Bever Properties, LLC, and Jesse M. Taylor, D.D.S.,P.A., v. Jerry Huffman Custom Builder, L.L.C, et al

 
AFFIRM in part, REVERSE and REMAND in part and Opinion Filed November
16, 2011
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-10-00323-CV
............................
BEVER PROPERTIES, L.L.C. AND JESSE M. TAYLOR, D.D.S., P.A., Appellants
V.
JERRY HUFFMAN CUSTOM BUILDER,, L.L.C., A/K/A JERRY HUFFMAN
CUSTOM BUILDERS, L.L.C.; PLANO PARKWAY OFFICE CONDOMINIUMS,
A/K/A PLANO PARKWAY OFFICE OWNERS ASSOCIATION;
DR. MARY ELLEN KIRWAN, D/B/A KIRWAN CHIROPRACTIC;
DR. JOJO CHEUNG, D.D.S., D/B/A ESTHETIC IMAGE DENTISTRY, Appellees
 
.............................................................
On Appeal from the 366th Judicial District Court
Collin County, Texas
Trial Court Cause No. 366-2512-04
.............................................................
OPINION
Before Justices Morris, O'Neill, and Fillmore
Opinion By Justice Fillmore
 
Appellants Bever Properties, L.L.C. and Jesse M. Taylor, D.D.S.,
P.A. appeal the summary judgments granted appellees Jerry Huffman Custom
Builder, L.L.C., a/k/a Jerry Huffman Custom Builders, L.L.C.; Plano
Parkway Office Condominiums, a/k/a Plano Parkway Office Owners
Association; Dr. Mary Ellen Kirwan, d/b/a Kirwan Chiropractic; and Dr.
JoJo Cheung, D.D.S., d/b/a Esthetic Image Dentistry, and the denial of
appellants' motion for summary judgment. In three issues, appellants
contend the trial court erred (1) in granting summary judgment in favor
of appellee Huffman on a ground not addressed in appellees' motions and
 
in granting summary judgment in favor of appellees because appellants'
summary judgment evidence raised material issues of fact, (2) in
granting appellees summary judgment on their requests for attorney's
fees because the grounds relied upon by appellees for recovery of
attorney's fees cannot support such recovery, and (3) in denying
appellants' request for summary judgment on appellees' recovery of
attorney's fees because appellees are not entitled to recover attorney's
fees as a matter of law. We affirm the trial court's judgment in part,
reverse the trial court's judgment in part, and remand to the trial
court for further proceedings consistent with this opinion.
Background
This is an appeal of summary judgments granted by the trial
court in a lawsuit brought by the owner of an office condominium unit,
appellant Bever Properties, L.L.C. (Bever Properties), and the lessee of
that unit, appellant Jesse M. Taylor, D.D.S., P.A. (Taylor D.D.S.,
P.A.), against the developer of the office condominium project, appellee
Jerry Huffman Custom Builder, L.L.C., a/k/a Jerry Huffman Custom
Builders, L.L.C. (Huffman); the office condominium association, Plano
Parkway Office Condominiums, a/k/a Plano Parkway Office Owners
Association (PPOC); and office condominium unit owners Dr. Mary Ellen
Kirwan, d/b/a Kirwan Chiropractic (Kirwan), and Dr. JoJo Cheung, D.D.S.,
d/b/a Esthetic Image Dentistry (Cheung).
In April 2003, Huffman purchased real property located in Plano,
Texas, for the purpose of developing an office condominium. See
 
Footnote 1 In September 2003, Huffman filed a condominium declaration
(the Declaration). See Footnote 2 Huffman sold three condominium
units: the first and second units in November 2003 and January 2004 to
Kirwan and Cheung, respectively, and the third unit in April 2004 to
Bever Properties. Bever Properties was issued a special warranty deed
with vendor's lien, which was subject to the Declaration. Bever
Properties subsequently leased its condominium unit to Taylor, D.D.S.,
P.A.
Multiple disputes arose between appellants, on the one hand, and
Cheung and Kirwan-the other unit owners and president and treasurer,
respectively, of PPOC-and PPOC on the other hand. See Footnote 3 The
genesis of the disputes was appellants' desire to construct prominent
signage at the location of the office condominium. Appellants filed
this case against appellees alleging that Bever Properties purchased the
condominium unit based, in part, upon assurances that prominent signage
advertising the dental practice of Taylor, D.D.S., P.A. could be placed
on the property of the office condominium. Appellants allege that
appellees' actions, representations, and failures to disclose
information misled appellants regarding signage and thwarted appellants'
placement of the desired signage on the office condominium property.
Appellants assert claims against appellees for declaratory relief, civil
conspiracy, violations of the Deceptive Trade Practices-Consumer
Protection Act (DTPA), see Tex. Bus. & Com. Code Ann. § 17.41 (West
2011), conspiracy to violate the DTPA, fraud, conspiracy to defraud,
 
negligent misrepresentation, statutory fraud, and for an accounting by
PPOC. In addition, appellants assert claims of breach of fiduciary duty
against Cheung and Kirwan and a claim of breach of warranty against
Huffman. After appellants filed this case against appellees, PPOC filed
suit against Bever Properties seeking an injunction to enjoin appellants
from violating use and occupancy restrictions in the Declaration and for
attorney's fees, and that lawsuit was consolidated with this case.
Kirwin filed a counterclaim against appellants seeking attorney's fees.
In October 2009, PPOC and Cheung filed no-evidence and
traditional motions for summary judgment on appellants' claims against
them and sought recovery of attorney's fees. Kirwan and Huffman filed
joinders of PPOC and Cheung's motions for summary judgment and sought
recovery of attorney's fees. On November 30, 2009, the trial court
signed an order granting appellees' motions for summary judgment. That
order states that appellants take nothing against appellees and the
order disposes of all claims made by appellants against appellees. The
order is silent on appellees' requests for recovery of attorney's fees.
In December 2009, PPOC and Cheung filed a traditional motion for
partial summary judgment in connection with PPOC's suit for an
injunction and sought recovery of attorney's fees. Kirwan and Huffman
filed joinders of PPOC and Cheung's motion for partial summary judgment
and sought recovery of attorney's fees. Appellants filed a no-evidence
motion for summary judgment with respect to claims asserted in
 
appellees' motions for partial summary judgment and sought recovery of
attorney's fees.
On February 1, 2010, the trial court signed an “Order on Motions
for Summary Judgment.” That order denied PPOC's motion for partial
summary judgment on its request for issuance of an injunction, granted
summary judgment on appellees' claims for attorney's fees, and denied
appellants' motion for summary judgment on appellees' claims for
attorney's fees, with the amounts of attorney's fees to be determined.
On March 1, 2010, appellants and appellees filed a rule 11
agreement with the trial court. See Tex. R. Civ. P. 11. In the rule 11
agreement, the parties agreed to dismissal of all claims not previously
decided by summary judgment. Further, without waiving objections to, or
appeal of, the trial court's November 30, 2009 and February 1, 2010
orders, appellants stipulated to the amounts of appellees' attorney's
fees.
On March 11, 2010, the trial court signed a “Final Judgment”
denying PPOC's petition for an injunction, dismissing all other claims
of appellees not previously adjudicated in the trial court's summary
judgments, and awarding appellees judgment against appellants jointly
and severally for attorney's fees as follows: $116,012.36 to Huffman;
$38,000.00 to Kirwan; $139,315.00 to PPOC; and $6,165.00 to Cheung. The
trial court's March 11, 2010 final judgment states that all other relief
not expressly granted is denied and the judgment is final and
appealable.
Appellants filed this appeal of the November 30, 2009 and
 
February 1, 2010 summary judgment orders as merged into the March 11,
2010 final judgment. See Teer v. Duddlesten, 664 S.W.2d 702, 704 (Tex.
1984) (quoting Pan Am. Petroleum Corp. v. Tex. Pac. Coal & Oil Co., 324
S.W.2d 200, 200-01 (Tex. 1959)) (“In the absence of an order of
severance, party against whom an interlocutory summary judgment has been
rendered will have his right of appeal when and not before the same is
merged in a final judgment disposing of the whole case.”); In re
Guardianship of Miller III, 299 S.W.3d 179, 184 (Tex. App.-Dallas 2009,
no pet.) (“Once the trial court disposes of all parties and claims, the
trial court's preceding interlocutory judgments or orders are merged
into the final judgment whether or not the interlocutory judgments or
orders are specifically named within the final judgment.”).
Summary Judgment Standards of Review
Appellees moved for traditional and no-evidence summary
judgments, and appellants moved for a no-evidence summary judgment,
relating to various claims made in this consolidated lawsuit. We review
a trial court's decision to grant or deny a motion for summary judgment
de novo. See Tex. Mun. Power Agency v. Pub. Util. Comm'n of Tex., 253
S.W.3d 184, 192 (Tex. 2007) (citing standard for appellate review of
grant of summary judgment and denial of cross-motion for summary
judgment). Although a denial of summary judgment normally is not
reviewable, we may review such a denial when both parties moved for
summary judgment and the trial court grants one motion and denies the
 
other. Id. In our review of such cross-motions, we review the summary
judgment evidence presented by each party, determine all questions
presented, and render the judgment that the trial court should have
rendered. Id. (citing Comm'rs Court v. Agan, 940 S.W.2d 77, 81 (Tex.
1997)).
The standard of review for a traditional summary judgment is
well known. See Tex. R. Civ. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co.,
 690 S.W.2d 546, 548 (Tex.1985). We must determine whether the movant
demonstrated that no genuine issues of material fact existed and it was
entitled to judgment as a matter of law. See Nixon, 690 S.W.2d at
548-49. We review a no-evidence summary judgment under the same legal
sufficiency standard used to review a directed verdict. See Tex.R. Civ.
P. 166a(i); Gen. Mills Rests., Inc. v. Tex. Wings, Inc., 12 S.W.3d 827,
832-33 (Tex. App.-Dallas 2000, no pet.). We must determine whether the
nonmovant produced more than a scintilla of probative evidence to raise
a fact issue on the material questions presented. See Tex. Wings, Inc.,
12 S.W.3d at 833. When analyzing traditional and no-evidence summary
judgments, we consider the evidence in the light most favorable to the
nonmovant. See Nixon, 690 S.W.2d at 548-49; Tex. Wings, Inc., 12 S.W.3d
at 833.
Appellees' October 2009 Motions for Summary Judgment
and November 30, 2009 Order Granting Appellees' Motions for Summary
Judgment
In October 2009, PPOC and Cheung filed no-evidence and
traditional motions for summary judgment “on certain claims” alleged by
 
appellants and sought dismissal of appellants' claims against them.
Kirwan and Huffman filed joinders of PPOC and Cheung's October 2009
motions for summary judgment. On November 30, 2009, the trial court
signed an order granting appellees' motions for summary judgment. That
order states that appellants take nothing against appellees and the
order disposes of all claims made by appellants against appellees.
The trial court's November 30, 2009 summary judgment order does
not state the bases for the trial court's ruling. When a party moves for
summary judgment on multiple grounds and the trial court's order
granting summary judgment does not specify the ground or grounds on
which it was based, a party who appeals that order must negate all
possible grounds upon which the order could have been granted by either
asserting a separate issue challenging each possible ground, or
asserting in a general issue that the trial court erred in granting
summary judgment and providing argument negating all possible grounds
upon which summary judgment could have been granted. See Jarvis v.
Rocanville Corp., 298 S.W.3d 305, 313 (Tex. App.-Dallas 2009, pet.
denied). If an appellant does not challenge each possible ground for
summary judgment, we must uphold the summary judgment on the
unchallenged ground. See id.; see also Adams v. First Nat'l Bank of
Bells/Savoy, 154 S.W.3d 859, 875 (Tex. App.-Dallas 2005, no pet.) (“[A]
reviewing court will affirm the summary judgment as to a particular
claim if an appellant does not present argument challenging all grounds
 
on which the summary judgment could have been granted.”).
Summary Judgment on Claims Not Appealed
Appellants asserted claims against appellees for a declaratory
judgment and a business accounting by PPOC. Appellants' brief on appeal
contains no discussion of alleged error on the part of the trial court
in granting summary judgment in appellees' favor on appellants'
pleadings for a declaratory judgment or a business accounting. Rule
38.1(h) of the rules of appellate procedure requires that the body of
appellants' brief contain a succinct, clear, and accurate statement of
the arguments made in support of any relief requested. Failure to
advance an argument, cite authority, make record references or otherwise
brief an issue effects a waiver of that issue on appeal. See Tex. R.
App. P. 38.1(h); see Shaw v. Trinity Highway Prods., LLC, 329 S.W.3d
914, 920 (Tex. App.-Dallas 2010, no pet.); Howell v. T S Commc'ns, Inc.,
130 S.W.3d 515, 518 (Tex. App.-Dallas 2004, no pet.). See Footnote 4
Therefore, we affirm the trial court's summary judgment on appellants'
claims for declaratory relief and a business accounting by PPOC.
Appellants' Claims Not Included in
Appellees' Motions for Summary Judgment
PPOC and Cheung sought no-evidence and traditional summary
judgment and dismissal of appellants' causes of action against them.
PPOC and Cheung's motions for summary judgment provided appellants fair
notice that PPOC and Cheung were seeking summary judgment on all of
appellants' claims. See Thomas v. Cisneros, 596 S.W.2d 313, 316 (Tex.
 
Civ. App.-Austin 1980, writ ref'd n.r.e.); Conquistador Petroleum, Inc.
v. Chatham, 899 S.W.2d 439, 441-42 (Tex. App.-Eastland 1995, writ
denied).
Kirwan's and Huffman's joinders of PPOC and Cheung's motions for
summary judgment stated appellants' claims against them are “virtually
identical” to those asserted against PPOC and Cheung. However, unlike
PPOC and Cheung's motions for summary judgment on appellants' claims,
Kirwan's and Huffman's prayers for relief specifically sought summary
judgments on appellants' claims against them “for declaratory relief,
breach of fiduciary duty, See Footnote 5 civil conspiracy, violations
of the Texas DTPA, fraud, conspiracy to defraud, and a negligent
misrepresentation.”
Kirwan did not request summary judgment on appellants' claims
against her for conspiracy to violate the DTPA, statutory fraud, or a
business accounting. Huffman did not request summary judgment on
appellants' claims against it for breach of warranty, conspiracy to
violate the DTPA, statutory fraud, or a business accounting. See
Footnote 6 See Tex. Emp'rs Ins. Ass'n v. Baeza, 584 S.W.2d 317, 321
(Tex. Civ. App.-Amarillo 1979, no writ) (“Though mere matter of form is
seldom controlling, yet where one asks for a specific relief which is
consistent with his pleadings and there is no general prayer for relief,
the special prayer must be regarded as evidencing the object of the plea
and ordinarily will not entitle one to a judgment different from that
for which he has prayed.”).
A trial court can render summary judgment only on those grounds
 
that are specifically addressed in a motion for summary judgment. See
Tex. Integrated Conveyor Sys. v. Innovative Conveyor Concepts, Inc., 300
S.W.3d 348, 365 (Tex. App.-Dallas 2009, pet. denied); Wright v. Sydow,
173 S.W.3d 534, 554 (Tex. App.-Houston [14th Dist.] 2004, pet. denied)
(citing McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 342
(Tex. 1993)). Where, as here, the trial court grants more relief than
the movants requested, we must reverse the summary judgment in part and
remand to the trial court the claims not addressed in the summary
judgment motions. See Page v. Geller, 941 S.W.2d 101, 102 (Tex. 1997);
see also Positive Feed, Inc. v. Guthmann, 4 S.W.3d 879, 881 (Tex.
App.-Houston [1st Dist.] 1999, no pet.) (“When, as here, a trial court
grants more relief by summary judgment than requested, by disposing of
issues never presented to it, the interests of judicial economy demand
that we reverse and remand as to those issues, but address the merits of
the properly presented claims.”).
The trial court erred in granting summary judgment in favor of
Kirwan on appellants' claims against her for conspiracy to violate the
DTPA and statutory fraud, and in granting summary judgment in favor of
Huffman on appellants' claims against it for breach of warranty,
conspiracy to violate the DTPA, and statutory fraud. Therefore, we
reverse the summary judgment on appellants' claims against Kirwan for
conspiracy to violate the DTPA and statutory fraud and appellants'
claims against Huffman for breach of warranty, conspiracy to violate the
 
DTPA, and statutory fraud. See Footnote 7
Appellees' No-Evidence Motions for Summary Judgment
In the October 2009 no-evidence motion for summary judgment of
PPOC and Cheung, joined by Kirwan and Huffman, appellees state there is
no evidence: appellants made a meaningful application for signage;
appellees made representations to appellants to induce appellants to
purchase their condominium unit; any appellee “other than Huffman” made
representations to appellants concerning the sale of the real estate,
signage or any other matter; to suggest appellees made any written
agreements to modify a sales agreement to include appellees as
representatives of Huffman or to authorize appellees to make
representations on behalf of Huffman; appellees made representations
that placement of signage in the Common Elements See Footnote 8 was
not regulated by the Declaration and condominium Bylaws; appellees took
any action to prevent appellants from placing signage on the property;
and, appellants had written permission to place a sign on the property
as required in the Declaration.
After an adequate time for discovery has passed, a party without
the burden of proof at trial may move for summary judgment on the ground
that the nonmoving party lacks supporting evidence for one or more
essential elements of its claim. Tex. R. Civ. P. 166a(i); Espalin v.
Children's Med. Ctr. of Dallas, 27 S.W.3d 675, 682-83 (Tex. App.-Dallas
2000, no pet.). Once a proper motion is filed, the burden shifts to the
nonmoving party to present evidence raising any issues of material fact.
 
Murray v. Ford Motor Co., 97 S.W.3d 888, 890-91 (Tex. App.-Dallas 2003,
no pet.). However, that burden only applies to the elements actually
challenged by the no-evidence motion. See Praytor v. Ford Motor Co., 97
S.W.3d 237, 241 (Tex. App.-Houston [14th Dist.] 2002, no pet.).
In a no-evidence motion for summary judgment, the movant must
specifically state which elements of the nonmovant's claims lack
supporting evidence. Tex. R. Civ. P. 166a(i); see also Fort Worth
Osteopathic Hosp., Inc. v. Reese, 148 S.W.3d 94, 99 (Tex. 2004) (to
prevail on no-evidence summary judgment motion, movant must allege there
is no evidence of an essential element of adverse party's cause of
action). Rule 166a(i) states “[t]he motion must state the elements as to
which there is no evidence.” Tex. R. Civ. P. 166a(i) (emphasis added).
Moreover, a comment to rule 166a(i), which “is intended to inform the
construction and application of the rule,” states, “The motion must be
specific in challenging the evidentiary support for an element of a
claim or defense; paragraph (i) does not authorize conclusory motions
for general no-evidence challenges to an opponent's case.” Tex. R. Civ.
P. 166a, 1997 cmt. (West 2004) (emphasis added). A no-evidence motion
for summary judgment that only generally challenges the sufficiency of
the nonmovant's case and fails to identify the specific elements of the
nonmovant's claim or claims that lack supporting evidence is
fundamentally defective and insufficient to support summary judgment as
a matter of law. See Weaver v. Highlands Ins. Co., 4 S.W.3d 826, 829 n.2
 
(Tex. App.-Houston [1st Dist.] 1999, no pet.); see also Mott v. Red's
Safe and Lock Services, Inc., 249 S.W.3d 90, 98 (Tex. App.-Houston [1st
Dist.] 2007, no pet.) (“Because Rule 166a(i) uses the unconditional term
'must' in expressly directing no-evidence summary judgment movants to
state the elements as to which there is no evidence, we decline to
extend a 'fair notice' exception to the elements requirement of a
no-evidence motion for summary judgment.”); Roventini v. Ocular Scis.,
Inc., 111 S.W.3d 719, 722 (Tex. App.-Houston [1st Dist.] 2003, no pet.)
(noting that the “motion must specify which essential elements of the
opponent's claim or defense lack supporting evidence”).
Appellees devote slightly over three pages of their October 2009
motions for summary judgment to argument supporting a no-evidence
summary judgment. The argument only generally challenges the sufficiency
of appellants' case and does not identify the specific elements of
appellants' claims that lack supporting evidence. See Footnote 9
Accordingly, appellees' no-evidence motions for summary judgment fail to
meet the requirements of rule 166a(i). We conclude the trial court erred
to the extent it granted appellees' no-evidence motions for summary
judgment.
Appellees' Traditional Motions for Summary Judgment
Appellants' remaining claims subject to appellees' motions for
traditional summary judgment are: civil conspiracy, violations of the
DTPA, fraud, conspiracy to defraud, and negligent misrepresentation
against all appellees; breach of fiduciary duties against Cheung and
 
Kirwan; and conspiracy to violate the DTPA and statutory fraud against
PPOC and Cheung.
When a defendant moves for summary judgment, he must state
specific grounds for relief. Tex.R. Civ. P. 166a(c); McConnell, 858
S.W.2d at 341. “The term 'grounds' means the reasons that entitle the
movant to summary judgment, in other words, 'why' the movant should be
granted summary judgment.” Garza v. CTX Mortg. Co., L.L.C., 285
S.W.3d 919, 923 (Tex.App.-Dallas 2009, no pet.). If the grounds for
summary judgment are not clear, the general rule is that the nonmovant
must specially except to preserve error. See Harwell v. State Farm
Mut. Auto. Ins. Co., 896 S.W.2d 170, 175 (Tex.1995) (citing McConnell,
858 S.W.2d at 342). However, the nonmovant need not object if the
grounds for summary judgment are not expressly presented in the motion
itself, rendering the motion insufficient as a matter of law. See
McConnell, 858 S.W.2d at 342. Grounds are sufficiently specific if they
give “fair notice” to the nonmovant. Dear v. City of Irving, 902 S.W.2d
731, 734 (Tex.App.-Austin 1995, writ denied). To dispose of the
plaintiff's case, the defendant's summary judgment motion must identify
each of the plaintiff's claims and address the essential elements of
those claims on which the defendant contends no genuine issue of
material fact exists. See Black v. Victoria Lloyds Ins. Co., 797
S.W.2d 20, 27 (Tex.1990). In determining whether the grounds are
expressly presented, we look only to the motion itself; we do not rely
on briefs or summary judgment evidence. Sci. Spectrum, Inc. v. Martinez,
 
941 S.W.2d 910, 912 (Tex.1997). And “we are not required to 'read
between the lines to infer or glean from the pleadings or proof, any
grounds' for summary judgment.” Davis v. First Indem. of Am. Ins. Co.,
56 S.W.3d 106, 110 (Tex. App.-Amarillo 2001, no pet.) (quoting
McConnell, 858 S.W.2d at 343).
Appellees devote slightly over three pages of their October 2009
motions for summary judgment to argument supporting traditional summary
judgment. Most of that argument relates to issues not before us in this
appeal. However, appellees' motions for summary judgment contain two
paragraphs, both numbered “20,” which do appear to relate to issues
before us. See Footnote 10 The argument presented in the paragraphs
numbered 20 is cursory. We will attempt to determine as to each of
appellants' claims whether grounds for traditional summary judgment were
“expressly presented” in these two paragraphs of appellees' motions and
whether by stating any such grounds, and offering evidence in support of
them, appellees met their burden to disprove an essential element of
each of appellants' claims. See Tex. R. Civ. P. 166a(c); McMahon
Contracting, L.P. v. City of Carrollton, 277 S.W.3d 458, 468 (Tex.
App.-Dallas 2009, pet. denied) (failure to identify which cause of
action addressed by summary judgment points not fatal to motion if court
able to determine from motion grounds “expressly presented”).
Civil Conspiracy
In the first paragraph 20 of their motions for summary judgment,
appellees state, “Plaintiffs contend that the Defendants have conspired
 
against them and defendants, Cheung and Kirwan and [sic] have breached a
fiduciary duty.” Appellees argue that as a matter of law there is no
conspiracy.
The essential elements of a claim of civil conspiracy include:
(1) two or more persons; (2) an object to be accomplished; (3) a meeting
of the minds on the object or course of action; (4) one or more
unlawful, overt acts; and (5) damages as the proximate result. See Times
Herald Printing Co. v. A.H. Belo Corp., 820 S.W.2d 206, 216 (Tex.
App.-Houston [14th Dist.] 1991, no writ). Appellants' pleading alleges
that “defendants” entered into “an agreement or understanding by common
design, to impair Plaintiffs' property rights.” With regard to
appellants' claim of civil conspiracy, appellees' motions for summary
judgment suggest only that the ultimate control of the condominium
complex was within the domain of PPOC. However, neither Huffman, Kirwan,
or Cheung addressed appellants' allegations regarding their alleged
conspiratorial activities, such as “meeting without the presence or
knowledge of the Plaintiffs in an attempt to preclude Plaintiffs from
erecting their desired signage.” PPOC did not address appellants' civil
conspiracy claims, including the claim that Kirwan, Cheung, PPOC, and a
nonparty alleged to own property adjacent to the condominium, presented
a fraudulent document to the City of Plano in a failed attempt to induce
the arrest of Bever Properties' manager and the denial by the City of
Plano of the sign permit sought by Bever Properties. Moreover, in
 
appellants' summary judgment proof in response to the appellees' motions
for summary judgment, the affidavit of Cathy Taylor, President of Bever
Properties and business manager of Taylor, D.D.S., P.A., See Footnote
11 avers that “[w]e have no sign because Defendants JoJo Cheung and
Mary Ellen Kirwan have refused to meet with us, and have actively
conspired with Defendant Huffman to prevent approval of our sign.”
We conclude that a genuine issue of material fact exists with
regard to appellants' claims of civil conspiracy against appellees. We
therefore reverse the trial court's summary judgment in favor of
appellees on appellants' claims of civil conspiracy.
Breach of Fiduciary Duties
Appellants' pleading asserts that Kirwin and Cheung, as officers
and directors of PPOC, owed duties to appellants, including duties
against self-dealing and duties of honesty, fidelity, and loyalty.
Appellants plead that Kirwin and Cheung have breached their fiduciary
duties.
The elements of a breach of fiduciary duty claim are: (1) a
fiduciary relationship between the plaintiff and defendant; (2) the
defendant must have breached his fiduciary duty to the plaintiff; and
(3) the defendant's breach must result in injury to the plaintiff or
benefit to the defendant. Jones v. Blume, 196 S.W.3d 440, 447 (Tex.
App.-Dallas 2006, pet. denied). The TUCA provides that “[e]ach officer
or member of the board [of the unit owners' association] is liable as a
fiduciary of the unit owners for the officer's or member's acts or
omissions.” Tex. Prop. Code Ann. § 82.103(a) (West 2007). See Footnote
 
12 An officer or director of the unit owners' association is not liable
to the association or any unit owner for monetary damages for an act or
omission occurring in the person's capacity as an officer or director
unless the officer or director breached a fiduciary duty to the
association or a unit owner. Tex. Prop. Code Ann. § 82.103(f)(1).
Appellants' pleading alleges numerous instances in which
condominium association officers Kirwan and Cheung acted in disregard of
provisions of the Declaration, including allowing subtenants in
violation of the Declaration, permitting Kirwan's delinquency in payment
of condominium assessments, entering into contractual arrangements with
other entities in contravention of the Declaration, and “self-serving
and illegal actions of Cheung and Kirwan (acting to cover up the
wrongdoings of Huffman).” Kirwan and Cheung failed to address these
factual allegations in their motions for summary judgment, relying
solely on the statement in the first paragraph 20 of their motions that
the appellants knew what their rights and liabilities were pursuant to
the Declaration and understood “that the ultimate control of the complex
was in the hands of the association.” This statement alone does not
satisfy appellees' burden to disprove an essential element of
appellants' cause of action for breach of fiduciary duties.
We conclude the trial court erred in granting summary judgment
in favor of Kirwan and Cheung on appellants' claim of breach of
fiduciary duties. We therefore reverse the trial court's summary
 
judgment in favor of Kirwan and Cheung on appellants' claims of breach
of fiduciary duties.
Fraud and Negligent Misrepresentation
In the second paragraph 20 of their motions for summary
judgment, appellees state, “Plaintiffs contend Defendants have engaged
in fraud . . . [and] negligent misrepresentation . . . by making
representations the Plaintiffs were promised a sign by the Defendants.”
An essential element of appellants' claims of fraud and negligent
misrepresentation is the existence of a representation. To prevail on a
fraud claim, the plaintiff must show “a material misrepresentation,
which was false, and which was either known to be false when made or was
asserted without knowledge of its truth, which was intended to be acted
upon, which was relied upon, and which caused injury.” Formosa Plastics
Corp. USA v. Presidio Eng'rs & Contractors, Inc., 960 S.W.2d 41, 47
(Tex. 1998) (quoting Sears, Roebuck & Co. v. Meadows, 877 S.W.2d 281,
282 (Tex. 1994)). Elements of a negligent misrepresentation claim are:
(1) the representation is made by a defendant in the course of his
business, or in a transaction in which he has a pecuniary interest; (2)
the defendant supplies “false information” for the guidance of others in
their business; (3) the defendant did not exercise reasonable care or
competence in obtaining or communicating the information; and (4) the
plaintiff suffers pecuniary loss by justifiably relying on the
representation. McCamish, Martin, Brown & Loeffler v. F.E. Appling
Interests, 991 S.W.2d 787, 791 (Tex. 1999).
 
On appeal, appellants' arguments relating to fraud and negligent
misrepresentation concern appellants' reliance on Huffman's alleged
misrepresentations. In their brief, the only reference to PPOC, Cheung,
and Kirwan with regard to the claims of fraud and negligent
misrepresentation is a statement that at the same time Huffman was
making representations to appellants regarding signage, Huffman was in
active concert with PPOC, Cheung, and Kirwan to prevent appellants from
installing their intended signage. Appellants' brief contains no
argument regarding alleged representations by PPOC, Cheung, or Kirwan.
Failure to advance an argument, cite authority, make record references
or otherwise brief an issue effects a waiver of that issue on appeal.
See Tex. R. App. P. 38.1(h); Trinity Highway Prods., LLC, 329 S.W.3d at
920.
However, with regard to appellants' claims of fraud and
negligent misrepresentation against Huffman, appellants' summary
judgment proof contains evidence regarding Huffman's alleged
misrepresentations to appellants. Cathy Taylor states in her affidavit,
submitted as summary judgment proof by appellants and appellees, that on
several occasions throughout the condominium construction process, Jerry
Huffman and other representatives of Huffman told her and Jesse Taylor
that the condominium property would not be “restricted by the same
association guidelines” as other Huffman properties, and the sign
appellants decided to install would be limited only by applicable
regulations of the City of Plano. Cathy Taylor states that appellants
 
signed the sales agreement with Huffman for purchase of the condominium
property with the specific understanding that any sign they installed
would be restricted only by the requirement that a sign permit be
obtained from the City of Plano and that there would be no condominium
association restrictions regarding signage. A genuine issue of material
fact exists with regard to appellants' claims of fraud and negligent
misrepresentation against Huffman.
We affirm the trial court's summary judgment in favor of PPOC,
Cheung, and Kirwan on appellants' claims of fraud and negligent
misrepresentation. We reverse the trial court's summary judgment on
appellants' claims of fraud and negligent misrepresentation against
Huffman.
Statutory Fraud
Section 27.01 of the Texas Business and Commerce Code provides a
statutory cause of action for fraud in a real estate transaction. See
Tex. Bus. & Com. Code Ann. § 27.01 (West 2009). Such fraud occurs if:
(1) a person makes a false representation of a past or existing material
fact in a real estate transaction to another person for the purpose of
inducing the making of a contract; and (2) the false representation is
relied on by the person entering into the contract. Id. at §
27.01(a)(1).
With regard to appellants' claims of statutory fraud against
PPOC and Cheung, appellees' summary judgment proof includes the
affidavit of Cathy Taylor and the attached March 2003 Sales Agreement
for purchase of the Bever Properties condominium unit from Huffman.
According to Cathy Taylor's affidavit, it was sometime after Huffman
 
sold the second condominium unit to Cheung in January 2004, that Huffman
provided Cathy Taylor with contact information for the owners of the
other condominium units, Kirwan and Cheung. Thus, appellants did not
communicate with Cheung until well after execution of the Sales
Agreement for the Bever Properties condominium unit, and the summary
judgment proof established that Cheung did not make a false
representation to appellants in conjunction with the purchase of the
Bever Properties condominium unit. Cathy Taylor's affidavit also avers
that Huffman represented that the three condominium unit owners-Bever
Properties, Kirwan, and Cheung-“would develop and form the owners
association if it was needed, not Huffman Properties.” The summary
judgment proof established that PPOC was not “formed” until after
execution of the Sales Agreement for the Bever Properties condominium
unit. Therefore, the summary judgment proof established that PPOC did
not make a representation to appellants in conjunction with the purchase
of the Bever Properties condominium unit.
Appellees PPOC and Cheung demonstrated that no genuine issue of
material fact exists on appellants' claims of statutory fraud against
them, and PPOC and Cheung were entitled to summary judgment on
appellants' claims of statutory fraud as a matter of law. We affirm the
trial court's summary judgment in favor of PPOC and Cheung on
appellants' claim of statutory fraud.
 
DTPA Violations
In their pleading, appellants claim multiple violations of the
DTPA by appellees. Appellants claim appellees violated sections
 
17.46(b)(2), (3), (5), (7), (12), and (24) of the business and commerce
code as a result of representations made or failures to disclose. See
Tex. Bus. & Com. Code Ann. §§ 17.46(b)(2), (3), (5), (7), (12), and (24)
(West 2011). However, on appeal, appellants only contest the summary
judgment granted Huffman on their DTPA claims. Failure to advance an
argument, cite authority, make record references or otherwise brief an
issue effects a waiver of that issue on appeal. See Tex. R. App. P.
38.1(h); Trinity Highway Prods., LLC, 329 S.W.3d at 920. Therefore, we
affirm the trial court's summary judgment in favor of PPOC, Cheung, and
Kirwan on appellants' claims of DTPA violations of sections 17.46(b)(2,
(3), (5), (7), (12), and (24) of the business and commerce code.
With regard to appellants' claim of DTPA violations by Huffman,
appellees' motions for summary judgment assert that appellants could not
have relied on representations regarding prominent signage because
appellants were subject to management authority of the unit owners'
association and the association's actions concerning use and placement
of signage. As discussed above, appellants' summary judgment proof
contains evidence regarding Huffman's alleged misrepresentations to
appellants. By affidavit, Cathy Taylor states that on several occasions
throughout the condominium construction process, Jerry Huffman and other
representatives of Huffman, told her and Jesse Taylor that the
condominium property would not be “restricted by the same association
 
guidelines” as other Huffman properties, the sign appellants decided to
install would be limited only by applicable regulations of the City of
Plano, and that there were no owners' association restrictions regarding
signage. Cathy Taylor further states that appellants signed the sales
agreement for the condominium property with the specific understanding
that any sign they installed would be restricted only by the requirement
of obtaining a sign permit from the City of Plano and that there would
be no condominium association restrictions regarding signage.
We conclude that a genuine issue of material fact exists with
regard to claims of DTPA violations against Huffman based on Huffman's
alleged representations or failures to disclose. Therefore, we reverse
the trial court's summary judgment in favor of Huffman on appellants'
claims of violations of sections 17.46(b)(2), (3), (5), (7), (12), and
(24) of the business and commerce code.
Appellants also plead appellees have engaged in an
unconscionable action or course of action in violation of section
17.50(a)(3) of the business and commerce code. See Tex. Bus. & Com. Code
Ann. § 17.50(a)(3) (West 2011) (a consumer may maintain an action where
any unconscionable action or course of action by any person constitutes
a producing cause of economic or mental anguish damages). On appeal,
appellants assert that appellees' motions for summary judgment failed to
address the “distinct” claim that appellees engaged in an unconscionable
action or course of action. We agree.
 
Appellants alleged both an unconscionable action or course of
action in violation of section 17.50(a)(3) of the business and commerce
code and false, misleading, or deceptive acts or practices in violation
of section 17.46(b) of the business and commerce code. The two claims
are distinct and either will support recovery. See Mays v. Pierce, 203
S.W.3d 564, 571-72 (Tex. App.-Houston [14th Dist.] 2006, pet. denied);
see also Teague v. Bandy, 793 S.W.2d 50, 54 (Tex. App.-Austin 1990, writ
denied) (DTPA permits consumer to maintain an action where any deceptive
trade practice enumerated in section 17.46 is a producing cause of
consumer's actual damages; DTPA also provides that consumer may maintain
an action where any person's unconscionable action or course of action
is a producing cause of consumer's actual damages). With regard to
appellants' DTPA claims, appellees' motions for summary judgment argue
generally that appellants could not have relied on representations
regarding prominent signage, because appellants were subject to
management authority of the unit owners' association and the
association's actions concerning use and placement of signage. However,
section 17.50(a)(3) contains no reliance requirement. See Tex. Bus. &
Com. Code Ann. § 17.50(a)(3); cf. Tex. Bus. & Com. Code Ann. §
17.50(a)(1) (consumer may maintain an action based on use or employment
of false, misleading, or deceptive act or practice enumerated in section
17.46(b) that is relied on by a consumer to the consumer's detriment).
Appellees' motions for summary judgment do not address
 
appellants' claims of violation of section 17.50(a)(3) of the business
and commerce code. See Footnote 13 As a result, we reverse the trial
court's summary judgment in favor of appellees on appellants' claim of
violation of section 17.50(a)(3) of the business and commerce code.
Conspiracy to Defraud and Conspiracy to Violate the DTPA
Appellees' motions for summary judgment did not refer to
appellants' claims against appellees for conspiracy to defraud and the
claims remaining against PPOC and Cheung for conspiracy to violate the
DTPA. The motions did not identify any element of those claims for which
they contended no genuine issue of material fact exists. Consequently,
we conclude that appellees' traditional motions for summary judgment do
not support summary judgment in favor of appellees on appellants' claims
for conspiracy to defraud and in favor of PPOC and Cheung on appellants'
claim for conspiracy to violate the DTPA. See Victoria Lloyds Ins. Co.,
797 S.W.2d at 27. As a result, we reverse the trial court's summary
judgment in favor of appellees on appellants' claims of conspiracy to
defraud and in favor of PPOC and Cheung on appellants' claim of
conspiracy to violate the DTPA.
We sustain in part and overrule in part appellants' first issue.
Appellees' December 2009 Traditional Motions for Partial Summary
Judgment and
Appellants' December 2009 No-Evidence Motion for Summary Judgment,
and February 1, 2010 Order
We next consider appellants' contentions in their second and
third issues that the trial court erred in granting appellees' December
 
2009 traditional motions for summary judgment on their requests for
attorney's fees because none of the grounds relied upon by appellees can
support an award of attorney's fees, and in denying appellants' December
2009 no-evidence motion for summary judgment seeking denial of
appellees' claims for attorney's fees.
In December 2009, PPOC and Cheung filed a traditional motion for
partial summary judgment on PPOC's request for an injunction to enjoin
appellants from violating use and occupancy restrictions of the
Declaration and for attorney's fees. PPOC asserted it was entitled to
attorney's fees under section 82.161 of the TUCA based on its status as
a plaintiff in its original suit seeking an injunction against Bever
Properties that was consolidated into this case. PPOC also asserted
entitlement to attorney's fees under section 38.001(8) of the civil
practice and remedies code because it filed suit seeking an injunction
to enforce a contract-the Declaration. PPOC and Cheung asserted
entitlement to attorney's fees under section 82.161 of the TUCA, because
they were defendants in the suit filed by appellants, and under section
3.11 of the Declaration. Kirwin and Huffman filed joinders of PPOC and
Cheung's motion for partial summary judgment, seeking their own
attorney's fees.
On February 1, 2010, the trial court signed an order on
appellees' motions for partial summary judgment and appellants'
no-evidence motion for summary judgment on appellees' claims for an
injunction and attorney's fees. See Footnote 14 That order denied the
 
motion for partial summary judgment on PPOC's request for an injunction
against Bever Properties; granted summary judgment on appellees' claims
for attorney's fees, with the amounts to be determined; and denied
appellants' motion for summary judgment seeking denial of appellees'
claims for attorney's fees. The order does not state the bases for the
trial court's ruling granting attorney's fees to appellees.
Section 38.001(8) of the Civil Practice and Remedies Code
In their December 2009 motions for partial summary judgment,
appellees PPOC, Kirwan and Huffman claim entitlement to their attorney's
fees for breach of contract under civil practice and remedies code
section 38.001(8). See Tex. Civ. Prac. & Rem. Code Ann. § 38.001(8)
(West 2008) (person may recover reasonable attorney's fees from
individual or corporation if claim is for an oral or written contract).
See Footnote 15 However, no appellee asserted a cause of action
against appellants for breach of contract. Moreover, Huffman is not a
condominium unit owner and not a party to the Declaration; accordingly
the Declaration does not constitute a basis for Huffman asserting a
breach of contract claim. See Allan v. Nersesova, 307 S.W.3d 564, 570
(Tex. App.-Dallas 2010, no pet.) (condominium unit owner accepts the
terms, conditions, and restrictions in the condominium declaration, and
the restrictions in the declaration form a contract between the
parties); see also Petras v. Criswell, 248 S.W.3d 471, 477 (Tex.
App.-Dallas 2008, no pet.) (first necessary element for successful
 
breach of contract claim is a valid, enforceable contract). Therefore,
the trial court erred to the extent it granted summary judgment awarding
appellees their attorney's fees based on section 38.001(8) of the civil
practice and remedies code.
Paragraph 3.11 of the Declaration
In PPOC and Cheung's December 2009 motion for partial summary
judgment, as joined by Kirwan and Huffman, they contend paragraph 3.11
of the Declaration entitles them to recover attorney's fees. In their
motions, appellants state their summary judgment evidence consists of
“Exhibit A (The Condominium Declaration For Plano Parkway Office
Condominiums)” to PPOC and Cheung's prior October 2009 motions for
summary judgment. However, Exhibit A to the October 2009 motions for
summary judgment is not the Declaration for the PPOC. See Footnote 16
Indeed, the only Declaration contained in the record that was filed in
advance of the appellees' motions for partial summary judgment is the
Declaration attached to appellants' original and first amended
petitions.
Paragraph 3.11 of the Declaration as attached to plaintiffs'
original and first amended petitions contains no provision for recovery
of attorney's fees. That paragraph provides: Failure to comply with any
of the [provisions of the Declaration, bylaws, and the decisions and
resolutions of the Association] shall be grounds for an action to
recover sums due for damages or for injunctive relief, or both,
maintainable by the Association on behalf of the Owners or, in proper
case (sic), by an aggrieved Owner against another Owner or against the
 
Association.
The record here does not provide support for appellees' recovery of
their attorney's fees pursuant to paragraph 3.11 of the Declaration.
Therefore, the trial court erred to the extent it granted summary
judgment awarding appellees their attorney's fees based on paragraph
3.11 of the Declaration.
Section 82.161of the Texas Uniform Condominium Act
The only remaining ground for appellees' December 2009 motions
for partial summary judgment on their attorney's fees is section 82.161
of the TUCA. Appellees moved for summary judgment as “prevailing
parties” under section 82.161 of the TUCA. Section 82.161(b) provides
that “[t]he prevailing party in an action to enforce the declaration,
bylaws, or rules is entitled to reasonable attorney's fees and costs of
litigation from the nonprevailing party.” Tex. Prop. Code Ann. §
82.161(b) (West 2007). PPOC asserted it was entitled to summary judgment
as a matter of law on its claim for attorney's fees as a prevailing
party in its original suit seeking an injunction against Bever
Properties. PPOC and appellees Cheung, Kirwan, and Huffman asserted they
were entitled to summary judgment as a matter of law on their claims for
attorney's fees under section 82.161 because they were prevailing
parties as defendants in the suit filed against them by appellants.
PPOC was not a “prevailing party” with regard to its application
for an injunction; PPOC's application for injunction was denied by the
trial court in its February 1, 2010 order and PPOC has not appealed that
 
trial court determination. In light of our reversal of the summary
judgments in favor of appellees on a number of appellants' claims, we
conclude the issue of appellees' attorney's fees must be reversed and
remanded to the trial court for reconsideration. See State Farm Lloyds
v. C.M.W., 53 S.W.3d 877, 894-95 (Tex. App.-Dallas 2001, pet. denied)
(reversing and remanding attorney's fees awarded under Declaratory
Judgment Act “because the record does not reflect the trial court's
reasons for its award of fee to [the prevailing party], there is no
evidence to indicate whether the trial court's award of fees would also
be equitable and just in light of our opinion in this case”).
We reverse the trial court's summary judgment awarding
attorney's fees to PPOC, Cheung, Kirwan, and Huffman. We sustain
appellants' second issue.
Appellants contend in their third issue that the trial court
erred in denying appellants' motion for summary judgment which sought
denial of appellees' claims for their attorney's fees. Because we have
sustained appellants' second issue, we need not address appellants'
third issue. See Tex. R. App. P. 47.1.
Conclusion
We affirm the trial court's judgment on appellants' claims of
fraud, negligent misrepresentation, and violations of section 17.46(b)
of the business and commerce code against appellees PPOC, Kirwan, and
Cheung. We also affirm the trial court's judgment on appellants' claim
of statutory fraud against PPOC and Cheung; appellants' claim for
declaratory relief; and appellants' claim for a business accounting. In
 
all other respects, the trial court's judgment is reversed, and the case
is remanded to the trial court for further proceedings consistent with
this opinion.
 
ROBERT M.
FILLMORE
JUSTICE
100323F.P05
-------------------
Footnote 1
Under the Texas Uniform Condominium Act (TUCA), “condominium”
means “a form of real property with portions of the real property
designated for separate ownership or occupancy, and the remainder of the
real property designated for common ownership or occupancy solely by the
owners of those portions.” Tex. Prop. Code Ann. § 82.003(a)(8) (West
2007).
-------------------
Footnote 2
Under the TUCA, “declaration” means “a recorded instrument,
however denominated, that creates a condominium, and any recorded
amendment to that instrument.” Tex. Prop. Code Ann. § 82.003(a)(11). The
declaration for a condominium unit must contain any restrictions on use,
occupancy, or alienation of the units. Tex. Prop. Code Ann. § 82.055(9)
(West 2007).
-------------------
Footnote 3
In a prior appeal, Bever Properties and Taylor, D.D.S., P.A.
sought a declaration that PPOC is not cognizable as a condominium
association under Texas law and cannot assert management authority over
Bever Properties as a condominium unit owner. Plano Parkway Office
Condos. v. Bever Properties, LLC, 246 S.W.3d 188, 191 (Tex. App.-Dallas
2007, pet. denied). We reversed the trial court's summary judgment
granted in favor of Bever Properties and Taylor, D.D.S., P.A. and
remanded the case to the trial court for further proceedings. Id. at
196-97.
-------------------
Footnote 4
 
At oral argument, appellants conceded that there was no
discussion in their brief regarding appellants' claim for an accounting
and acknowledged that any claim for an accounting had been waived.
-------------------
Footnote 5
Appellants did not assert a claim against Huffman for breach of
fiduciary duty.
-------------------
Footnote 6
Although Kirwan and Huffman did not move for summary judgment
on appellants' claim for a business accounting, as noted above,
appellants' claim for a business accounting was waived on appeal.
-------------------
Footnote 7
Although there are causes of action which were not disposed of
by interlocutory summary judgment, the trial court's final judgment
unequivocally expressed that the order was final and appealable. See
Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001) (if final
disposition of case is unequivocally expressed in the words of order
itself, then order is final and appealable, even though record does not
provide an adequate basis for rendition of judgment); see also In re
Guardianship of Miller III, 299 S.W.3d 179, 184 (Tex. App.-Dallas 2009,
no pet.); Pinnacle Data Servs., Inc. v. Gillen, 104 S.W.3d 188, 199
(Tex. App.-Texarkana 2003, no pet.) (“Where, as here, a final summary
judgment has disposed of a case and included causes of action not
addressed in the underlying motion, that judgment is erroneous and must
be affirmed as to the causes of action properly adjudged and remanded as
to those causes of action not addressed in the underlying motion.”).
-------------------
Footnote 8
 
Under the TUCA, “common elements” means “all portions of a
condominium other than the units and includes both general and limited
common elements.” Tex. Prop. Code Ann. § 82.003(a)(5).
-------------------
Footnote 9
In his brief, Huffman acknowledged that his no-evidence motion
for summary judgment “did not expressly identify” the essential elements
of appellants' causes of action for which Huffman asserted there was
no-evidence. At oral argument, counsel for PPOC, Cheung, and Kirwan
stated that their no-evidence motions for summary judgment were “catch
alls” and their traditional motions for summary judgment were the cruxes
of their arguments.
-------------------
Footnote 10
The two paragraphs numbered “20" of appellees' motions for
summary judgment state the following:
20. Plaintiffs contend that the Defendants have conspired against them
and defendants, Cheung and Kirwan and (sic) have breached a fiduciary
duty. A civil conspiracy is a combination by two or more persons to
accomplish an unlawful purpose or to accomplish a lawful purpose by
unlawful means. . . . In fact, while the Plaintiffs may not like their
voting position, as a matter of law, there is no conspiracy. To this,
the appeals (sic) made it clear that the Condominium Association can
“assert management authority over the unit owners.” . . . Plaintiffs
entered into the initial contract knowing what their rights and
liabilities would be, and understanding that the ultimate control of the
complex was in the hands of an association which it could - or possible
 
(sic) could not - control. Needless to say, had one of the other voting
members been of a mind to join the Plaintiffs, this litigation may have
been put forth by a different “odd-man-out;” however not being able to
conjure a majority toward your stance does not make for either an
actionable offence, conspiracy or breach of fiduciary duty.
20. (sic) Plaintiffs contend Defendants have engaged in fraud,
statutory fraud, negligent misrepresentation and [DTPA] violations by
making representations the Plaintiffs were promised a sign by the
Defendants. Again, Plaintiffs agreed to the Declaration when they
purchased their condominium unit. They now, and only after agreeing to
the Declaration, seek to nullify the same. Plaintiffs entered into the
initial contract knowing what their rights and liabilities would be, and
understanding that the ultimate control of the complex was in the hands
of an association which it could - or possible (sic) could not -
control. To this, the appeals (sic) made it clear that the condominium
Association can “assert management authority over the unit owners.” . .
. The appeals court made it clear the Owners Association is valid and
therefore, the Owners Association can assert management authority over
unit owners by excepting, rejecting, modifying or taking any action
concerning the placement or use of signage by Owners Association
members. It is impossible for the Plaintiffs to reasonably rely on an
alleged representation that is unenforceable as a matter of law.
(Citations omitted).
-------------------
Footnote 11
 
Appellants and appellees submitted and relied on the September
3, 2009 affidavit of Cathy Taylor as summary judgment proof.
-------------------
Footnote 12
Under the TUCA, “board” means the board of directors or the
body, regardless of the name, designated to act on behalf of unit
owners' association. Tex. Prop. Code Ann. § 82.003(a)(4).
-------------------
Footnote 13
At oral argument, Huffman's counsel acknowledged he did not
dispute that Huffman's motion for traditional summary judgment did not
address appellants' claim of unconscionability under the DTPA.
-------------------
Footnote 14
The trial court's February 1, 2010 order incorrectly identifies
appellees' motions for partial summary judgments as no-evidence motions.
Appellees' motions for partial summary judgments were traditional
motions for summary judgment.
-------------------
Footnote 15
Cheung did not move for recovery of his attorney's fees under
section 38.001(8).
-------------------
Footnote 16
Exhibit A to the October 2009 motions for summary judgment is a
copy of PPOC's Bylaws.
-------------------