Greatwood Community Association, Inc. v. Prince David Ofor ( 2012 )

Opinion issued November 29, 2012
In The
Court of Appeals
For The
First District of Texas
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NO. 01-11-00509-CV
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GREATWOOD COMMUNITY ASSOCIATION, INC., Appellant
V.
PRINCE DAVID OFOR, Appellee
On Appeal from the 268th District Court
Fort Bend County, Texas
Trial Court Case No. 09-DCV-173840
MEMORANDUM OPINION
Appellant Greatwood Community Association, Inc. sued Appellee
homeowner Prince David Ofor, complaining of (1) unpaid homeowners’
association dues and (2) ongoing violations of Greatwood deed restrictions
governing the upkeep of homes. Greatwood moved for traditional summary
judgment on both claims. The trial court granted part of the requested relief on the
claim related to homeowners’ association dues, denied all the relief requested
related to the upkeep of Ofor’s home, and signed a final summary judgment. We
reverse and remand.
A. Background
Ofor owns a house in Greatwood that is subject to the Declaration of
Covenants, Conditions and Restrictions for Greatwood Subdivisions, recorded in
the Fort Bend County Deed Records. These restrictions impose an annual
maintenance charge and allow for special assessments. Through the restrictions,
Greatwood retains a vendor’s lien to secure required payments. The restrictions
also provide that homeowners must “prevent the development of any unclean,
unhealthy, unsightly, or unkempt condition on his or her Unit . . . .”
1. Greatwood’s claims and motion for summary judgment
Greatwood sued Ofor, claiming he violated the deed restrictions in two
ways. First, Greatwood alleges that Ofor failed to pay required maintenance fees
and assessments. As relief, Greatwood requested an award of (1) unpaid fees and
assessments, (2) interest, (3) attorney’s fees, and (4) establishment and foreclosure
of a vendor’s lien.
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Second, Greatwood alleged that Ofor violated the prohibition on unsightly
and unkept conditions by allowing mold to grow on the right side of his house. As
relief, Greatwood requested (1) a permanent injunction compelling Ofor to remove
the mold, (2) an award of $200 per day for at least a ten-day period that Ofor failed
to bring property into compliance with the deed restrictions, and (3) attorney’s
fees.
Ofor filed a general denial and request for attorney’s fees. Greatwood then
moved for traditional summary judgment on its claims and requested relief. Ofor
did not file a response.
2. The trial court’s judgment
After a summary-judgment hearing, the trial court signed an order entitled
“Final Summary Judgment.” In that order, the court granted part, but not all, of the
requested relief related to the delinquent maintenance fees and assessments.
Specifically, the court awarded to Greatwood $1,291.95 for “delinquent
assessments, late fees and collection costs,” $1,000 in trial attorney’s fees (as well
as additional conditional appellate attorney’s fees), costs of court and post
judgment interest. The court denied Greatwood’s request for foreclosure on its
lien. The judgment denied all relief on Greatwood’s claim that the mold allegedly
growing on Ofor’s house violated the deed restrictions.
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The final paragraph of the Final Summary Judgment contained the following
recitation:
IT IS ORDERED that all relief requested in this case and not
expressly granted is denied. This is a final judgment, for which let
execution and all writs and processes necessary to enforce this
judgment issue. This judgment finally disposes of all claims and all
parties and is appealable.
Greatwood filed a motion for new trial, which was overruled by operation of
law. Greatwood then timely brought this appeal.
ISSUES ON APPEAL
Greatwood argues on appeal that the court erred “when it granted Final
Summary Judgment which struck the majority of relief requested by Appellant in
its lawsuit.” It requests that this Court “modify the trial court’s Final Summary
Judgment to be consistent with the relief request and evidence presented in
Plaintiff’s Motion for Summary Judgment.” “Alternatively, Appellant requests
that this Court . . . vacate and reverse the trial court’s Final Summary Judgment
and remand this case for further proceedings.”1
ANALYSIS
A plaintiff moving for traditional summary judgment has the burden of
conclusively establishing each element of its claim. TEX. R. CIV. P. 166a(c); Zurita
v. Lombana, 322 S.W.3d 463, 471 (Tex. App.—Houston [14th Dist.] 2010, pet.
1
Ofor did not file an appellee’s brief.
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denied). In this case, Greatwood moved for traditional summary judgment on all
of its claims, and the trial court granted in part, and denied in part, Greatwood’s
motion. The trial court’s order was thus a partial summary judgment.
Generally, absent express statutory authority providing otherwise, the denial
of summary judgment relief is interlocutory and not appealable. E.g., City of
Houston v. Kilburn, 838 S.W.2d 344, 345 (Tex. App.—Houston [14th Dist.] 1992),
writ denied, 849 S.W.2d 810 (Tex. 1993) (per curiam); New York Underwriters
Ins. Co. v. Sanchez, 799 S.W.2d 677, 678–79 (Tex. 1990). Nonetheless, a
judgment is final for purposes of appeal if it either actually disposes of all claims
and issues, or if it clearly and unequivocally states that it is a final judgment that
disposes of all claims and all parties. Lehmann v. Har-Con Corp., 39 S.W.3d 191,
205 (Tex. 2001); In re Campbell, 101 S.W.3d 664, 667 (Tex. App.—Houston [1st
Dist.] 2003, orig. proceeding). Here, despite the interlocutory nature of the relief
awarded, the trial court’s summary-judgment order was rendered final and
appealable by inclusion of “Final” in the title coupled with language within the
order declaring that it “finally disposes of all claims and all parties and is
appealable.” See Lehmann, 39 S.W.3d at 206 (“A statement like, ‘This judgment
finally disposes of all parties and all claims and is appealable,’ would leave no
doubt about the court’s intention” that the judgment be final and appealable).
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We reverse and remand the case for further proceedings because the trial
court erred by granting a final judgment denying Greatwood’s claims and relief
sought based on its determination that Greatwood failed to carry its burden of
establishing its entitlement to summary judgment on those claims.
CONCLUSION
We reverse and remand for further proceedings consistent with this
opinion.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Bland and Huddle.
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