NORTHWEST PARK HOMEOWNERS ASSOCIATION, INC., Appellant, v. Warner M. BRUNDRETT, Appellee.
NO. 07-97-0296-CV
Court of Appeals of Texas, Amarillo.
May 21, 1998.
Rehearing Overruled June 25, 1998. Rehearing Overruled July 27, 1998.
A defect in an indictment or information, whether it be of form or substance, is considered waived if it is not objected to prior to the commencement of trial.
The information in the instant case specifically charged “Jesse Castro” with the offense of operating a motor vehicle while intoxicated. As such, it satisfied the two basic constitutional requirements set out in Duron and Cook for a charging instrument necessary to vest the court with jurisdiction. Any other complaints regarding the indictmеnt, whether of form or substance, needed to be leveled before trial commenced.
We need not specify whether defects in the complaint and the information raised by appellant are substantive or formal; we merely note that they are not such as would deprive the trial court of jurisdiction to render judgment upon their presentment. We hold, therefore, that appеllant has waived each of his complaints. Points of error one and two are overruled.
The judgment of the trial court is affirmed.
Mendelsohn & Jackson, PC, (Ricky J. Poole and Rosemary B. Jackson), San Antonio, for appellant.
Michael A. Chovanec, John Michael Doyle, San Antonio, for appellee.
Before BOYD, C.J., and DODSON and REAVIS, JJ.
Northwest Park Homeowners Association, Inc. (Northwest) appeals from a judgment, upon a non-jury trial, that Northwest take nothing on its action against Warner M. Brundrett (Brundrett) to recover maintenance assessments pursuant to a Declaration of Covenants, Conditions and Restrictions (Declaration) for Northwest. By six points of error, Northwest contends the trial court erred in rendering judgment that it take nothing. Concluding that no error is presented, we affirm.
On May 25, 1984, Homecraft Assets Corporation executed an instrument entitled Declarаtion of Covenants, Conditions and Restrictions for Northwest, which was filed of record on July 24, 1984, covering the subdivision known as Northwest Park. By deed effective September 16, 1991, Brundrett purchased Lot 17, Block 4, in Northwest Park. One of the provisions of the deed recited that the conveyance was subject to “all easements, covenants, restrictions, reservations, conditions and rights appearing of rec-
On September 20, 1994, Northwest filed its original petition seeking to recover assessments for 1991 through 1994, totaling $240.60 and seeking judicial foreclosure of lien on Brundrett‘s property. Thereaftеr, on March 29, 1996, Northwest filed its first amended original petition and application to foreclose, its live pleading, seeking judgment for assessments for the years 1991 through 1996, plus late fees, and costs and attorney‘s fees. By its petition, Northwest expressly plead that it was the property owners’ association under the Declaration which had been filed, and premised its standing and basis for relief on thе Declaration. In addition to alleging that Brundrett was a lot owner and that he had failed to pay the assessments, Northwest‘s pleadings were couched in the form of an action on sworn account under Rule 185 of the Texas Rules of Civil Procedure. Upon trial, after denying Northwest‘s motion to strike Brundrett‘s answer because it was not verified, the trial court rendered judgment that Northwest take nothing. In respоnse to a request for findings of facts and conclusions of law, the trial court made fifteen findings of facts and twelve conclusions of law.
By its first point of error, Northwest contends the trial court erred in denying its motion to strike Brundrett‘s answer and in failing to enter judgment on its pleadings because Brundrett‘s failure to verify his denial of the sworn account precluded denial of the receipt of the indicated sеrvices and the accuracy of the stated charges. By its second point of error, Northwest contends Brundrett should have been precluded at trial from refuting the fees and assessments alleged in the petition because Brundrett failed to properly deny the charges outlined in the sworn account. Because points one and two present a common question of law, we will cоnsider them, together.
Because
- open account or
- other claim for goods, wares and merchandise, including any claim for a liquidated money demand based upon written contract or founded on business dealings between the parties, or
- is for personal service rendered, or labor done or labor or materials furnished, on which a systematic record has been kept....
(Emphasis added). Northwest‘s cause of action is based upon the Declaration filed in the deed records and referenced in its pleadings. Although the Declaration provides the underlying authority for Northwest to set assessments, the Declaration does not prescribe a specific dollar amount.1 Instead, as relevant here, the Declaration provides that any decision to set annual assessments, as well as the amount thereof, is to be determined by the board of directors of Northwest. The Declaration requires that (1) written notice of any meeting called for the purpose of setting assessments must be given to the members not less than 30 days before any meeting, (2) any annual assessments be made at least 30 days in advance of each annual assessment period, and (3) written notice of the annual assessment be mailed to every lot owner.
Clearly, Northwest‘s claim is not one on оpen account, or a claim for goods, wares and merchandise, or a claim for labor or materials furnished. Although Northwest de-
Prior cases are helpful in our analysis. In Murphy v. Cintas Corp., 923 S.W.2d 663, 665 (Tex.App.-Tyler 1996, writ denied), the court held that a lawsuit based upon a written lease agreement was not a valid claim on sworn account and therefore,
Without question, Brundrett held title to his lot subject to the Declaration, which we will assume for these purposes constitutes a written contract (a question which we do not decide) and Brundrett was not a stranger to the contract. However, the Declaration filed in 1984 did not establish a specific amount for annual assessments which Northwest seeks to recover. To the contrary, the Declaration only authorizes the creation of Northwest with authority to set and impose assessments, from time to time, subject to the restrictions and procedures established by the Declaration. In Achimon v. J.I. Case Credit Corp., 715 S.W.2d 73 (Tex.App.-Dallas 1986, writ ref‘d n.r.e.), even though the creditor sought to recover the balance owing on a retail installment contract which created a debt, the court held that
By its remaining points of error, Northwest contends that (3) there was no evidence, or insufficient evidence, to support the trial court‘s finding that Northwest was without authority to charge annual assessments and late fees pursuant to the Declaration, (4) as a matter of law, Northwest had the authority to charge annual assessments and late fees, (5) there was no evidence, or insufficient evidence, to support the trial court finding that Brundrett did not have notice of Northwest‘s right to assess maintenance fees, and (6) the triаl court erred in failing to award Northwest attorney‘s fees. We will consider these points together because, as below explained, our review of these points is not determinative of this appeal.
Article IV of the Declaration containing nine sections covering six pages includes provisions for annual maintenance and special assessments. In summary, the provisions provide that (1) assessments shall be made and collected as provided by subsequent sections; (2) the board may fix annual assessments; (3) the Association may levy special assessments for capital improvements; (4) written notice of any meeting to fix/levy annual or special assessments must be given to the members not less than 30 days before the meeting; (5) lots owned by residents are subject to annual assеssments determined by the board of directors, in accordance with prior sections; and (6) the annual assessment shall be fixed by the board of directors 30 days in advance of each period and written
After judgment was signed, pursuant to Northwest‘s request, the trial court entered 15 findings of fаcts and made 12 conclusions of law.2 Northwest did not request that the trial court make additional or amended findings of facts and conclusions of law as allowed by
8. That no special assessments were ever imposed against Warner Brundrett and the lot he owns by the Association for the years 1991 through 1996.
10. That the amount of annual assessments to be imposed upon lot owners in Northwest Park was never аdopted by a vote of the membership of the Association for the years 1991 though 1996.
11. That the amount of annual assessments to be imposed upon lot owners in Northwest Park was never adopted by a vote of the board of directors of the Association for the years 1991 through 1996.
12. That a due date for payment of annual assessments was never imposed by either a vote of the membership or the board of directors of the Association for the years 1991 through 1996.
13. That late fees were never imposed by either a vote of the membership or the board of directors of the Association for the years 1991 through 1996.
Also, by finding 7, the trial court found that Northwest did not comply with the Declaration regarding the levy of annual or special assessments, and by finding 14, the trial court found that Northwest never charged Brundrett annual or special assessments in accordance with the Declaration.
Although Northwest subtly attacks fact finding 15, that Brundrett did not have actual notice of Northwest‘s rights to levy maintenance assessments in its argument, Northwest does not, by point of error or argument, contend that there was no evidence, or insufficient evidence, to support trial court findings 10, 11, 12, 13, 14, or 7. On appeal from a bench trial, an attack on the sufficiency of the evidence should be directed at specific findings of facts, rather than at the judgment as a whole. Levine v. Maverick Cty. Water Control, 884 S.W.2d 790, 796 (Tex.App.-San Antonio 1994, writ denied). Although findings of facts are reviewable for legal and factual sufficiency of the evidence to support them, unless the trial court‘s findings of facts are challenged by a point of error on appeаl, they are binding upon the appellate court. Whitehead v. University of Texas, 854 S.W.2d 175, 178 (Tex.App.-San Antonio 1993, no writ).
In his brief, Brundrett concedes the validity of the Declaration, but, as presented in his counterpoints seven and eight, contends that Northwest failed to obtain fact findings necessary to support the setting and charging of the assessments and late charges. Because we must accept the unchallenged fact findings, and because they support the judgment that Northwest take nothing, our consideration of the merits of Northwest‘s remaining points is not necessary. Accordingly, based solely upon the record in this appeal and without expressing any opinion as to the legal effect of the Declaration, or the enforceability of assessments by Northwest in other instances, we affirm the judgment of the trial court.
ON MOTION FOR REHEARING
REAVIS, Justice.
Appellee Warnеr M. Brundrett filed a motion for rehearing contending that this Court erred by failing to address every issue raised and necessary to the final disposition of this appeal, as required by
In his motion for rehearing, Brundrett raises two issues alleging error. By his first issue, he asserts this Court erred in failing to dispose of the cross points raised in his cross appeal. By his second issue, Brundrett contends this Court erroneously failed to reverse that portion of the judgment dismissing his counterclaim and failing to remand the counterclaim to the trial court for further proceedings. We dо not agree.
Proceeding pro se, notwithstanding article 1396-7.01 of the
Brundrett‘s two cross points assert error regarding the April 8, 1996 order dismissing his original counterclaim. However, the cross points do not present any error regarding Brundrett‘s amended counterclaim which was filed subsequent to the April 8, 1996 order. Although Brundrett‘s brief makes reference to the record where the error complained of is to be found, that reference is to the April 8, 1996 order. The brief does not make reference to any order or ruling of the trial court regarding his amended counterclaim as required by
In order to complain on appeal of part of a judgment by cross point, Brundrett was required to except to the judgment, file a motion for new trial, or in some other appropriate manner indicate to the trial court any dissatisfаction he had with the judgment as rendered. Hart v. Berko, Inc., 881 S.W.2d 502, 512 (Tex.App.-El Paso 1994, writ denied). The judgment signed on March 27, 1997, makes reference to the order of April 8, 1996, but does not contain a ruling regarding the amended counterclaim, which was filed after April 8, 1996. Further, Brundrett‘s Notice of Limitation of Appeal and his Amended Notice of Limitation of Appeal address only the April 8, 1996 order dismissing his original counterclaim but do not give notice of limitation of aрpeal regarding any ruling by the trial court on his amended counterclaim as required by
Moreover, because an amended pleading supersedes the original pleading, Jauregui v. Jones, 695 S.W.2d 258, 261 (Tex.App.-San Antonio 1985, writ ref‘d n.r.e.), when Brundrett filed his amended counterclaim he abandoned his original counterclaim. See also Gage v. Langford, 615 S.W.2d 934, 940 (Tex.Civ.App.-Eastland 1981, writ ref‘d n.r.e.). Also, when Brundrett filed his amended counterclaim after the trial court denied his original counterclaim by the April 8, 1996 order, he thereby waived any error in the trial court‘s ruling as to his former pleading. Dodson v. Citizens State Bank of Dalhart, 701 S.W.2d 89, 95 (Tex.App.-Amarillo 1986, writ ref‘d n.r.e.); Town of Port Acres v. City of Port Arthur, 340 S.W.2d 325 (Tex.Civ.App.-Beaumont 1960, writ ref‘d n.r.e.). Because both cross points raised by Brundrett present nothing for review, they are overruled. Accordingly, Brundrett‘s First Motion for Rehearing is overruled.