Court of Appeals of Texas, Sixth District, Texarkana
Submitted: July 1, 2019
Appeal from the 353rd District Court Travis County, Texas
Trial Court No. D-1-GN-12-001420
Morriss, C.J., Burgess and Stevens, JJ.
R. Morriss, III Chief Justice
Landon Hutchins moved into the condominium of his mother,
Lillian Smith, in the Swede Hill Lofts Condominiums (Swede
Hill) in Austin,  the neighbors began to complain about
Hutchins' use of the premises, loud noises and noxious
odors coming from his unit, and one or more instances of law
enforcement intervention at the unit. When the imposition of
fines against Smith for violations of the rules and
regulations of the Swede Hill Homeowners' Association
(HOA) did not achieve favorable results, the HOA sued Smith
and recovered a money judgment and injunctive relief against
her. On appeal, Smith claims that the HOA did not properly
authorize the fines or the filing of the lawsuit against her.
We affirm the judgment of the trial court, because (1)
sufficient evidence supports the trial court's finding
that the HOA-assessed fines against Smith were properly
authorized and (2) Smith's claim that the HOA Board of
Directors did not properly authorize the lawsuit against her
is not supported by the evidence.
owns unit 106 in Swede Hill. Hutchins moved into the
unit and lived there sporadically during 2009. Sometime
during 2010, Hutchins began living in unit 106 on a full-time
basis. In 2009, the HOA, through its president, Robert
Hageman,  began to receive complaints about
Hutchins' behavior. Those complaints continued through
2011. On March 8, 2011, Hageman e-mailed Smith a letter
advising her that a warning letter regarding Hutchins'
behavior was being mailed to her by certified mail. The
e-mail attached a copy of the HOA rules and regulations and
Swede Hill Declarations together with photographic
documentation of certain infractions allegedly committed by
same date, the HOA sent formal notice, by certified mail, to
Smith and Hutchins stating that further violations would
result in a $500.00 fine for the first occurrence and a $1,
000.00 fine for the second occurrence. In January 2012,
Hageman sent Smith an e-mail indicating that the HOA would
enforce the fines, if the infractions continued. Smith was
ultimately fined $500.00 based on the March 2011 warning.
Later in January, Hutchins initiated a confrontation with the
owner of unit 104 and continued to park in other's
parking spaces. As a result of these continued infractions,
Smith was fined $1, 000.00 per the board's ruling in
April 2012, Hageman sent an e-mail to the HOA membership to
call a meeting to discuss "[w]hat action should be taken
against Mr. Landon Hutchins, tenant of Owner Lillian Smith,
Unit 106." Hageman advised the members that "Mr.
Bill Davidson, the attorney who drafted all the condo
documents[, ] . . . proposed to file for a temporary
restraining order then permanent restraining order against
Mr. Hutchins/Ms. Smith in county court to limit the adverse
actions to the rules of the Association." The e-mail
meeting of members was a common practice because many unit
owners were out of town.
an online discussion in which Smith participated, Rob Lane
moved "that any and all remedies available to [the]
Association, be taken against [Hutchins]" in light of
his "repeated violation of Swede Hill rules and
regulations, as well as his inability to adapt to the norms
of communal housing." The motion was seconded by Hageman
and Carol Haynes, and the HOA members were provided with
ballots to vote for or against "the motion to file a
restraining order for conduct adverse to the rules, regs and
declaration of the HOA against the owner and resident of Unit
106." The HOA voted to seek a temporary injunction
against Hutchins and Smith to restrain further conduct averse
to the HOA rules. The HOA's original petition was filed
May 9, 2012.
January 2013, Hageman sent a notice for an HOA meeting
regarding damages to the building allegedly caused by
Hutchins. The intent was to ask the attorney who filed the
lawsuit relating to the temporary restraining order to
likewise request the recovery of damages against
Hutchins. Other agenda items included voting on an
additional fine against Smith and assessing against Smith the
cost associated with obtaining a temporary restraining order.
The meeting was held at the Doubletree Hotel on January 30,
2013,  at which time each of the agenda items was
voted on and passed. Following the meeting, Hageman sent
Smith an invoice for $8, 925.00, representing the cost of the
agenda items passed at the meeting. A claim for property
damage was ultimately included in the HOA's lawsuit.
a bench trial, the trial court entered judgment against Smith
for $1, 500.00 for unpaid fines assessed against her by the
HOA, $5, 000.00 for damage to HOA property by Hutchins,
Smith's tenant, and attorney fees in the amount of $44,
Sufficient Evidence Supports the Trial Court's Finding
that the HOA-Assessed Fines Against Smith Were Properly
complains that the board failed to approve fines against her
at a meeting in which board members could simultaneously hear
one another before reaching a determination that it would
impose fines. See Tex. Prop. Code Ann. §
82.108(c)(1)(A), (B). As a sub-issue, Smith complains that
she was not provided the opportunity to challenge the
veracity of the alleged violations before fines were imposed.
Smith therefore claims that the fines were assessed
improperly and that the trial court erred in making them part
of the judgment. We interpret this argument as an attack on
the legal and factual sufficiency of the evidence to support
the judgment's inclusion of $1, 500.00 in HOA-assessed
reviewing the legal sufficiency of the evidence, we view the
evidence in the light most favorable to the judgment,
crediting favorable evidence if a reasonable juror could, and
disregarding contrary evidence unless a reasonable juror
could not." Lugo v. Herrera, No.
03-08-00215-CV, 2008 WL 4823163, at *2 (Tex. App.-Austin Nov.
7, 2008, no pet.) (mem. op.) (citing City of Keller v.
Wilson, 168 S.W.3d 802, 807 (Tex. 2005)). The "test
for legal sufficiency must always be whether the evidence at
trial would enable reasonable and fair-minded people to reach
the verdict under review." City of Keller v.
Wilson, 168 S.W.3d 802, 827 (Tex. 2005). "In
reviewing the factual sufficiency of the evidence, we
consider and weigh all of the evidence in the record, and we
may overturn a judgment only if it is so against the great
weight and preponderance of the evidence as to be clearly
wrong and manifestly unjust." Lugo, 2008 WL
4823163, at *2 (citing Cain v. Bain, 709 S.W.2d 175,
176 (Tex. 1986)).
Hutchins moved into unit 106, his behavior became
increasingly disruptive of the Swede Hill community. Both
Smith and Hutchins were confronted about Hutchins'
numerous infractions, including loud music, noxious odors,
loud talking, loud disturbances with guests, parking in other
people's spots, parking in unmarked areas, police
activity at the unit, trash on the walkway by the door,
guests who arrived at all hours of the night, and a guest who
stole property from another resident.
March 2011, Smith received a warning from the HOA by e-mail
and certified mail regarding listed grievances and was
informed, "The Board voted to establish a fine if, after
30 days from this notice, any of these grievances occur
again. The First occurrence fine is $500-the second
occurrence fine is $1000." The notice referenced Section
3.05 of the Declaration, which provides that "the Owner
may request a written hearing before the Board within thirty
(30) days of the notice." Smith testified that she
received the e-mail notice and that, if the notice was sent
to her by certified mail, her secretary would have given it
to her. Smith did not request a hearing before the board to
contest the fines.
testified that the board conducted a telephone meeting before
the letter was mailed. He explained that the fines were not
initially imposed because Hutchins indicated that he intended
to move. By January 2012, neither had Hutchins moved nor had
the infractions ceased. To address the continued infractions,
the board conducted a meeting by telephone conference to
determine if the board wanted to "go ahead and actually
demand payment for the fines." Each of the board members
was on the telephone conference at the same time. The board
consisted of Hageman, Glover, and Vipul Patel. All voted to
demand payment for the $500.00 fine, although Glover did not
vote to demand payment for the $1, 000.00 fine.
previously discussed, a board meeting may be held
telephonically, if "each director may hear and be heard
by every other director." Tex. Prop. Code Ann. §
82.108(c)(1)(B). Telephonic board meetings were also
authorized by Section 12.01 of the HOA bylaws ("[A]ll
persons participating in the meeting [must] hear each
other."). During the board's meeting by conference
call, each of the members was on the call at the same time.
This satisfies the requirements of Section 182.108(c)(1)(B),
as well as the similar requirement of Section 12.01 of the
bylaws. We find that this ...