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Lewin v. Mission Bend No. 5 Homeowners Association, Inc.

Court of Appeals of Texas, Fourteenth District

July 11, 2017

PETRINA LEWIN AND TRENTON LEWIN, JR., Appellants
v.
MISSION BEND NO. 5 HOMEOWNERS ASSOCIATION, INC., Appellee

         On Appeal from the 268th District Court Fort Bend County, Texas Trial Court Cause No. 14-DCV-216722

          Panel consists of Justices Boyce, Busby, and Wise.

          MEMORANDUM OPINION

          J. Brett Busby Justice

         Mission Bend No. 5 Homeowners Association, Inc. sued property owners Petrina and Trenton Lewin for unpaid annual assessments and other fees.[1] 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.

         We 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 further proceedings.

         Background

         The 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.

         In 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.

         The 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.[2] 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.

         After 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.

         Analysis

         I. The summary judgment is final.

         In 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.

         As a 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, ...


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