From: Subject: Texas Judiciary Online - HTML Opinion Date: Mon, 8 Jan 2007 00:26:08 -0600 MIME-Version: 1.0 Content-Type: multipart/related; type="text/html"; boundary="----=_NextPart_000_0015_01C732BB.979472F0" X-MimeOLE: Produced By Microsoft MimeOLE V6.00.2900.3028 This is a multi-part message in MIME format. ------=_NextPart_000_0015_01C732BB.979472F0 Content-Type: text/html; charset="Windows-1252" Content-Transfer-Encoding: quoted-printable Content-Location: http://www.14thcoa.courts.state.tx.us/opinions/htmlopinion.asp?OpinionId=82899 Texas Judiciary Online - HTML Opinion
Send this document to a=20 colleague    Close=20 This Window


Affirmed = and Opinion=20 filed December 14, 2006.

 

 

 

In The

 

Fourteenth=20 Court of Appeals

_______________

 

NO. 14-05-00071-CV

_______________

 

JOHN R. HAAS, Appellant

 

V.

 

ASHFORD HOLLOW = COMMUNITY=20 IMPROVEMENT ASSOCIATION, INC., Appellee

           &= nbsp;           &n= bsp;           &nb= sp;           &nbs= p;            = ;            =             &= nbsp;           &n= bsp;           &nb= sp;           &nbs= p;            = ;          =20

On Appeal from the County Civil=20 Court at Law No. 3

Harris County, = Texas

Trial Court Cause No.=20 804,328

           &= nbsp;           &n= bsp;           &nb= sp;           &nbs= p;            = ;            =             &= nbsp;           &n= bsp;           &nb= sp;           &nbs= p;            = ;          =20

 

O P I N I=20 O N

Appellant, John R. = Haas,=20 appeals from a judgment awarding appellee, Ashford Hollow = Community=20 Improvement Association, Inc. (Athe = Association@), delinquent = maintenance=20 assessments for 2003 and 2004 and ordering foreclosure on a lien = securing=20 payment of the assessments.  In five issues, Haas contends = (1) the=20 trial court lacked jurisdiction to enforce a lien on his real = property,=20 (2) the trial court lacked jurisdiction over the = Association=3Ds claim to recover = the=20 assessments, (3) the trial court erred by awarding 2004 = assessments, (4)=20 the trial court erred by awarding attorney=3Ds fees, and (5) the=20 attorney=3Ds fees were = excessive.  We=20 affirm.

I. =20 Background

In October 2003, the=20 Association sued Haas, a property owner, alleging he breached the=20 restrictive covenants governing his subdivision by failing to pay=20 maintenance assessments for 2003.  The Association also = alleged that=20 it anticipated Haas would refuse to pay the 2004 assessments, = which would=20 become due between the filing of the petition and the trial.  = Thus,=20 the Association sought recovery of assessments for 2003 and = 2004. =20 The Association further alleged that the restrictive covenants = allowed it=20 to place a lien on Haas=3Ds property to secure = payment of=20 the assessments, and the Association sought to foreclose its lien = in this=20 suit.

The trial court = conducted a=20 bench trial in August 2004.  At the start of the trial, the = trial=20 court held a hearing to consider Haas=3Ds plea to the = jurisdiction that=20 was included in his live answer and his Amotion for partial = directed=20 verdict@ on the ground that = the=20 Association was not entitled to recover attorney=3Ds fees.  The = trial court=20 denied the plea to the jurisdiction and the Amotion for partial = directed=20 verdict.@  The parties = then=20 stipulated regarding the amounts of the assessments for 2003 and = 2004 and=20 that they were delinquent.  The only remaining issue to be = tried=20 concerned the amount of the Association=3Ds = attorney=3Ds fees. Following = presentation=20 of evidence, the trial court entered judgment for the Association = to=20 recover $716.11, plus post-judgment interest and = attorneys=3D fees.  In = addition, the=20 trial court ordered that the Association have a lien on the = property as=20 set forth in the restrictive covenants and ordered foreclosure on = the=20 lien.

II. =20 Jurisdiction to Enforce the Lien on Real=20 Property

In his first issue, = Haas=20 contends the trial court did not have jurisdiction to enforce the = lien on=20 his real property because the amount in controversy was less than = the=20 minimum jurisdictional limits of a statutory county court at = law. =20 Whether a court has subject matter jurisdiction is a question of = law that=20 we review de novo.  Texas Dep=3Dt of Parks & = Wildlife v.=20 Miranda, 133=20 S.W.3d 217, 226 (Tex. 2004).  As we will discuss, we disagree = that=20 the amount in controversy with respect to Haas=3Ds claim to recover = the=20 assessments was less than the minimum jurisdictional limit of the=20 court.  Regardless, the trial court had jurisdiction to = enforce the=20 lien on Haas=3Ds property, = irrespective of the=20 amount in controversy.

Section 25.0003 of = the Texas=20 Government Code governs the jurisdiction in general of statutory = county=20 courts and prescribes the monetary jurisdictional limits of = statutory=20 county courts.  See Tex. Gov=3Dt=20 Code Ann. '=20 25.0003 = (Vernon=20 Supp. 2006).  Section 25.1032 of the Government Code contains = additional jurisdictional provisions particular to Harris County = civil=20 courts at law.  Tex.=20 Gov=3Dt=20 Code Ann. ' 25.1032 (Vernon = 2004). =20 Section 25.1032(c)(3) provides, AIn addition to other=20 jurisdiction provided by law, a [Harris] county = civil court=20 at law has jurisdiction to . . . hear a suit for enforcement of a = lien on=20 real property . . .@  = Id. '=20 25.1032(c)(3)=20 (emphasis added).

Therefore, contrary = to=20 Haas=3Ds contention, section = 25.1032(c)(3) does not make a Harris County Civil Court at = Law=3Ds jurisdiction to = hear a suit=20 to enforce a lien on real property dependent upon the amount of = the=20 indebtedness secured by the lien or upon the trial = court=3Ds jurisdiction to = award the=20 indebtedness as monetary damages.  See id.  = Rather, the=20 trial court=3Ds jurisdiction to = hear a suit=20 to enforce a lien on real property is based on subject matter, not = the=20 amount in controversy.  See id.; see also In re = Burlington=20 N. and Santa Fe Ry. Co., 12 S.W.3d 891, 899 (Tex. = App.CHouston [14th Dist.] = 2000,=20 orig. proceeding [mand. denied]) (holding Fort Bend County Court = at Law=20 had jurisdiction to issue injunction in eminent domain suit = although=20 county did not state an amount in controversy within = court=3Ds jurisdictional = limits because=20 Legislature had expressly conferred jurisdiction on court to hear = eminent=20 domain cases based on subject matter, not the amount in=20 controversy).

Moreover, the = Association=20 alleged that the restrictive covenants entitled it to place and = foreclose=20 a lien for outstanding assessments.[1] =20 Therefore, the Association pleaded that it was entitled to = foreclose the=20 lien independent of any recovery for the assessments in this = suit. =20 Accordingly, the trial court had jurisdiction to hear the suit to = enforce=20 the lien on Haas=3Ds property = independent of the=20 amount of the assessments or its jurisdiction to award the = assessments as=20 monetary damages.  We overrule Haas=3Ds first = issue.

III. =20 Jurisdiction Over the Claim To Recover the = Assessments

Haas also argues the = trial=20 court did not have jurisdiction over the Association=3Ds claim to recover = the=20 assessments because the amount in controversy was less than the = minimum=20 jurisdictional limits of the court.  The statutory county = court has=20 jurisdiction when the amount in controversy exceeds $500 but does = not=20 exceed $100,000, excluding interest, statutory or punitive damages = and=20 penalties, and attorney=3Ds fees and costs, as = alleged on=20 the face of the petition.  See Tex. Gov=3Dt=20 Code Ann. '=20 25.0003(c)(1); Smith v. Clary = Corp.,=20 917 S.W.2d 796, 798 (Tex. 1996); Weidner v. Sanchez, 14 = S.W.3d 353,=20 360 (Tex. App.C Houston [14th Dist.] = 2000, no=20 pet.).  Here, Haas contends the amount in controversy, = excluding=20 interest, statutory or punitive damages and penalties,=20 attorney=3Ds fees and costs, was = less that=20 $500.

The allegations in = the=20 plaintiff=3Ds petition establish = the amount=20 in controversy for a jurisdictional analysis unless the defendant = pleads=20 and proves that the allegations were made fraudulently for the = purpose of=20 obtaining jurisdiction or the defendant can readily establish that = the=20 amount in controversy is insufficient.  See Miranda, = 133=20 S.W.3d at 223, 224 n.4; Bland Indep. Sch. Dist. v. Blue, 34 = S.W.3d=20 547, 554 (Tex. 2000); Retzlaff v. Deshay, No. = 14‑03‑00833‑CV, 2004=20 WL 2163173, at *2 & n.4 (Tex. App.CHouston [14th Dist.] = Sept. 28,=20 2004, no pet.) (mem. op.) (recognizing party may meet his burden = to=20 challenge jurisdiction if he can establish allegation as to amount = in=20 controversy was Afraudulently made for = the=20 purpose of conferring jurisdiction@ or Areadily establish = that the=20 amount in controversy is insufficient@).  However, if = the=20 plaintiff fails to state an amount in controversy in its petition, = the=20 trial court is not thereby deprived of jurisdiction if = jurisdiction is=20 proved at trial.  Peek v. Equip. Serv. Co., 779 S.W.2d = 802,=20 804B05 (Tex. 1989); = French v.=20 Moore, 169 S.W.3d 1, 6B7 (Tex. = App.CHouston [1st Dist.] = 2004, no=20 pet.).

When a plea to the = jurisdiction=20 challenges the existence of jurisdictional facts, the trial court = must=20 consider relevant evidence submitted by the parties when necessary = to=20 resolve the jurisdictional issue.  Miranda, 133 S.W.3d = at=20 227.  If the evidence creates a fact question regarding the=20 jurisdictional issue, the trial court cannot grant the plea to the = jurisdiction and must submit the issue to the fact finder. =20 Id. at 227B28.  Conversely, = if the=20 evidence is undisputed or fails to raise a fact question on the=20 jurisdictional issue, the trial court should rule on the plea to = the=20 jurisdiction as a matter of law.  Id. at = 228.

In its October 2003 = petition,=20 the Association pleaded for recovery of the delinquent 2003 = assessments=20 and the 2004 assessments that would become due and delinquent = between=20 filing of the petition and trial.  The only statement in the = petition=20 regarding the amount in controversy was the=20 following:

Pursuant to [the = restrictive=20 covenants], [the Association] has levied assessments against=20 [Haas=3Ds] lot.  To date = [Haas=20 has] failed to pay one or more of the assessments, interest, and=20 attorney=3Ds fees and/or related = charges=20 totaling at least $1,811.28, plus charges which accrue after the = date=20 hereof, plus interest and attorney=3Ds fees as set out in=20 [subsequent paragraphs], which is an amount in excess of the = minimum=20 jurisdictional limits of this Court.  In addition, it is = anticipated=20 that [Haas] will continue to fail and refuse to pay additional = assessments=20 and/or related charges to be levied by [the Association] between = the date=20 of filing of this Petition through and including the date of = trial. =20 Accordingly, [the Association] sues [Haas] for all assessments = and/or=20 related charges as may become due and payable prior to and through = the=20 trial of this cause.

Haas asserted in his = plea to=20 the jurisdiction that this statement was fraudulent and made = solely for=20 the purpose of conferring jurisdiction because the Association = improperly=20 included interest, attorney=3Ds fees, costs, and = the 2004=20 assessments when alleging the amount in controversy is = $1,811.28. =20 Contrary to Haas=3Ds assertion, the = Association=20 did not include the 2004 assessments in the $1,811.28 = figure. =20 According to the foregoing paragraph, the $1,811.28 figure = represented the=20 assessments that were delinquent at that time (the 2003 = assessments),=20 although it did include past and future interest, = attorney=3Ds fees, and costs = associated=20 with the 2003 assessments.  The Association then also = requested the=20 2004 assessments that would become due and delinquent before = trial, but=20 did not state an amount for the 2004 assessments.[2]

Nonetheless, Haas did = present=20 evidence at the hearing on his plea to the jurisdiction indicating = that=20 the amount in controversy with respect to the claim for the 2003=20 assessments was not $1,811.28 as pleaded, but an amount less than = the $500=20 minimum jurisdictional limit of the court.[3] =20 Haas suggests that, therefore, the trial court did not have = jurisdiction=20 because the claim for the 2004 assessments could not also be = considered=20 when determining the amount in controversy.  We = disagree.  If=20 one plaintiff asserts multiple claims against one defendant, the = amounts=20 of each separate claim are aggregated to determine the amount in=20 controversy.  French, 169 S.W.3d at 7.  However, = one of=20 the Association=3Ds separate claims, = the claim=20 for the 2004 assessments had not yet accrued because, as Haas = correctly=20 asserts, the 2004 assessments were not yet due, much less = delinquent, when=20 the suit was filed.[4]

Haas does not cite, = and we have=20 not found, any cases addressing whether a homeowners=20 association=3Ds unaccrued claim to = recover an=20 assessment is included when determining the amount in controversy = for=20 jurisdictional purposes.  In a somewhat similar situation, = this court=20 previously considered a lessor=3Ds claim to recover = future lease=20 payments as they accrued when determining the amount in = controversy. =20 In Williams v. Le Garage De La Paix, Inc., the lessor sued = the=20 lessee for breach of a five-year lease.  562 S.W.2d = 534, 535=20 (Tex. Civ. App.CHouston [14th Dist.] = 1978, writ=20 ref=3Dd  n.r.e.). =  The=20 lessor filed suit in mid-July 1974, alleging that the lessee was=20 delinquent on the June 1974 payment.  Id.  The = lessor=20 also sued for all monthly rentals that would become due and accrue = until=20 December 1, 1977, which was the last month of the rental period, = or the=20 date of trial, whichever came first.  See id. at=20 535B36.  We = recognized that=20 the amount in controversy is Adetermined by the = value to the=20 plaintiff of the right that he asserts in good faith in his = pleading=20 setting forth the operative facts constituting his cause of=20 action.@  Id. at = 535. =20 We further recognized that each month=3Ds rental under a = lease contract=20 constitutes a separate and independent cause of action, and the = lessor=20 could have sued only for the June delinquency, an amount within = the=20 jurisdictional limits of the court.  Id.  = However, by=20 suing for all future monthly rentals as they accrued, the lessor = put in=20 issue a sum in excess of the jurisdictional limits of the = court. =20 See id. at 536.[5]

In Williams, = the=20 lessor=3Ds inclusion of the = unaccrued=20 claim for future lease payments in its petition deprived the trial = court=20 of jurisdiction by causing the amount in controversy to = exceed the=20 jurisdictional limit of the court.  See id. at = 535B36.  Here, we = are=20 determining whether the Association=3Ds inclusion of the = unaccrued=20 claim for the 2004 assessments in its petition invoked the trial=20 court=3Ds jurisdiction by = bringing the=20 total amount in controversy within the jurisdictional limit = of the=20 court.  Despite this distinction, we find Williams = applicable=20 to the extent the court included an unaccrued claim when = determining the=20 amount in controversy because the plaintiff placed that claim at = issue in=20 its petition.  See id.; see also Tune v. = Texas Dept.=20 of Public Safety, 23 S.W.3d 358, 361 (Tex. 2000) (stating that = Aamount in=20 controversy@ in jurisdictional = context=20 means Athe sum of money or = the value=20 of the thing originally sued for@); Black=3Ds=20 Law Dictionary 84=20 (7th ed. 1999) (defining Aamount in=20 controversy@ as the Adamages claimed or = relief=20 demanded by the injured party in a lawsuit.@).

In its petition, the=20 Association sought to recover the 2004 assessments, alleging they = would=20 become due and delinquent before trial.  Haas presented no = evidence=20 that the Association sought the 2004 assessments in bad faith to = confer=20 jurisdiction.  In fact, the evidence negated any bad faith,=20 considering that Haas presented evidence showing the 2004 = assessments were=20 billed only a month after the Association filed its petition and = were due=20 two months after it filed the petition.  Consequently, the = claim for=20 the 2004 assessments may be included when determining the amount = in=20 controversy. 

However, as we have = discussed,=20 the Association did not plead an amount with respect to the 2004=20 assessments.  Therefore, we view this case as a situation in = which=20 the plaintiff failed to state a total amount in controversy = because it=20 asserted two claims but only stated an amount with respect to one=20 claim.  Accordingly, jurisdiction could be proved at = trial. =20 See Peek, 779 S.W.2d at 804B05; French, = 169 S.W.3d=20 at 6B7.  At trial, = the parties=20 stipulated that the 2003 assessment was $301.01, the 2004 = assessment was=20 $301.01, and both were delinquent.  Because the amount in = controversy=20 exceeded the $500 minimum jurisdictional limit of the court, = excluding=20 attorney=3Ds fees, interest, and = costs,=20 the trial court had jurisdiction.  We overrule = Haas=3Ds second = issue.

IV. =20 2004 Assessments

In his third issue, = Haas argues=20 the trial court erred by awarding the 2004 assessments because = there was=20 no pleading to support this award.  Although the Association = pleaded=20 for recovery of the 2004 assessments which would become delinquent = before=20 trial, Haas complains that the Association did not amend its = petition=20 before trial to specify that the 2004 assessments had become=20 delinquent. 

Even if the = Association did not=20 sufficiently plead its claim for the 2004 assessments, the claim = was tried=20 by consent.  AWhen issues not = raised by the=20 pleadings are tried by express or implied consent of the parties, = they=20 shall be treated in all respects as if they had been raised in the = pleadings.@  Tex. R. Civ. P. = 67.  To=20 determine whether an unpleaded issue was tried by consent, we = examine the=20 record not for evidence of the issue, but rather for evidence of = trial of=20 the issue.  Johnston v. McKinney Am., Inc., 9 S.W.3d = 271, 281=20 (Tex. App.CHouston [14th Dist.] = 1999, pet.=20 denied).  An party=3Ds unpleaded issue may = be deemed=20 tried by consent when evidence on the issue is developed under=20 circumstances indicating both parties understood the issue was in = the=20 case, and the other party failed to make an appropriate = complaint. =20 Johnson v. Structured Asset Servs., LLC, 148 S.W.3d 711, = 719 (Tex.=20 App.CDallas 2004, no=20 pet.).

At trial, Haas = stipulated=20 regarding the amount of the 2004 assessments and that the amount = was=20 delinquent.  He then agreed that the only issue remaining was = the=20 Association=3Ds claim for=20 attorneys=3D fees.  Thus, = Haas clearly=20 indicated the 2004 assessments were at issue and did not complain = that=20 there was no supporting pleading.  Because the=20 Association=3Ds claim for the 2004=20 assessments was tried by consent, we overrule Haas=3Ds third issue. =

V. =20 Attorney=3Ds=20 Fees

In his fourth and = fifth issues,=20 Haas contends the trial court erred by awarding = attorney=3Ds fees and the fees = are=20 excessive.

A.       =20 Award of Attorney=3Ds Fees

First, Haas argues = the trial=20 court erred by awarding attorney=3Ds fees.  Whether = attorney=3Ds fees are authorized = in a=20 particular case is a question of law to be determined by the = court. =20 See Jim Rutherford Invs., Inc. v. Terramar Beach Cmty.=20 Ass=3Dn, 25 S.W.3d 845, 853 = (Tex.=20 App.CHouston [14th Dist.] = 2000, pet.=20 denied).  The Association requested attorney=3Ds fees pursuant to = the=20 restrictive covenants, section 5.006 of the Texas Property Code, = and=20 section 38.001 of the Texas Civil Practice and Remedies = Code.  Haas=20 does not seem to dispute that, at least, section 5.006 of the = Texas=20 Property Code generally authorizes an award of = attorney=3Ds fees in this = case. =20 Section 5.006(a) of the Property Code provides, AIn an action based on = breach of=20 a restrictive covenant pertaining to real property, the court = shall allow=20 to a prevailing party who asserted the action reasonable=20 attorney=3Ds fees in addition to = the=20 party=3Ds costs and = claim.@  Tex. Prop. Code Ann. = ' 5.006(a) (Vernon = 2004);=20 Mitchell v. LaFlamme, 60 S.W.3d 123, 130 (Tex. = App.CHouston [14th Dist.] = 2000, no=20 pet.) (holding award of attorney=3Ds fees under section = 5.006 is=20 mandatory).[6]

However, Haas = contends the=20 Association was required to comply with section 209.008(a) of the = Texas=20 Property Code as a prerequisite to recovery of = attorney=3Ds fees, but the = Association did=20 not comply with that provision.  Section 209.008(a)=20 provides:

A property = owners=3D association may = collect=20 reimbursement of reasonable attorney=3Ds fees and other = reasonable=20 costs incurred by the association relating to collecting amounts,=20 including damages, due the association for enforcing restrictions = or the=20 bylaws or rules of the association only if the owner is provided a = written=20 notice that attorney=3Ds fees and costs will = be=20 charged to the owner if the delinquency or violation continues = after a=20 date certain.

Tex.=20 Prop. Code Ann.=20 ' 209.008(a) (Vernon = Supp.=20 2006).

The = Association=3Ds counsel sent a = letter to Haas=20 approximately seven weeks before filing suit.  The caption = shows,=20 ABalance Due:=20 $417.48.@  In the body, = counsel=20 stated:

The balance due of = $417.48=20 represents maintenance assessments, attorney=3Ds = fees, interest, and costs = of=20 collection through and including the date of this letter . . . = Demand is=20 hereby made upon you to pay to [the Association] $417.48 within = thirty=20 (30) days of the date of this letter. . . .  Please be = advised that=20 should we not receive payment pursuant to this demand, we will = recommend=20 that a lawsuit be filed immediately thereafter in a court of = competent=20 jurisdiction seeking recovery of the money owed our client, = together with=20 reasonable attorneys=3D fees and costs of = court.=20

(emphasis added).[7] =20

Haas contends the = Association=20 did not comply with section 209.008(a) because it demanded=20 attorney=3Ds fees as part of the = delinquency instead of demanding that the delinquency be cured = before it=20 would seek attorney=3Ds fees.  = Although the=20 Association asserts it complied with section 209.008(a), it = suggests, as=20 it did in the trial court, that section 209.008(a) does not even = apply to=20 this matter.  We agree that section 209.008(a) does not=20 apply.

Section 209.008(a) is = part of=20 the ATexas Residential = Property=20 Owners Protection Act,@ effective January 1, = 2002.  See Tex. Prop.=20 Code Ann. '' 209.001B.011 (Vernon Supp. = 2006). =20 Section 209.008(a) is not a model of clarity, and we have found = only one=20 case addressing this provision, presumably because of its recent=20 origin.  In that case, the court concluded the statute did = not apply=20 because the homeowner=3Ds association sought = a=20 temporary injunction and the statute applies to Acollection = matters,@ but the court did = not=20 elaborate on what it meant by Acollection = matters.@  See = Tees v.=20 East Lake Woods Homeowners Ass=3Dn, No. = 12‑04‑00020‑CV, 2006 WL=20 133229, *6  (Tex. App.CTyler 2006, no pet. = h.) (mem.=20 op.).

Our ultimate goal in = construing=20 a statute is to give effect to the Legislature=3Ds intent as expressed = in the=20 language of the statute.  See Horizon/CMS Healthcare Corp. = v.=20 Auld, 34 S.W.3d 887, 892 (Tex. 2000).  Based on the = language of=20 section 209.008(a), we conclude that it does not apply to=20 attorney=3Ds fees incurred = merely to=20 collect delinquent assessments or enforce a lien due to nonpayment = of the=20 assessments.  The statute specifically applies to=20 attorney=3Ds fees Arelating to = collecting amounts,=20 including damages, due the association for enforcing = restrictions.@ Tex. Prop. Code Ann. = ' 209.008(a) (emphasis = added).  The assessments are not Aamounts, including = damages, due=20 the association for enforcing = restrictions.@  We read this = phrase as=20 describing, for example, situations where an association has = incurred=20 costs or sustained damages to remedy a violation or has levied a = fine for=20 a violation.[8]

We find harmony in = the statute=20 by reading section 209.008(a) in the context of the entire act, = especially=20 the immediately preceding provisions.  See City of = San=20 Antonio  v. City of Boerne, 111 S.W.3d 22, 25 (Tex. 2003) = (recognizing that, in construing a statute, appellate court = determines=20 legislative intent from the entire act and not just its isolated = portions=20 and, thus, reads the statute as a whole and interprets it to give = effect=20 to every part).  Section 209.006, entitled ANotice Required = Before=20 Enforcement Action,@ provides as=20 follows:

(a) Before a property owners=3D association may suspend an = owner=3Ds right to use a common area, file a = suit against=20 an owner other than a suit to collect a regular or special = assessment=20 or foreclose under an association=3Ds lien,=20 charge an owner for property damage, or levy a fine for a = violation of the=20 restrictions or bylaws or rules of the association, the = association or its=20 agent must give written notice to the owner by certified mail, = return=20 receipt requested.

(b) The notice must:

(1) describe the violation or property = damage that=20 is the basis for the suspension action, charge, or fine and state = any=20 amount due the association from the owner;  and

(2) inform the owner that the = owner:

(A) is entitled to a reasonable period = to cure the=20 violation and avoid the fine or suspension unless the owner was = given=20 notice and a reasonable opportunity to cure a similar violation = within the=20 preceding six months;  and

(B) may request a = hearing under=20 Section 209.007 on or before the 30th day after the date the owner = receives the notice.

Tex.=20 Prop. Code Ann.=20 ' 209.006 (Vernon = Supp. 2006)=20 (emphasis added).

Section 209.007 = describes the=20 procedures governing the hearing referenced in section = 209.006. =20 See Tex. Prop. = Code=20 Ann. ' 209.007 (Vernon = Supp.=20 2006).  Section 209.007(d) provides that AThe notice and = hearing=20 provisions of Section 209.006 and this section do not apply if the = association files a suit . . . that includes foreclosure as a = cause of=20 action.@  Id. = ' 209.007(d).  = Therefore,=20 an association is not even required to give a homeowner notice and = an=20 opportunity to cure pursuant to section 209.006 before filing suit = to=20 collect assessments or foreclose a lien due to unpaid = assessments. =20 See id. '' 209.006; = 209.007(d). =20 Thus, our construction of section 209.008(a) is consistent with = the=20 manifested intent of the Legislature to exempt such suits from the = notice=20 requirements otherwise applicable when an association incurs costs = or=20 charges a homeowner to enforce a restriction.

We conclude that the=20 Association was not required to comply with the notice = prerequisite of=20 209.008(a) to recover attorney=3Ds fees in this = case. =20 Accordingly, the fact that the Association included = attorney=3Ds fees when demanding = that Haas=20 pay the delinquent assessments is immaterial to the=20 Association=3Ds ability to recover=20 attorney=3Ds fees in this = suit.  We=20 overrule Haas=3Ds fourth = issue.

B.       =20 Amount of Attorney=3Ds Fees

Finally, Haas asserts = that the=20 attorney=3Ds fees awarded = pursuant to=20 section 5.006 of the Property Code were excessive.  To = determine=20 reasonable attorney=3Ds fees under section = 5.006, the=20 court shall consider: (1) the time and labor required; (2) the = novelty and=20 difficulty of the questions; (3) the expertise, reputation, and = ability of=20 the attorney;  and (4) any other factor. Tex. Prop. Code Ann. = ' 5.006(b) (Vernon = 2004). =20 The reasonableness of attorney=3Ds fees recoverable = under=20 section 5.006 is a question of fact for the trier of fact.  = See=20 Jim Rutherford Invs., 25 S.W.3d at 853; Gorman v. = Countrywood Prop.=20 Owners Ass=3Dn, 1 S.W.3d 915, 918 = (Tex.=20 App.CBeaumont 1999, pet.=20 denied).

In this case, the = trial court=20 made a finding of fact that the following attorney=3Ds fees were = reasonable and=20 necessary and entered judgment accordingly: $5,500 through the = trial;=20 $1,000 if Haas files a motion for new trial; $3,500 if he appeals = to a=20 court of appeals; $3,500 if he files a petition for review in the = Texas=20 Supreme Court; and $1,000 if the petition for review is granted = and appeal=20 is taken to the Supreme Court.  Haas asserts that these fees = were not=20 reasonable because this case was a simple, routine property=20 owners=3D association suit to = collect a=20 debt and enforce a lien, involving minimal pleadings and a short=20 trial.  Although Haas does not specifically attack the = finding of=20 fact or the sufficiency of the evidence to support this finding, = we read=20 his complaint as a challenge to the sufficiency of the evidence = supporting=20 the finding.

Findings of fact in a = bench=20 trial have the same force and dignity as a jury=3Ds verdict upon jury=20 questions.  Arrellano v. State Farm Fire and Cas. Co., = 191=20 S.W.3d 852, 855B56 (Tex. = App.CHouston [14th Dist.] = 2006, no=20 pet.).  We conduct a legal and factual sufficiency review of = a trial=20 court=3Ds findings by the = same=20 standards applied when reviewing evidence supporting a = jury=3Ds answer.  = Id. at=20 856.  If a party attacks the legal sufficiency of the = evidence=20 supporting an adverse finding on an issue on which it did not have = the=20 burden of proof, the party must demonstrate on appeal no evidence = supports=20 the adverse finding. Id.  When a party attacks the = factual=20 sufficiency of a finding, we set aside the finding only if it is = so=20 contrary to the overwhelming weight and preponderance of the = evidence that=20 it is clearly wrong and manifestly unjust. Id.

Stephen Hamilton, one = of the=20 Association=3Ds attorneys, who had = practiced=20 law for twenty years and was Board-Certified in civil trial law = testified=20 regarding the Association=3Ds = attorney=3Ds fees.  With = respect to=20 the time and labor required, Hamilton testified that his firm = performed=20 the following work which he considered reasonable and = necessary: =20 drafted a demand letter; filed and served a petition; obtained a = title=20 report; reviewed the divorce decree between Haas and his former = wife to=20 ascertain the status of title to the property; prepared a nonsuit = of Mrs.=20 Haas, who had also been sued; prepared a motion for default = judgment when=20 Haas failed to timely answer; reviewed the answer Haas eventually = filed=20 and later his amended answer; researched and briefed the = jurisdictional=20 issue after Haas filed a plea to the jurisdiction; propounded = requests for=20 disclosure, requests for admissions, interrogatories, and requests = for=20 production; reviewed Haas=3Ds answers to these = discovery=20 requests; obtained a trial setting; prepared a motion for summary=20 judgment, reviewed Haas=3Ds response, and filed = a reply;=20 attended a pretrial conference; and prepared for=20 trial.

As to the novelty and = difficulty of the questions involved, Hamilton testified that it = is highly=20 unusual for a defendant to challenge jurisdiction in a suit to = recover=20 assessments.  He also testified that it is unusual for an = assessment=20 case to proceed to trial when, as here, the defendant has admitted = that=20 the assessments, interest, late charges, and reasonable=20 attorney=3Ds fees are secured by = a lien=20 against the property.  We also note that the legal issues = concerning=20 jurisdiction and section 209.008(a) raised in this matter were not = routine=20 because we have had to perform a somewhat extensive legal analysis = with=20 respect to those issues.

Finally, concerning = the=20 expertise, reputation, and ability of the attorney, Hamilton = testified=20 that his firm handles collection cases on a regular = basisCAMany times each = month. =20 Dozens of times.  Hundreds of times.@  Although this = testimony=20 is somewhat general, the trial court could have considered it as = evidence=20 of the expertise, reputation, and ability of the = Association=3Ds attorneys.  We = conclude=20 that the evidence is factually and legally sufficient to support = the trial=20 court=3Ds finding with = respect to=20 reasonable and necessary attorney=3Ds fees based on the = factors=20 outlined in section 5.006(b).  We overrule Haas=3Ds fifth = issue.

We affirm the = judgment of the=20 trial court.

 

 

/s/       =20 Charles W. Seymore

Justice

 

Judgment rendered and = Opinion=20 filed December 14, 2006.

Panel consists of = Justices=20 Anderson, Edelman, and Seymore.

 


[1]  The restrictive covenants provide = that the=20 annual assessments, interest, costs, and reasonable = attorneys=3D fees, Ashall be a charge on the Lot and shall = be a=20 continuing lien upon the Lot against which each such assessment = was=20 made.@ The restrictive covenants further = provide that,=20 in the event of nonpayment, AThe Association may bring an action at = law against=20 the Owner personally obligated to pay the assessment, or = foreclose=20 the lien against the Lot involved.@ (emphasis added).

[2]  In its prayer, the Association = again=20 requested all amounts that would be outstanding at the time of = trial but=20 did not plead a total amount in controversy in the=20 prayer.

[3]  Specifically, he introduced the=20 Association=3Ds demand letter sent seven weeks before = it filed=20 suit, stating that the balance due was $417.48, which Arepresents maintenance assessments,=20 attorney=3Ds fees, interest, and costs of=20 collection.@  The Association did not specify = how much of=20 this amount was attorney=3Ds fees, interest, and costs, which = cannot be=20 considered when determining the amount in controversy.  = See=20 Tex. = Gov=3Dt Code Ann.=20 ' 25.0003(c)(1).  However, the actual = 2003=20 assessment was necessarily less than $500.  The Association = did not=20 present any controverting evidence.  Instead, it argued, = albeit=20 incorrectly, that attorney=3Ds fees, interest, and costs are = considered when=20 determining the amount in controversy.  See=20 id.

[4]  Haas incorrectly characterizes = the=20 Association=3Ds request for the 2004 assessments as a = claim for=20 anticipatory breach.  He states the Association had no claim = for=20 anticipatory breach because it could not know whether he would own = the=20 home and thus have any obligation when the assessments fell = due. =20 AAnticipatory breach@ is a defined cause of action available = when a=20 party is obligated to make future payments of money to another and = absolutely repudiates the obligation without just excuse.  = See=20 Taylor Publ=3Dg Co. v. Sys. Mktg. Inc., 686 S.W.2d 213, 217 (Tex. = App.CDallas 1984, writ ref=3Dd n.r.e.).  The Association did not = use the=20 term Aanticipatory breach@ and effectively acknowledged in the = petition that=20 the obligation to pay the 2004 assessments would arise after it = filed its=20 petition.  Nonetheless, Haas correctly suggests that the = Association=20 pleaded a claim that had not yet accrued.

[5]  We first stated that the June and = July=20 delinquencies alone put the amount in controversy over the = jurisdictional=20 limit of the trial court because payments were due in advance and = the=20 lessor filed suit in mid-July.  Williams, 562 S.W.2d = at=20 535.  But we then held that, regardless of when the lessor = filed=20 suit, he still alleged an amount in excess of the jurisdictional = limit of=20 the court by seeking all future delinquencies as they = accrued. =20 See id. at 535B36.

[6]  In addition, the restrictive = covenants=20 provide that the annual assessments, together with interest, = costs, and=20 reasonable attorney=3Ds fees, shall be a continuing lien upon = the=20 property and the personal obligation of the property owner at the = time the=20 assessment was due.  Section 38.001(8) of the Civil Practice = and=20 Remedies Code provides that a party may recover reasonable=20 attorney=3Ds fees when it prevails on a contract = claim. =20 Tex. Civ. Prac. & = Rem. Code=20 Ann. ' 38.001(8) (Vernon 1997); see = Hassell=20 Constr. Co., Inc. v. Stature Commercial Co., Inc., 162 = S.W.3d=20 664, 668 (Tex. App.CHouston [14th Dist.] 2005, no pet.) = (holding award=20 of attorney=3Ds fees to party prevailing on contract = claim is=20 mandatory under section 38.001 if there is proof of the = reasonableness of=20 the fees).

[7]  This letter was the only demand = letter=20 introduced into evidence, and it appears undisputed that it was = the only=20 demand letter sent.

[8]  Section 209.008(a) does not state = that it=20 applies to attorney=3Ds fees Arelating to collecting amounts, = including damages,=20 due the association under the restrictions@ or to attorney=3Ds fees Arelating to enforcing=20 restrictions.@  In such cases, it would = presumably apply to=20 attorney=3Ds fees incurred to collect assessments = or enforce=20 a lien due to nonpayment of assessments.  Rather, the statute = applies=20 to attorney=3Ds fees Arelating to collecting amounts, = including damages,=20 due the association for enforcing = restrictions.@ Tex.=20 Prop. Code Ann. ' 209.008(a) (emphasis added).  In = construing=20 a statute, we give effect to all its words and, if possible, do = not treat=20 any statutory language as mere surplusage. =20 Cont=3Dl Cas. Ins. Co. v. Functional = Restoration=20 Assocs., 19 S.W.3d 393, = 402 (Tex.=20 2000).  Thus, we must give effect to the word Afor.@

------=_NextPart_000_0015_01C732BB.979472F0 Content-Type: image/gif Content-Transfer-Encoding: base64 Content-Location: http://www.14thcoa.courts.state.tx.us/resource/opinions/images/icoEMail.gif R0lGODlhFAAPAKIAAAAAgIAAAP///8DAwICAgAAAAAAAAAAAACwAAAAAFAAPAAADNCi63P4wykaq vba4Mrr/ndaITxAM5JI2JrotQCwr7jjVDCnPAq7eKwEHRAwWjshkcsJsShIAOw== ------=_NextPart_000_0015_01C732BB.979472F0 Content-Type: text/css; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable Content-Location: http://www.14thcoa.courts.state.tx.us/resource/includes/oca.css .TitleBlue { FONT-WEIGHT: bold; FONT-SIZE: 14pt; COLOR: #000099; LINE-HEIGHT: = normal; FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, = sans-serif; TEXT-ALIGN: left } .TitleBlueCenter { FONT-WEIGHT: bold; FONT-SIZE: 14pt; COLOR: #000099; LINE-HEIGHT: = normal; FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, = sans-serif; TEXT-ALIGN: center } .TitleMaroon { FONT-WEIGHT: bold; FONT-SIZE: 14pt; COLOR: maroon; LINE-HEIGHT: normal; = FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; = TEXT-ALIGN: left } .TitleWhite { FONT-WEIGHT: bold; FONT-SIZE: 14pt; COLOR: white; LINE-HEIGHT: normal; = FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; = TEXT-ALIGN: left } .TitleBlack { FONT-WEIGHT: bold; FONT-SIZE: 14pt; COLOR: black; LINE-HEIGHT: normal; = FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; = TEXT-ALIGN: left } .NavWhite { FONT-WEIGHT: bold; FONT-SIZE: 10pt; COLOR: white; LINE-HEIGHT: normal; = FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; = TEXT-DECORATION: none } A.NavWhite:hover { TEXT-DECORATION: underline } .BreadCrumbs { FONT-WEIGHT: bold; FONT-SIZE: 10pt; COLOR: #000099; LINE-HEIGHT: = normal; FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, = sans-serif } A.BreadCrumbs { FONT-WEIGHT: bold; FONT-SIZE: 10pt; COLOR: #000099; LINE-HEIGHT: = normal; FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, = sans-serif; TEXT-DECORATION: underline } A.BreadCrumbs:hover { COLOR: blue } .TextNormal { FONT-WEIGHT: normal; FONT-SIZE: 10pt; COLOR: black; LINE-HEIGHT: = normal; FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, = sans-serif } .TextJustify { FONT-WEIGHT: normal; FONT-SIZE: 10pt; VERTICAL-ALIGN: top; COLOR: = black; FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, = sans-serif; TEXT-ALIGN: justify } A.TextNormal { FONT-WEIGHT: normal; FONT-SIZE: 10pt; COLOR: #000099; FONT-FAMILY: = Tahoma, Arial, Helvetica, sans-serif; TEXT-DECORATION: underline } A.TextNormal:hover { FONT-WEIGHT: bold } .TextSmall { FONT-WEIGHT: normal; FONT-SIZE: 10pt; VERTICAL-ALIGN: top; FONT-FAMILY: = Arial Narrow } .TextSmallBlue { FONT-WEIGHT: normal; FONT-SIZE: 10pt; VERTICAL-ALIGN: top; COLOR: = #000099; FONT-FAMILY: Arial Narrow } .TextSmallJust { FONT-WEIGHT: normal; FONT-SIZE: 10pt; VERTICAL-ALIGN: top; FONT-FAMILY: = Arial Narrow; TEXT-ALIGN: justify } A.TextSmall { COLOR: #000099; TEXT-DECORATION: underline } A.TextSmallJust { COLOR: #000099; TEXT-DECORATION: underline } A.TextSmall:hover { FONT-WEIGHT: bold } A.TextSmallJust:hover { FONT-WEIGHT: bold } .TextSmallWhite { FONT-WEIGHT: normal; FONT-SIZE: 10pt; VERTICAL-ALIGN: top; COLOR: = white; FONT-FAMILY: Arial Narrow } .TextWhite { FONT-WEIGHT: normal; FONT-SIZE: 10pt; COLOR: white; FONT-FAMILY: = Tahoma, Arial, Helvetica, sans-serif } A.TextWhite { =09 } A.TextWhite:hover { FONT-WEIGHT: bold } .LinksSite { FONT-WEIGHT: normal; FONT-SIZE: 9pt; COLOR: #000099; FONT-FAMILY: Arial = Narrow; TEXT-DECORATION: none } A.LinksSite { =09 } A.LinksSite:hover { FONT-WEIGHT: bold } .TextNotify { FONT-WEIGHT: normal; FONT-SIZE: 9pt; COLOR: #000099; FONT-FAMILY: Arial = Narrow } .SiteMaster { FONT-WEIGHT: bold; FONT-SIZE: 14pt; COLOR: #000099; LINE-HEIGHT: = normal; FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, = sans-serif; TEXT-DECORATION: underline } A.SiteMaster { LINE-HEIGHT: normal; TEXT-DECORATION: underline } A.SiteMaster:hover { COLOR: blue } .SiteMenu { FONT-WEIGHT: bold; FONT-SIZE: 10pt; COLOR: #000099; LINE-HEIGHT: = normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; = TEXT-DECORATION: none } A.SiteMenu { FONT-WEIGHT: bold; TEXT-DECORATION: none } A.SiteMenu:hover { COLOR: blue } .SiteBase { FONT-WEIGHT: bold; FONT-SIZE: 9pt; COLOR: #000099; LINE-HEIGHT: normal; = FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; = TEXT-DECORATION: none } A.SiteBase { FONT-WEIGHT: bold; COLOR: maroon; FONT-FAMILY: Tahoma, Arial, = Helvetica, sans-serif; TEXT-DECORATION: none } A.SiteBase:hover { COLOR: blue } .ErrorNormal { FONT-WEIGHT: normal; FONT-SIZE: 10pt; VERTICAL-ALIGN: top; COLOR: red; = FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif } .ErrorSmall { FONT-WEIGHT: normal; FONT-SIZE: 10pt; VERTICAL-ALIGN: top; COLOR: red; = FONT-FAMILY: Arial Narrow } .SystemMSG { FONT-WEIGHT: bold; FONT-SIZE: 10pt; VERTICAL-ALIGN: top; COLOR: white; = FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; BACKGROUND-COLOR: = navy } .SystemErrorMSG { FONT-WEIGHT: bold; FONT-SIZE: 10pt; VERTICAL-ALIGN: top; COLOR: white; = FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; BACKGROUND-COLOR: red } .buttonUnused { PADDING-RIGHT: 1pt; PADDING-LEFT: 1pt; FONT-WEIGHT: normal; FONT-SIZE: = 9pt; PADDING-BOTTOM: 1pt; MARGIN: 1pt; COLOR: #fff5d7; PADDING-TOP: 1pt; = BACKGROUND-COLOR: #576a9d; font-face: Tahoma, Arial, Helvetica, = sans-serif } .buttonTanUnused { PADDING-RIGHT: 1pt; PADDING-LEFT: 1pt; FONT-WEIGHT: normal; FONT-SIZE: = 9pt; PADDING-BOTTOM: 1pt; MARGIN: 1pt; COLOR: #576a9d; PADDING-TOP: 1pt; = BACKGROUND-COLOR: #fff5d7; font-face: Tahoma, Arial, Helvetica, = sans-serif } .TextLargeBlue { FONT-WEIGHT: bold; FONT-SIZE: 12pt; COLOR: #000099; LINE-HEIGHT: = normal; FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, = sans-serif; TEXT-ALIGN: left } .DocketHeaderTitle { FONT-WEIGHT: bold; FONT-SIZE: 14pt; COLOR: black; LINE-HEIGHT: normal; = FONT-FAMILY: Tahoma, Arial, ' Helvetica', sans-serif; TEXT-ALIGN: center } .TextLargeBlack { FONT-WEIGHT: bold; FONT-SIZE: 11pt; COLOR: black; LINE-HEIGHT: normal; = FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; = TEXT-ALIGN: left } .TextLargeBlackcenter { FONT-WEIGHT: bold; FONT-SIZE: 11pt; COLOR: black; LINE-HEIGHT: normal; = FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; = TEXT-ALIGN: center } .TextBlue { FONT-WEIGHT: normal; FONT-SIZE: 10pt; COLOR: #000099; LINE-HEIGHT: = normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif } A.TextBlue { FONT-WEIGHT: normal; FONT-SIZE: 10pt; COLOR: #000099; LINE-HEIGHT: = normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; = TEXT-DECORATION: none } .TextRed { FONT-WEIGHT: normal; FONT-SIZE: 12pt; COLOR: red; LINE-HEIGHT: normal; = FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif } .TextHidenGray { FONT-SIZE: 0pt; COLOR: #ebebe1; LINE-HEIGHT: normal; FONT-FAMILY: = Tahoma, Arial, Helvetica, sans-serif; TEXT-ALIGN: left } .Time { FONT-WEIGHT: bold; FONT-SIZE: 10px; COLOR: red; LINE-HEIGHT: 4em; = FONT-FAMILY: Arial, Helvetica, sans-serif; TEXT-ALIGN: center } ------=_NextPart_000_0015_01C732BB.979472F0--