Joseph and Jamie SCHWARTZOTT, Appellants, v. MARAVILLA OWNERS ASSOCIATION, INC., Appellee.
No. 14-10-01151-CV
Court of Appeals of Texas, Houston (14th Dist.).
Jan. 5, 2012.
Rehearing Overruled Feb. 7, 2012.
15
Judge, we believe the substitution is improper at this time because we don‘t see how the Court could make any rulings during arguments on evidence within or outside the record and how far counsel might stray from that evidence, making the Court flying blind, so to speak.
Judge Dowd overruled the objection and the request for continuance.
A trial court‘s ruling on a motion for continuance is reviewed under an abuse of discretion standard. Gallo v. State, 239 S.W.3d 757, 764 (Tex. Crim. App. 2007). For Clay to establish an abuse of discretion, he must show that the trial court erred by denying his motion and that he was harmed by the denial of a сontinuance. Gonzales v. State, 304 S.W.3d 838, 843 (Tex. Crim. App. 2010).
Here, Clay cites to a few examples in the State‘s closing arguments where, he claims, the State mischaracterized the facts and the questions asked during the trial.9 However, Clay failed to cite any authority in support of his argument that the trial court erred by denying his motion, and we are aware of none. See id. We find the trial court was within its discretion to deny the motion. Aсcordingly, we overrule this point of error.
We affirm the trial court‘s judgment.
raised for the first time on appeal.
KEM THOMPSON FROST, Justice.
In this case, condominium owners challenge a summary judgment in favor of a condominium owners’ association in a suit to collect allegedly past-due assessments as well as attorney‘s fees and costs. We conclude that the trial court erred in awarding the association certain fees and costs. Accordingly, we modify the trial court‘s judgment to delete these fees and costs and affirm the judgment as modified.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellants/defendants Joseph and Jamie Schwartzott (the “Schwartzotts“) own a unit in the Maravilla Condominiums in Galveston, Texas. Appellee/plaintiff Maravilla Owners Association, Inc. (the “Association“) is the governing body of the Maravilla Condominiums (the “Condominiums“). The Association filed suit against the Schwartzotts in county court to recover monthly assessments and late fees the Association claimed were owing in connection with the Schwartzotts’ ownership of a unit in the Condominiums. The Association also sought to recover attorney‘s fees, costs of collection, prejudgment interest, and postjudgment intеrest.
Pursuant to
The Association moved for a traditional summary judgment, asserting that there was no genuine issue of material fact regarding each element of their claim and that the Association was entitled to judgment as a matter of law. The Association attached to its summary-judgment motion
The trial court granted summary judgment, awarding $5,930 as the principal amount due, prejudgment and postjudgment interest, $4,609.25 for attorney‘s fees and costs of collection in the past, and “any additional attorney‘s fees or costs of collection incurred after August 11, 2010 until the date the judgment is paid.”
II. ISSUES PRESENTED
In three appellate issues, the Schwartzotts assert that (1) the trial cоurt erred in granting summary judgment based upon the sworn account procedure under
III. STANDARD OF REVIEW
In a traditional motion for summary judgment, if the movant‘s motion and summary-judgment evidence facially establish its right to judgment as a matter of law, the burden shifts to the nonmovant tо raise a genuine, material fact issue sufficient to defeat summary judgment. M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000). In our de novo review of a trial court‘s summary judgment, we consider all the evidence in the light most favorable to the nonmovants, crediting evidence favorable to the nonmovants if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006). The evidence raises a genuine issue of fact if reasonable and fair-minded jurors could differ in their conclusions in light of all of the summary-judgment evidence. Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007). When, as in this case, the order granting summary judgment does not specify the grounds upon which the trial court relied, we must affirm the summary judgment if any of the independent summary-judgment grounds is meritorious. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000).
IV. ANALYSIS
A. Did the trial court err because the sworn-account procedure under Texas Rule of Civil Procedure 185 was not available to the Association in this case?
In their first issue, the Schwartzotts assert that the trial court erred in granting summary judgment because the only basis for the Association‘s recovery was its suit on a sworn account under
1. Texas Rule of Civil Procedure 185
2. The Association‘s Ground for Summary Judgment
The Schwartzotts argue that the Association only sought summary judgment based upon “a sworn account claim.” The Schwartzotts emphasize one sentence from the summary-judgment motion in which the Association states that “[The Association‘s] cause of action is for funds owed on a sworn account: Schwartzotts’ account for assessment of common area expenses.” This sentence does include the words “sworn account.” But, in the motion, the Association also asserted that its “motion embraces the entire claim stated in [the Association‘s] pleadings” and that “there is no genuine issue as to any material fact regarding each and every element of [the Association‘s] claim, and [the Association] is entitled to a judgment as a matter of law.” In its motion, the Association did not specify the claim or claims asserted in its petition. But the Association asserted as a ground that the summary-judgment evidence conclusively proved its entitlement to judgment on the claim asserted in its petition. This raises the issue of what claim or claims the Association asserted in its petition.
3. The Association‘s Petition
Because the trial court sustained no special exceptions against this petition, this court must construe that pleading liberally in the Association‘s favor to inсlude all claims that reasonably may be inferred from the language used therein. See Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 897 (Tex. 2000). Under this liberal construction, we conclude that a claim for account stated reasonably may be inferred from the language in the Association‘s petition. A party is entitled to relief under a claim for account stated when (1) transactions between the parties give rise to indebtednеss of one to the other; (2) an agreement, express or implied, between the parties fixes an amount due; and (3) the one to be charged makes a promise, express or implied, to pay the indebtedness. See Busch v. Hudson & Keyse, L.L.C., 312 S.W.3d 294, 299 (Tex. App.—Houston [14th Dist.] 2010, no pet.); Butler v. Hudson & Keyse, L.L.C., No. 14-07-00534-CV, 2009 WL 402329, at *2 (Tex. App.—Houston [14th Dist.] Feb. 19, 2009, no pet.) (mem. op.). Such a claim may be asserted and successfully prosecuted without satisfying thе prerequisites for the
The Schwartzotts argue that the Association‘s claim does not fall within the scope of
Brian Pascal Cweren, Jonathan Scott Stoger, Houston, for appellants.
Amy Brenda Archambault, Berry D. Bowen, Houston, Cris A. Rasco, Tеxas City, for appellee.
Panel consists of Justices FROST, JAMISON, and McCALLY.
Notes
4. Conclusive Proof of the Association‘s Claim
The Schwartzotts have not argued that the summary-judgment evidence fails to conclusively prove an account-stated claim оn the Association‘s behalf. Even if the Schwartzotts had asserted this argument, we would conclude that the summary-judgment evidence conclusively proved (1) transactions between the Association and the Schwartzotts giving rise to the indebtedness of the Schwartzotts to the Association, (2) an agreement, express or implied, fixed the amount that the Schwartzotts owe the Association, and (3) a рromise, express or implied, by the Schwartzotts to pay the indebtedness. Without addressing the Schwartzotts’ second and third issues, in which they challenge some of the attorney‘s fees and costs awarded by the trial court, we conclude that the Association conclusively proved these three elements of an account-stated claim. See Busch, 312 S.W.3d at 299-300 (holding evidence was legally sufficient to support account-stated claim in credit-card collection suit); Butler, 2009 WL 402329, at *2-4 (holding summary judgment was properly granted as to account-stated claim in credit-card collection suit).
The summary-judgment evidence included a certified copy of the Declaration, which requires owners like the Schwartzotts to pay assessments levied by the Board of Directors of the Associаtion. Under their first issue, the Schwartzotts complain that the summary-judgment evidence did not contain specific evidence that the assessments in question were levied by the Association‘s Board of Directors. Comeaux-Bach testified as records custodian and accounts receivable manager for the Association that the Schwartzotts owned a unit in the Condominiums and that the Schwartzotts owed the Association $5,930 for unpaid assessments pursuant to the governing documents of the Condominiums. Comeaux-Bach testified that the Association had made repeated demands upon the Schwartzotts to pay the account and that the Schwartzotts had failed and refused to pay the amounts owing on this account. She also stated that the Association had allowed all just and lawful offsets and credits and that the amounts charged were due, owing, just, and correct. Comeaux-Bach stated that the facts contained in the attached statement of the account were within her personal knowledge and were just, true, and correct. Though Comeaux-Bach could have testified more specifically that the Association‘s Board of Direсtors levied the assessments, her testimony and the Declaration conclusively prove a promise, express or implied, by the Schwartzotts to pay the indebtedness.2 See Butler, 2009 WL 402329, at *2-4 (holding summary-judgment evidence that credit-card holder accepted and used credit card for purchases conclusively
B. Did the trial court err in awarding certain fees and unspecified future costs and fees?
In their second issue, the Schwartzotts challenge the trial court‘s attorney‘s-fees award to the extent it was based upon (1) a “collection fee” of $593 calculated based upon ten percent of the рrincipal amount owed by the Schwartzotts, and (2) $682.50 in attorney‘s fees incurred in defending a lawsuit filed by the Schwartzotts against the Association in a different court. In their third issue, the Schwartzotts assert the trial court erred by awarding the Association an unspecified amount of attorney‘s fees and collection costs incurred after the Association filed its summary-judgment motion and before payment of the judgment.
The billing statement reflects that $682.50 of the attorney‘s fees that the Association‘s counsel testified were reasonable and necessary were incurred for the review of a separate lawsuit by the Schwartzotts against the Association and the preparation of an answer to the Schwartzotts’ petition in this lawsuit. The summary-judgment evidence does not show how these attorney‘s fees were reasonable fees for the collection of the assessments owed by the Schwartzotts to the Association. Accordingly, we conclude that the trial court erred in awarding fees based upon this amount, and we sustain the second issue to this extent.3
In testifying that the Association‘s attorney‘s fees were reasonable and necessary, the Associatiоn‘s attorney relied upon a statement of the hours worked multiplied by a billable rate for most of the fees, but $593 of the attorney‘s fees were based upon a flat fee of ten percent of the principal amount owed. On appeal, the Schwartzotts complain that this ten-percent flat fee is not mentioned in the Declaration and that the Association unilatеrally chose to impose this fee. The Schwartzotts assert that the trial court erred in awarding reasonable fees based upon expert testimony regarding reasonable fees that includes both a flat fee and a component based upon hourly billing rates.
In Arthur Andersen & Company v. Perry Equipment Corporation, 945 S.W.2d 812, 819 (Tex. 1997), the Supreme Court of Texas held that, to recover attorney‘s fees under the Texas Deceptive Trade Practices Act, the plaintiff must prove that the amount of fees is both reasonably incurred and necessary to the prosecution of the case at bar, and must ask the factfinder to award the fees in a specific dollar amount, not as a percentage of the judgment. See id. The Schwartzotts have not cited any cases holding that a party cannot recover a requested dollar amount of attorney‘s fees because the party‘s expert opined that this amount is reasonable and necessary based upon a flat fee combined with a billable hours calculation. We conclude that the trial court did not err in awarding reasonable fees based upon ex-
In their third issue, the Schwartzotts challenge the trial court‘s award of “any additional attorney‘s fees or costs of collection incurred after August 11, 2010 until the date the judgment is paid.” First, the trial court did not require that the additional fees be reasonable, a requirement under the Declaration and any potentially applicable statute. Second, even if attorney‘s fees will accrue after filing of the motion for summary judgment or after judgment, Texas law requires proof of the amount of any such reasonable fees before they can be recovered. See Varner v. Cardenas, 218 S.W.3d 68, 69-70 (Tex. 2007) (per curiam). The Association provided no evidence of the amount of any reasonable fees that might be incurred in the future, and the trial court rendered a blanket award of all fees incurred, even if unreasonable. The trial court erred in awarding future fees and costs. Accordingly, we sustain the Schwartzotts’ third issue.
V. CONCLUSION
Presuming that the
As modified, the trial court‘s judgment is affirmed.
In the Interest of E.C.R.
No. 01-11-00791-CV.
Court of Appeals of Texas, Houston (1st Dist.).
March 15, 2012.
Rehearing and Rehearing En Banc Overruled Aug. 2, 2012.
Opinion Dissenting from Denial of En Banc Reconsideration Aug. 2, 2012.