Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Atkinson v. Sunchase IV Homeowners Association, Inc. And Board

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

December 19, 2019

DAVID ATKINSON, Appellant,
v.
SUNCHASE IV HOMEOWNERS ASSOCIATION, INC. AND BOARD, Appellees.

          On appeal from the 404th District Court of Cameron County, Texas.

          Before Chief Justice Contreras and Justices Hinojosa and Tijerina

          MEMORANDUM OPINION

          JAIME TIJERINA, JUSTICE

         Appellant David Atkinson appeals from a final judgment in favor of appellees Sunchase IV Homeowners Association, Inc. and Board (the Association). By six issues, Atkinson complains of: (1) the trial court's failure to conclude that the utilities at Sunchase IV must "be paid as a common expense"; (2) the jury's "error in failing to find that repeated, knowing violations of the Sunchase IV governing documents . . . were breaches of contract or fiduciary duty"; (3) the "[t]rial court's failure to rule on limitations on the Sunchase IV board's powers to make changes to Sunchase IV common elements"; (4) the "[t]rial court's failure to rule . . . as a matter of law that non-property lawsuit settlement funds cannot be distributed to unit owners and most especially on a formula on Hurricane Dolly damages negotiated by the Sunchase IV Board"; (5) the granting of attorney's fees to the Association; and (6) "[t]he trial court's failure to find the creation of preferential parking rights violated the parties' prior lawsuit settlement agreement." We affirm in part and reverse and render in part.

         I. Background

         Atkinson owns a condominium unit at Sunchase IV on South Padre Island, Texas. According to Atkinson, the Association is a duly formed nonprofit corporate entity that administers the condominium project pursuant to its Declaration and Bylaws.[1] Atkinson stated in his petition that Hurricane Dolly damaged the Sunchase IV building and his unit in 2008, which required substantial repairs. Atkinson claimed that the Association "discriminated" against him in the disbursement of funds intended to repair hurricane damage. Atkinson accused the Association of "creat[ing] a fraudulent scheme where [the Association's] repair obligations [after Hurricane Dolly] were shifted to individual unit owners" which "resulted in the situation where unit owners were excluded from the insurance loss assessments and settlements from related litigation and having to accept whatever insurance monies [the Association] unilaterally decided to give each unit owner." Atkinson alleged that the Association violated its Declaration and Bylaws by improperly "altering" common elements of the Sunchase IV building including "some portions in the interiors of individual units" and by failing to properly repair other common elements of the building. Atkinson claimed that the Association "stole" his electricity by using his air conditioning unit. In addition, Atkinson stated that the Association "surreptitiously with the clear intent to defraud . . . made secretive repair attempts" to his unit "after a common element water pipe located in a common area burst, supposedly, on November 15 of 2011." Atkinson further alleged that after the water leak, the Association allowed maintenance workers to "repeatedly" enter his unit and make inadequate repairs to his unit which they attempted to "hide." Atkinson stated that the Association "removed personal property including family photographs and business documents from [his] unit" and that most of that property was not returned to him. Finally, Atkinson complained that the Association violated the terms of a prior settlement agreement by providing "preferential parking" to certain individuals who have a motorcycle, trailer, or boat.

         Atkinson sued the Association for fraud, civil conspiracy, breach of fiduciary duty, breach of contract, negligence, gross negligence, conversion, and trespass. A jury trial was held on Atkinson's claims.[2] At the end of Atkinson's case-in-chief, the trial court granted a directed verdict in favor of the Association on Atkinson's claims of negligence, gross negligence, conversion, and civil conspiracy and allowed the remaining claims of trespass, breach of contract, breach of fiduciary duty, and fraud to be submitted to the jury.[3] The jury answered "No" to the following questions: (1) Did the Association "fail to comply with its fiduciary duty to David Atkinson?"; (2) Did the Association "commit a trespass against David Atkinson?"; and (3) Did the Association "breach . . . contractual duties to David Atkinson?"[4] The jury also awarded attorney's fees to the Association. The trial court entered a final take-nothing judgment against Atkinson awarding attorney's fees to the Association. This appeal followed.

         II. Utilities at Sunchase

         By his first issue, Atkinson contends that the trial court erred by failing to conclude that the utilities at Sunchase must "be paid as a common expense." Specifically, Atkinson argues that "[a]ppellees must assess and pay, as common element expenses, the Sunchase IV central telephone, cable, and WiFi utilities" because those utilities are non-individually metered; therefore, under the governing documents, those utilities "are common expenses and Sunchase cannot charge each unit, regardless of unit size, the same monthly amount for such non individually metered utilities."[5]

         Atkinson generally cites the standards of review for legal sufficiency, construction of contracts, and for the denial of a judgment notwithstanding the verdict. However, although Atkinson cites evidence, he does not state which standard applies to this issue, and he does not cite to any pertinent authority that supports his first issue. See Tex. R. App. P. 38.1(i). In addition, Atkinson does not make any legal argument regarding how the trial court's alleged failure to conclude that the utilities at Sunchase must "be paid as a common expense" was erroneous in any way or how this alleged error, if any, caused him harm. See id. The requirement that the appellant's brief contain a clear and concise argument is not satisfied by merely uttering brief conclusory statements unsupported by legal citations. Valadez v. Avitia, 238 S.W.3d 843, 845 (Tex. App.-El Paso 2007, no pet.). "Failure to cite legal authority or provide substantive analysis of the legal issue presented results in waiver of the complaint." Id. We are not allowed to perform an independent review of the record and applicable law to determine whether there was error. Id. "It is not this [C]ourt's duty to review the record, research the law, and then fashion a legal argument for appellant when [it] has failed to do so." Katy Springs & Mfg., Inc. v. Favalora, 476 S.W.3d 579, 607 (Tex. App.-Houston [14th Dist.] 2015, pet. denied). Accordingly, we conclude that Atkinson has waived this issue.[6] We overrule Atkinson's first issue.

         III. Violations of the Sunchase IV Governing Documents

         By his second issue, Atkinson contends that the jury's verdict denying his breach of fiduciary duty claim was against the great weight of the evidence.[7] We construe this issue as challenging the factual sufficiency of the evidence supporting the jury's finding that the Association did not breach its fiduciary duty. See Kratz v. Exxon Corp., 890 S.W.2d 899, 901-02 (Tex. App.-El Paso, 1994, no writ) (explaining that a complaint that the jury's finding is against the overwhelming weight of the evidence is a factual sufficiency challenge); see also Spinks v. Brown, 04-08-00877-CV, 2010 WL 381041, at *1 (Tex. App.-San Antonio Feb. 3, 2010, pet. denied) (mem. op.) (construing the appellant's argument that the jury finding was against the great weight and preponderance of the evidence as a challenge to the factual sufficiency of the evidence (citing Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex.1998))).

         A. Standard of Review

         "When a party attacks the factual sufficiency of an adverse finding on an issue on which [it] has the burden of proof, [it] must demonstrate on appeal that the adverse finding is against the great weight and preponderance of the evidence." Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001) (per curiam). We must consider and weigh all of the evidence and will only set the verdict aside if the evidence is so weak or if the finding is so against the great weight and preponderance of the evidence that it is clearly wrong or unjust. Id. In the context of a jury trial, the sufficiency of the evidence is reviewed in the light of the charge submitted if no objection is made to the charge. Romero v. KPH Consolidation, Inc., 166 S.W.3d 212, 221 (Tex. 2005); Wal-Mart Stores, Inc. v. Sturges, 52 S.W.3d 711, 715 (Tex. 2001).

         If the evidence at trial "would enable reasonable and fair-minded people to differ in their conclusions," we will not substitute our judgment for that of the fact finder. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). Whether reviewing the legal or factual sufficiency of the evidence, the jurors are the sole judges of the credibility of the witnesses and the weight to be given their testimony and may choose to believe some witnesses and not others. Id. at 819. The amount of evidence necessary to affirm is far less than the amount necessary to reverse a judgment. GTE Mobilnet of S. Tex. Ltd. P'ship v. Pascouet, 61 S.W.3d 599, 616 (Tex. App.-Houston [14th Dist.] 2001, pet. denied). Moreover, this Court is not a factfinder. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998).

         B. The Charge

         In the jury charge, question number one states: "Did [the Association] fail to comply with its fiduciary duty to [Atkinson]?" The trial court instructed the jury as follows:

Because a relationship of trust and confidence existed between them, as a homeowner association and member, [the Association owed Atkinson] a fiduciary duty. To prove that Sunchase IV Condominiums Homeowner's Association failed to comply with its fiduciary duty David Atkinson must show:
a. [The Association] did not discharge its duties in good faith; with ordinary care; and in a manner [the Association] reasonably believed to be in the best ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.