KENNETH D. EICHNER, P.C., Appellant
BEN DOMINGUEZ, II, PARC CONDOMINIUM ASSOCIATION, AND ASSOCIATION MANAGEMENT INC., Appellees
Appeal from the 125th District Court Harris County, Texas
Trial Court Cause No. 2013-21379
consists of Justices Christopher, Busby, and Jewell.
multi-party dispute centers on the priority of competing
liens against a foreclosed condominium. In a previous
lawsuit, the condominium association foreclosed on a lien
against the condominium due to the owner's non-payment of
fees. The condominium owner, Ben Dominguez, II, then filed
the present suit against the condominium association for
wrongful foreclosure. Dominguez's accounting firm,
Kenneth D. Eichner, P.C., intervened in the suit, asserting
lien rights of its own allegedly acquired under a promissory
note for services rendered to Dominguez and secured by
Dominguez's condominium. The accounting firm's
petition in intervention asserted a contract claim against
Dominguez for his default on the note and asserted rights
against all parties under the firm's purportedly superior
lien. The condominium association argued that its lien, not
the accounting firm's lien, was superior and that the
previous foreclosure had extinguished the firm's lien.
trial court rendered summary judgment against the accounting
firm, and the firm appeals. It contends the trial court erred
because the firm's lien is superior and the foreclosure
proceeding did not extinguish it. The firm also argues that
the trial court's judgment, which dismissed the
firm's contract claim for Dominguez's default on the
note, improperly granted more relief than sought because no
party moved to adjudicate that issue.
court, two of the three appellees filed a motion to dismiss,
challenging our appellate jurisdiction. We carried that
motion with the case.
deny the motion to dismiss, reverse the trial court's
judgment, and remand the case to the trial court for further
court, appellees are: (1) Dominguez, who owns a condominium
located within the Parc IV and V Condominiums ("Parc
Condominiums") in Houston, Texas; (2) Parc IV and Parc V
Condominium Association ("the Association"), which
is the condominium owners' association; and (3)
Associated Management, Inc. ("AMI"), which manages
the condominium property. In the trial court, Dominguez
alleged that the Parc Condominiums were "allowed to
deteriorate" to a physical condition necessitating
"excessive" repairs, the cost of which the
Association passed on to the condominium owners by way of
increased monthly assessments. The Association allegedly also
requested tens of thousands of dollars in "unanticipated
special assessments." Dominguez apparently did not pay
some or all of the assessments imposed, and the Association
foreclosed on his condominium.
Association, however, was not the only entity purporting to
possess a lien against Dominguez's condominium. Appellant
Kenneth D. Eichner, P.C. ("Eichner"), an accounting
firm, performed accounting services for Dominguez during or
before 2007. In return, Dominguez agreed to pay Eichner
roughly $12, 000 pursuant to a promissory note and pledged
his condominium as collateral for the debt. Dominguez and
Eichner executed a Security Agreement and Combined Note
("Security Agreement") to this effect in 2007. The
Security Agreement was filed with the county clerk on June
unclear from the record when Dominguez failed to pay the
assessments. In 2013, Dominguez sued the Association
and AMI for wrongful foreclosure. Eichner intervened and
asserted claims against Dominguez and the Association.
Specifically, Eichner asserted a breach of contract claim
because Dominguez allegedly defaulted on the promissory note.
Eichner also alleged that it possessed a valid lien on
Dominguez's condominium that was superior to any lien
claimed by the Association. Eichner sought relief of
"the principal amount due and owing" on the
the Association, and AMI filed a joint motion for summary
judgment ("Joint Motion"), arguing that the
Association's lien was superior to Eichner's lien and
that the Association's foreclosure judgment extinguished
Eichner's lien. More particularly, the Joint Motion
argued that the Association's lien was first in time, and
thus superior to Eichner's alleged lien, because it was
created when the condominium declaration was filed in 1978.
The Joint Motion did not address Eichner's cause of
action against Dominguez for breach of the promissory note
and related relief. The only evidence attached to the Joint
Motion was a business records affidavit and a copy of the
trial court granted the Joint Motion and held that the
Association's lien was superior to Eichner's lien.
The trial court also held that Eichner's lien was
extinguished by the Association's foreclosure and, due to
Eichner's failure to object or redeem its lien,
Eichner's lien was no longer attached to the property.
later moved for final judgment, stating that Dominguez and
the Association had entered into a Rule 11 agreement
resolving all of Dominguez's claims. Because, Dominguez
believed, the trial court previously "resolve[d] the
claims brought forward by [Eichner], " Dominguez
contended that "[t]here are no more legal issues to
resolve" and asked the court to render a final judgment
as to the entire case.
trial court granted Dominguez's motion for judgment and
signed a final judgment. In substantive part, the judgment
ordered: (1) the Association to transfer the condominium
title to Dominguez; (2) Eichner to remove the lis pendens
filed with the county clerk; (3) the county clerk to
"remove from it[s] records or reflect as extinguished
and no longer valid, the Security Agreement and Combined Note
filed by [Eichner] on June 19th, 2007"; and (4)
Dominguez to pay the Association roughly $42, 000 in
satisfaction of the Rule 11 agreement and assessment
appeals the summary judgment and final judgment.
we consider the merits of Eichner's appeal, we first
address a motion to dismiss filed by the Association and AMI
because it implicates this court's appellate
jurisdiction. See Lapiner v. Maimon, 429 S.W.3d 816,
820 (Tex. App.- Houston [14th Dist.] 2014, pet. denied). The
Association and AMI moved to dismiss Eichner's appeal for
want of jurisdiction, contending that Eichner's lien is
void as a matter of law because Eichner did not seek to
enforce its lien within the applicable limitations period set
forth in Texas Civil Practice and Remedies Code section
16.035. We disagree that this limitations argument impairs
undisputed facts establish that the Security Agreement
collateralizing the condominium was executed on June 6, 2007,
and filed on June 19, 2007. Pursuant to the Security
Agreement, Dominguez was obligated to pay the debt owed to
Eichner no later than June 6, 2008. The Association and
AMI-non-parties to the Security Agreement-contend that the
Security Agreement became void on June 6, 2012, citing Texas
Civil Practice and Remedies Code section 16.035. See
Tex. Civ. Prac. & Rem. Code § 16.035(d) ("On
the expiration of the four-year limitations period, the real
property lien and a power of sale to enforce the real
property lien become void."). The Association and AMI
contend that Eichner did not bring suit for the recovery of
real property or to foreclose on the lien within four years
of the Security Agreement's maturity date. Thus, they
argue, the lien is void as a matter of law and this court
lacks jurisdiction because there is no live controversy.
response, Eichner argues that the Security Agreement remained
effective at least until November 2013, in part because
Dominguez allegedly acknowledged the debt in December 2009.
Eichner also argues that the Association's and AMI's
limitations argument-that Eichner's lien is void because
its attempt to enforce it was untimely-is waived for failure
to raise it in the trial court. We agree with Eichner's
to the motion to dismiss, Eichner's alleged lien is void.
The sole rationale offered in support of appellees'
position is that the alleged lien became void by the passage
of time due to Eichner's failure to assert his lien
rights within the applicable limitations period. The statute
of limitations, however, is an affirmative defense. See
Trelltex, Inc. v. Intecx, L.L.C., 494 S.W.3d 781, 785
(Tex. App.-Houston [14th Dist.] 2016, no pet.). It is waived
if not timely pleaded or tried by consent. See Tex.
R. Civ. P. 94; Frazier v. Havens, 102 S.W.3d 406,
411 (Tex. App.-Houston [14th Dist.] 2003, no pet.). Further,
a party may not raise a limitations defense for the first
time on appeal. See Caston v. Wiley, No.
14-14-01001-CV, 2016 WL 3131666, at *5 (Tex. App.-Houston
[14th Dist.] June 2, 2016, no pet.) (mem. op.) (holding that
limitations cannot be raised for the first time on appeal).
without deciding that the Association and AMI have standing
to assert limitations as an affirmative defense to
Eichner's claims, they did not raise the defense below.
In the trial court, the Association and AMI never contended
that Eichner's lien was void due to Eichner's alleged
failure to enforce it during a limitations period. Nor did
they assert, or prove, that Eichner's intervention to
assert its lienholder rights was barred as untimely.
Appellees did not raise these arguments in their summary
judgment motion or pleadings, nor did they direct the trial
court to the Civil Practice and Remedies Code limitations
provision on which their motion to dismiss is based. Being
grounded on a limitations argument, the issues raised in the
motion to dismiss do not implicate our appellate
jurisdiction. See, e.g., Dubai Petroleum Co. v.
Kazi, 12 S.W.3d 71, 76-77 (Tex. 2000) (explaining
distinction between right of plaintiff to relief and
jurisdiction of court to afford it). We will not construe an
unpreserved limitations defense as a jurisdictional obstacle
to addressing Eichner's appellate issues.
we deny the Association's and AMI's motion to
turn to the merits of Eichner's appeal. Eichner's
issues on appeal can ...