Jorge Salazar v. Steeplechase Owner's Association, Inc.--Appeal from County Court at Law No 3 of Bexar County

heading for memo No. 04-99-00306-CV
Jorge SALAZAR,
Appellant
v.
STEEPLECHASE OWNER'S ASSOCIATION, INC.,
Appellee
From County Court at Law No. 3, Bexar County, Texas
Trial Court No. 245590
Honorable Shay Gebhardt, Judge Presiding

Opinion by: Paul W. Green, Justice

Sitting: Tom Rickhoff, Justice

Catherine Stone, Justice

Paul W. Green, Justice

Delivered and Filed: March 8, 2000

AFFIRMED

Appellant, Jorge Salazar (Salazar), challenges the grant of summary judgment upholding the foreclosure of Salazar's condominium unit under a lien for nonpayment of homeowner fees pursuant to Tex. Prop. Code Ann. 82.113 (Vernon 1995). In four issues on appeal, Salazar claims summary judgment was improper because (1) there is no evidence of restrictive covenants obligating Salazar to pay condominium maintenance fees; (2) there is a question of fact whether the maintenance fees were waived; (3) foreclosure may not be based on a lien for assessments consisting solely of fines; and (4) there is a genuine issue of fact regarding whether Salazar was in default on his maintenance fees at the time notice of foreclosure was given. We affirm.

Background

Salazar owned a condominium unit at the Steeplechase Condominiums. The appellee, Steeplechase Owner's Association, Inc. (Steeplechase), employed Capital Consultants Management Corporation (CCMC) to collect maintenance fees and manage the property. Salazar had a history of late payments on his maintenance fees. As a result, on August 19, 1996, Salazar not only owed $408.00 in back maintenance fees,(1) but certain late charges and legal fees had accrued in connection with the collection of prior late assessments.

On August 19, 1996, Salazar tendered a check for $408.00 to Marye Fazekas of CCMC for payment of his account. She gave him a copy of a computer printout of his account as of that date on which she wrote, "When ck #1002 posted balance," apparently waiving the late charges and accrued legal fees.(2)

On September 25, 1996, Rosemary Jackson, counsel for Steeplechase, sent Salazar a letter advising he was once again delinquent, this time on his September 1996 maintenance fee of $102.00, and demanding payment by October 15, 1996, or foreclosure proceedings would begin. This letter also demanded $25.00 in late charges and $657.93 in legal fees. On October 15, 1996, Jackson sent a second letter to Salazar, notifying him of the foreclosure scheduled for November 5, 1996, and instructing he could avoid the foreclosure action by payment of $204.00 in assessments, plus late charges and legal fees, prior to the sale. The condominium was thereafter sold at foreclosure auction on November 5, 1996. On June 16, 1998, Salazar filed suit against Steeplechase, seeking damages for wrongful foreclosure due to Steeplechase's failure to properly account for payments made by Salazar on his account.(3)

Standard of Review

We review a summary judgment de novo. To prevail on summary judgment, the movant must show there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Nixon v. Mr. Property Management, Co., 690 S.W.2d 546, 548-49 (Tex. 1985). In deciding whether a disputed fact issue precludes summary judgment, we take evidence favorable to the nonmovant as true. Nixon, 690 S.W.2d at 548-49. We indulge every reasonable inference in favor of the nonmovant and resolve any doubts in the nonmovant's favor. Montgomery v. Kennedy, 669 S.W.2d 309,

310-11 (Tex. 1984). When a trial court's order does not specify the grounds for the ruling, the summary judgment may be affirmed on any meritorious theory advanced in the motion. See Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989).

Issue One

Salazar says Steeplechase has no evidence of default to support foreclosure because Steeplechase failed to produce the contract or declaration of restrictive covenants from which the amount could be calculated. Salazar did not present this objection in the trial court. Although Salazar pointed to what he considered conflicting evidence as to the amount owed, he never claimed Steeplechase had no right to collect assessments for maintenance of the condominium units. He never contested the account summaries showing $102.00 assessed per month as maintenance fees.

The only issue before the trial court related to the amount of the assessments owed, not Steeplechase's right to collect assessments. The declaration containing the restrictive covenants was not necessary summary judgment evidence because there was no dispute as to its contents. See White v. Bath, 825 S.W.2d 227, 231 (Tex. App.-Houston [14th Dist.] 1992, writ denied), cert. denied, 507 U.S. 1039 (1993). Further, a nonmovant must present every ground to defeat summary judgment in writing to the trial court, and if he fails to do so, he may not raise those grounds on appeal. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678-79 (Tex. 1979); Cadle Co. v. Henderson, 982 S.W.2d 543, 545 (Tex. App.-San Antonio 1998, no pet.). Because the restrictions were not necessary summary judgment evidence and Salazar failed to complain of the lack of evidence in the trial court, we overrule his first issue.

Issue Two

In his second issue, Salazar claims Steeplechase waived the payment of amounts owed prior to August 19, 1996. Again, Salazar failed to present this claim to the trial court. Steeplechase, in its motion for summary judgment, anticipated that Salazar might raise an issue of waiver. The affidavit of Marye Fazekas states she did not agree to waive any past or future assessments. She testified she had specific instructions that she could not waive such assessments.

In his response to the motion for summary judgment, Salazar never argued waiver. He presented no evidence of waiver.(4) The response states, " as of August 19, 1996, one of [Steeplechase's] versions of [Salazar's] account indicated that there was no amount due and owing to [Steeplechase] by [Salazar]." Salazar's affidavit states he delivered a check for $408.00 to Marye Fazekas on August 19, 1996, and she advised him his account balance would be zero once the check cleared. Salazar does not testify he believed the past due maintenance fees of $408.00 were waived and his check was intended to cover future payments for September through December. His response to the motion for summary judgment does not claim a waiver of all past due amounts, but only argues the notice of foreclosure was in conflict with Steeplechase's own records. Because Salazar failed to present any evidence or claim of waiver to the trial court, we overrule his second issue. See Clear Creek Basin Auth., 589 S.W.2d at 678-79; Cadle Co. v. Henderson, 982 S.W.2d at 545.

Issue Three

Salazar claims Steeplechase violated Tex. Prop. Code Ann. 82.113(e) (Vernon 1995) by foreclosing based on an assessment consisting solely of fines. This is yet another ground for defeat of summary judgment that was not raised in the trial court. See Clear Creek Basin Auth., 589 S.W.2d at 678-79; Cadle Co. v. Henderson, 982 S.W.2d 543, 545 (Tex. App.-San Antonio 1998, no pet.). We overrule issue number three.

Issue Four

Finally, Salazar argues the notice of foreclosure was improper because there is no evidence Salazar was in default at the time notice was given. It appears this claim may be based in part on the waiver argument we have already overruled. Like the waiver argument, this claim of improper notice was not made in the trial court. We consider it only to determine whether the motion for summary judgment was legally insufficient. See Clear Creek, 589 S.W.2d at 678; accord Fisher v. Capp, 597 S.W.2d 393, 397 (Tex. Civ. App.-Amarillo 1980, writ ref'd n.r.e.).

The demand letter of September 25, 1996, states Salazar is delinquent in the payment of $102.00 in assessments.(5) The account histories presented as evidence in Steeplechase's motion for summary judgment show $102.00 assessed as the monthly maintenance fee on September 1, 1996. The notice of foreclosure dated October 15, 1996, clearly states Salazar is in default for failure to timely pay $204.00 in assessments. Again, the account history shows $102.00 assessed on September 1 and on October 1 for a total of $204.00 in maintenance fees.

Salazar did not object to any of Steeplechase's evidence in the trial court. Instead, he makes an irrelevant argument that the September letter could not have included any assessment for October or November. The September notice letter was sent more than 20 days prior to the notice of foreclosure pursuant to Tex. Prop. Code Ann. 51.002(d) (Vernon 1995). At any time prior to the notice of foreclosure, Salazar could have cured his default. However, assessments, late charges, and legal fees continued to accrue up to the date of the foreclosure sale. Amounts accrued up to October 15 are reflected in the October 15, 1996, notice of foreclosure.

The notice of foreclosure was sent 21 days prior to the foreclosure sale and provided Salazar with another opportunity to cure his default up to the date of the sale on November 5, 1996. This is sufficient to meet the requirements of Tex. Prop. Code Ann. 51.002(b) Vernon 1995). We hold the evidence is sufficient to show Steeplechase complied with the statutory requirements for foreclosure of its lien and Salazar was in default at the time notice of foreclosure was given. There is no controverting evidence in the record. We overrule issue four.

Conclusion

Because we overrule all of Salazar's issues, we affirm the judgment of the trial court.

PAUL W. GREEN,

JUSTICE

DO NOT PUBLISH

1. Monthly maintenance fees accrued at $102.00 per month. As of August 1, 1996, Salazar owed maintenance fees for May, June, July, and August of 1996.

2. At the bottom of the printout, the current fees were listed by category and then added for a complete account total. Marye circled the maintenance fee total of $408.00 and wrote by the side, "paid 8/19/96." She struck through the late charge total and out to the side of the legal fee total, she wrote, "Konen-per Denise credit on August invoice." She then struck through the printed account total, which included the maintenance fee, the late charges and the legal fees, and wrote "Bal $408.00." Marye also made a separate notation that reads "Sept - Dec 1996." There is no indication why this notation is on the printout and no testimony from any witness as to what it might mean.

3. Salazar also alleged Steeplechase violated certain unspecified restrictive covenants, thus violating Tex. Prop. Code 202.004. This contention is waived because it was not asserted in response to Steeplechase's motion for summary judgment. See Cadle Co. v. Henderson, 982 S.W.2d 543, 545 (Tex. App.-San Antonio 1998, no pet.).

4. As grounds for summary judgment, Steeplechase argued Salazar was in default on his maintenance fee assessment, a ground designed to defeat Salazar's claim of wrongful foreclosure. Salazar argued in his response to the motion for summary judgment that Steeplechase had not negated one element of each of Salazar's claims for violation of the DTPA, conversion, negligence and failure to conduct a "commercially reasonable" sale under the Texas Business & Commerce Code. None of these claims are asserted in the live pleading, the Plaintiff's First Amended Original Petition. Accordingly, it is difficult for this court to determine what evidence Salazar thought he was presenting and what claim he thought that evidence would support.

5. Neither the demand letter nor the notice of foreclosure is required to state the amount of default. See Tex. Prop. Code Ann. 51.002(b), (d) (Vernon 1995); Sanders v. Shelton, 970 S.W.2d 721, 726 (Tex. App.-Austin 1998, pet. denied).