasonable counsel fees to be approved by the Corporation,
except as to matters wherein said Director or Officer shall be finally
adjudged In such action, suit or proceeding to be liable for or guilty of
gross negligence or willful misconduct. The foregoing rights shall be in
addition to and not exclusive of all other delta to which such Dire_ctoror
-0-111C-er may Tie 'entitled
ARTICLE XIII. LIABILITY SURVIVES TERMINATION OF
MEMBERSHIP
The termination of membership in the Condominium shall not
relieve or release any such former member or owner from any liability or
obligations incurred under or in any way connected with the
Condominium during the period of such ownership and membership, or
impair any rights or remedies which the Association may have against
such former owner and member arising out of or in any way connected
with such ownership and membership, and the covenants and
obligations incident thereto.
ARTICLE XIV, LIMITATION OF LIABILITY
Notwithstanding the duty of the Association to maintain and repair
parts of the Condominium Property, the Association shall not be liable
for injury or damage caused by a latent condition in the property, nor for
injury or damage caused by the elements, or by other owners or persons.
ARTICLE XV. PARLIAMENTARY RULES
Roberts Rules of Order (latest edition) shall govern the conduct of
the Association meetings when not in conflict with the Condominium Act,
March 2005 Restated Declaration or these March 2005 Restated Bylaws.
18
March 2405 Restatcd13ylax
ARTICLE XVI. LIENS
Section I. Protection of Property - Ali liens against a Condominium
Unit, other than for permitted mortgages, taxes, or special ad valorem
assessments, shall be satisfied or otherwise removed within thirty (30)
days of the date the lien attaches. All taxes and special ad valorem
assessments upon a Condominium Unit shall be paid before becoming
delinquent, as provided in these Condominium Documents, or by law,
whichever is sooner.
Section 2. Notice of Lien - A Unit Owner shall give notice to the
Association of every lien uponhisQitRther tha,tAforpermitted______
mortgages, taxes and,special ad valorem assessments, or said Article
VIII, Section 2 liens, within five (5) days after the attaching lien.
Section 3. Notice of Suit - Unit Owners shall give notice to the
Association of every suit or other proceeding(s) which will or may affect
title to said owner's Unit or any other part of the property, such notice to
be given within five (5) days after the Unit Owner receives notice thereof.
Section 4. Failure to comply with this Article concerning liens will not
affect the validity of any judicial sale.
Section 5. Permitted Mortgage Register - The Association shall
maintain a register of all permitted mortgages and at the request of a
mortgagee the Association shall forward copies of all notices for unpaid
assessments or violations served upon a Unit Owner to said mortgagee.
ARTICLE XVII. RULES AND REGULATIONS - Intentionally Omitted
from these Bylaws and now set forth and recorded as a separate
document titled March 2005 Restated Rules and Regulations.
ARTICLE XVIII. CONFLICT WITH ORIGINAL BY-LAWS
In the event of any conflict between these March 2005 Restated
By-Laws for Long Island Village Owners Association, Inc., a
Condominium Association, and the original Bylaws for Outdoor
Resorts/South Padre, a Condominium, these March 2005 Restated
Bylaws shall prevail.
19
March 2005 Restated Bylaws
APPROVED AND DECLARED on this day of
in the Year 2005, AS THE MARCH 2005 RESTATED BYLAWS OF LONG
ISLAND VILLAGE OWNERS' ASSOCIATION, INC., A Texas non-profit
corporation.
LONG ISLAND VILLAG OWNERS ASSOCIATION, INC.
BY_
Don Halbach, President
ATTEST:
vee
ulch, Secretary
Acknowledgments
State of Texas
County of Cameron
This instrument was acknowledged before me on this )0 day of March, 2005,
by Don Halbach, President of Long Island VII age Owners ssociation, Inc., a Texas
non-profit corporation, on behalf of said co ion.
otary Pu n and for
VANESSA L. GARCIA. Cameron County, Texas
Notary Fab lC State of Texas
My Commission Explies
State of ' J April 02,2003
County of Cameron §
This instrument was acknowledged before me on this 10 day of March, 2005,
by LeRoy R. Mulch, Secretary of Long Island Villa e Owners Association, Inc., a Texas
non-profit corporation, on behalf of said corpor Hon.
Notary Public in' d for
YANESSA L GARCIA Cameron County, Texas
Notary Pattie,, State of Texas
My Commission Expires
Apill 02, 2003
After recording, retur_rt to:
Ramon;k. Kantack
The Rentfro Faulk Law Firm
185 E. Ruben M. Torres Sr. Blvd.
Brownsville, TX 78526
20
Marsh 2005 Restated Bylaws