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Matney v. Harbor Gardens Condominiums (Phase II) Association of Owners

Court of Appeals of Texas, Second District, Fort Worth

November 16, 2017

MURIEL ANN MATNEY APPELLANT
v.
HARBOR GARDENS CONDOMINIUMS (PHASE II) ASSOCIATION OF OWNERS APPELLEE

         FROM COUNTY COURT AT LAW NO. 2 OF WISE COUNTY TRIAL COURT NO. CV-6553

          PANEL SUDDERTH, C.J.; WALKER and KERR, JJ.

          MEMORANDUM OPINION [1]

          ELIZABETH KERR JUSTICE .

         In this dispute over governance of a condominium owners' association, common-area maintenance, and the calculation of monthly assessments, owner Muriel Ann Matney appeals a summary judgment and attorney's-fees award for Harbor Gardens Condominiums (Phase II) Association of Owners. Because Matney did not brief all possible grounds on which the summary judgment could have been granted and because we overrule her complaint about the attorney's-fees award, we affirm the trial court's judgment.

         Factual and Procedural Background

         In 1970, Lake Bridgeport Building Corporation, a developer, executed a Declaration of Condominium Regime and recorded it in the Wise County property records. The Declaration established a condominium complex, Harbor Gardens Condominium (Phase II), in Runaway Bay. The complex comprises thirty units in four buildings--Buildings A, B, C, and D--and surrounding common areas. The units in Building A have almost three times as much square footage as the units in the other buildings. Matney owns one of the larger Building A units.

         Beginning in 2010, Matney and Harbor Gardens's council of owners started disagreeing about the necessity of repairs to some of the buildings and adjacent common areas and about how any repair costs should be assessed among the unit owners. In April 2011, voters at a special meeting replaced the entire council and elected Matney the new president. Matney's council authorized and began the repairs that Matney had proposed. But at a special meeting in November 2011, all those council members were themselves replaced. The new council halted the repairs authorized by Matney's council and changed the method by which unit owners' monthly assessments were calculated in order to conform to the method set forth in the recorded Declaration.[2] That method calculates each unit owner's monthly assessment based on that owner's proportionate share of the total square footage of all units in the complex. Matney protested this change, arguing that each unit owner should be responsible for only one-thirtieth of the common expenses, regardless of unit size.

         In November 2016, Matney sued Harbor Gardens alleging multiple causes of action and seeking various types of relief. Her primary complaints are that council members have engaged in malfeasance and violated state law; that the method of calculating the monthly assessments violates state law and the Declaration; and that as a Building A unit owner, she is entitled to a refund for amounts Harbor Gardens paid for repairs attributable only to Buildings B, C, and D. Matney also claimed that the council wrongfully refused to seek attorney's fees in a 2011 suit brought by Ken Kilpatrick, the owner of two Building B units and a current member of the owners' council, and violated both state law and the bylaws attached to the Declaration by failing to conduct an annual audit for five years. Matney further asked the trial court to declare the Declaration provision setting forth the method of calculating monthly assessments invalid. In support of her arguments about the monthly-assessments calculation, Matney claimed that after the developer filed the Declaration with the Wise County Clerk, sometime later it illegally altered the document by cutting and pasting into it the current provision requiring the monthly assessments to be calculated based on a unit owner's pro rata share of the complex's total square footage.

         Harbor Gardens moved for a traditional summary judgment primarily on limitations grounds. But Harbor Gardens also argued that neither the Declaration, Harbor Gardens's bylaws, nor the Texas Condominium Act authorizes Matney to bring any of her claims. In the last few pages of her response to Harbor Gardens's motion, Matney sought a partial summary judgment on her own request for relief that she had included in her initial petition's prayer: that the trial court remove Kilpatrick from the council of owners and bar him from future service.

         Without stating its reasons or expressly ruling on Matney's partial-summary-judgment motion, the trial court granted summary judgment in favor of Harbor Gardens, dismissed Matney's claims with prejudice, and awarded Harbor Gardens $10, 000 in attorney's fees. Matney has appealed.

         Complaints Raised in Matney's Brief

         Matney raises a single issue containing three complaints: (1) the trial court erred by granting Harbor Gardens's motion for summary judgment; (2) the trial court erred by denying her cross motion for partial summary judgment; and (3) the attorney's-fees award to Harbor Gardens should be reversed.

         Matney has not challenged all possible summary-judgment grounds.

         Although Matney brings a general issue challenging the summary judgment for Harbor Gardens and includes argument in her brief responsive to Harbor Gardens's limitations grounds as to each claim in her amended petition, under even the most liberal construction of her brief she does not challenge Harbor Gardens's summary-judgment ground that neither the Declaration, Harbor Gardens's ...


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