Appeal from the 268th District Court Fort Bend County, Texas
Trial Court Cause No. 14-DCV-216722
consists of Justices Boyce, Busby, and Wise.
Brett Busby Justice
Bend No. 5 Homeowners Association, Inc. sued property owners
Petrina and Trenton Lewin for unpaid annual assessments and
other fees. After suit was filed, the Lewins made a
payment to the Association. To seek the remaining balance it
felt was owed on the Lewins' account, the Association
filed a motion for summary judgment. The Lewins asserted a
defense that they had paid the full amount the Association
said was owed and filed counterclaims against the
Association. The trial court granted summary judgment for the
Association and the Lewins appeal, raising two issues. First,
the Lewins argue the summary judgment is not final because
there are pending counterclaims. Second, the Lewins argue
that the Association did not conclusively prove it gave the
Lewins all lawful credits and did not move for summary
judgment on their counterclaims.
conclude the summary judgment is final because it expressly
provides that it disposes of all claims and parties. On the
merits, we hold the Association did not conclusively prove
that it gave the Lewins all credits to which they were
entitled, and the trial court erred in granting summary
judgment on the Lewins' counterclaims without a proper
motion. We therefore reverse the judgment and remand for
Lewins own property located in a subdivision in Fort Bend
County. The deed to the property contains a "Covenant
for Maintenance Assessments." This covenant requires the
owner to pay the Association annual and special assessments,
interest on untimely assessment payments, and reasonable
attorneys' fees. According to the deed, the annual and
special assessments are "a charge on the land" and
become a lien on the property when each assessment is made.
The deed provides that the Association may bring legal action
for unpaid fees or foreclose the lien against the property.
August 2014, the Association sued the Lewins to collect
unpaid annual maintenance assessments, interest, and other
charges and to foreclose on its lien. The Lewins originally
answered with a general denial. In February 2015, the Lewins
paid the Association $1, 229.98. In Trenton Lewin's
affidavit, he states that he called the Association to verify
the amount and paid the amount the Association said was owed.
Association filed a traditional motion for summary judgment
seeking a remaining balance of $1, 222.58 as well as
attorneys' fees. The Lewins amended their answer to
assert an affirmative defense that the amount was paid in
full; they also alleged counterclaims for breach of contract,
violation of the Deceptive Trade Practices Act (DTPA), and
fraud. The Association then amended its motion
for summary judgment, changing only the amount of
attorneys' fees the Association had incurred. The amended
motion did not address the Lewins' counterclaims.
the Lewins responded to the Association's motion for
summary judgment, the trial court granted that motion,
awarding the Association $1, 222.58 plus attorneys' fees
and ordering foreclosure on the Association's lien. The
Lewins appeal the trial court's grant of summary judgment
to the Association.
The summary judgment is final.
their first issue, the Lewins challenge our appellate
jurisdiction, arguing that the order granting the
Association's motion for summary judgment is
interlocutory because their counterclaims were not addressed.
We conclude that the summary judgment is final.
general rule, an appeal may be taken only from a final
judgment. Lehmann v. Har-Con Corp., 39 S.W.3d 191,
195 (Tex. 2001). A judgment's finality is not determined
by its form, but by its language and the record on appeal.
B.Z.B., Inc. v. Clark, 273 S.W.3d 899, 902 (Tex.
App.-Houston [14th Dist.] 2008, no pet.) (citing
Lehmann, 39 S.W.3d at 195). If the finality of the
judgment is uncertain, ...