Opinion
01-21-00010-CV
12-20-2022
ODDIS DUNN, Appellant v. PARK HARBOR IMPROVEMENT ASSN INC AND ITS COMMERCIAL MEMBERS, Appellee
On Appeal from the 234th District Court Harris County, Texas Trial Court Case No. 2020-06897.
Panel consists of Chief Justice Radack and Justices Landau and Hightower.
MEMORANDUM OPINION
Richard Hightower Justice
Appellant Oddis Dunn, together with his wife, Mildred Dunn, sued appellees Park Harbor Improvement Association, Inc. and its commercial members (the Association) for wrongful foreclosure as part of on-going litigation between Mildred and the Association. The Association moved for summary judgment on the grounds that Oddis was not an owner of the property in question at the time of the foreclosure and Mildred was collaterally estopped from challenging both the foreclosure and the Association's authority to assess and collect fees as the homeowners' association in the neighborhood where the foreclosed property was located. Mildred nonsuited her claims, and the trial court granted final summary judgment based on the Association's motion.
Oddis now appeals, asserting that (1) the trial court erred in granting summary judgment because there was a material fact issue as to his ownership of the Property; (2) the trial court's order failed to include all parties "and should have no legal effect"; and (3) the Association failed "to submit evidence to support [its] traditional summary judgment motion," in which the Association argued that Oddis "had no interest in the property in question."
We conclude that the Association proved as a matter of law that Oddis was not an owner of record of the foreclosed property at the time of the foreclosure. He therefore lacked standing to challenge the Association's foreclosure or its authority as the homeowners' association for the property. Accordingly, we affirm.
Background
This dispute centers around a property originally purchased in 1999 by Jeffrey Banks and Mildred Dunn, also known as Mildred Garrett, located at 1727 Park Harbor Estates Drive in Houston, Texas (the Property). The Property is located in one unit, or section, of a large Park Harbor subdivision. The Association is the homeowners association for the larger Park Harbor subdivision, and it acted in that capacity pursuant to the Declaration of Covenants, Conditions, and Restrictions for Park Harbor (the Declaration), filed in the Harris County property records in 1987.
The dispute between Mildred and the Association dates back at least to 2010. The Association presented evidence that it filed suit against Mildred in 2010 because she had been collecting assessments from other homeowners in her unit of the Park Harbor neighborhood under the name "Park Harbor HOA." Mildred counter-claimed, asserting that the Association was not the authorized homeowners association for her unit of the neighborhood. The trial court in that 2010 suit found in favor of the Association and declared, in relevant part, that "Mildred Dunn has no authority to act as the homeowners association in the Park Harbor community" and "has no authority to levy or collect assessments, homeowners' dues, or other fines and fees based on deed restrictions from members of the Park Harbor Improvement Association, Inc." In the 2010 suit, the trial court further determined that the Association "is the authorized homeowners association for the Park Harbor neighborhood" and "has authority to act under the Declaration of Covenants, Conditions, and Restrictions for Park Harbor." The Association also won attorney's fees against Mildred Dunn as a prevailing party in the 2010 lawsuit.
On February 2, 2011, Mildred became the sole owner of the Property. Jeffery Banks, who the parties indicate had been married to Mildred, executed a general warranty deed granting the property to Mildred. The deed was filed in the Harris County property records.
The Association continued to assess fees against the Property, and Mildred became delinquent in paying the assessments. The Association notified Mildred that it would enforce its rights to collect the assessments if she remained delinquent, including enforcement through foreclosure on the Property.
Several lawsuits were filed over the following years. Mildred, acting as a board member of the "Park Harbor Estates HOA" sued the Association seeking restitution for the assessments collected by the Association. Mildred again filed suit in December 2012, challenging the Association's authority to collect assessments and to act under the Declaration. While Mildred's December 2012 lawsuit was pending, the Association filed an expedited foreclosure suit against Mildred in 2013. Mildred added claims for wrongful foreclosure to her pending 2012 lawsuit. Mildred's claims in these cases were resolved on motions for summary judgment in favor of the Association, but the Association did not foreclose on the Property following the 2013 foreclosure suit.
The Association filed a second expedited foreclosure suit against Mildred in 2015. Then, on April 12, 2016, Mildred filed a new document in the Harris County property records (the 2016 document). This 2016 document was composed of an exact copy of the 2011 warranty deed by which Jeffery Banks had transferred the Property to Mildred, plus one additional page with a single handwritten notation: "MADE CORRECTION: ADDED ODDIS DUNN TO DEED." Oddis Dunn was not named in the warranty deed itself, and the additional page did not name a grantor or grantee. It did not describe the capacity in which Dunn should be added to the deed. It was not signed by anyone.
The Dunns allege that Mildred then received notice of the foreclosure sale of the Property on May 12, 2016. She filed another lawsuit against the Association on June 3, 2016, challenging the Association's authority to levy assessments against the Property pursuant to the Declaration and alleging wrongful foreclosure. Both the 2015 foreclosure proceedings and the 2016 suit filed by Mildred were resolved in the Association's favor.
The Association foreclosed on the Property, and the Property was sold at auction on August 1, 2017.
Mildred filed this suit against the Association on January 31, 2020. This time she added Oddis Dunn, whom she identified as her husband, as a plaintiff. The Dunns alleged that, on April 12, 2016, Mildred "deeded half her interest [in] the Property to her husband [Oddis]" and recorded it in the Harris County property records, apparently referring to the 2016 document. The Dunns attached to their petition a copy of the 2016 document, consisting of the refiled 2011 warranty deed from Jeffrey Banks to Mildred Dunn and the additional handwritten notation. The Dunns asserted that when the Association provided Mildred notice of the foreclosure of the Property on May 12, 2016, the Association failed to provide similar notice to Oddis. Thus, the Dunns alleged that the 2016 foreclosure was unlawful because Oddis was not given proper notice. The Dunns further argued that the foreclosure was unlawful because the Association lacked authority to assess fees against the Property.
On September 4, 2020, the Association moved for summary judgment. It argued that Mildred was collaterally estopped from challenging its authority based on the prior litigation between them, including the final judgment in the 2010 case establishing that the Association is the authorized homeowners association in Park Harbor with the authority to act under the Declaration. The Association further argued that Oddis was not an owner of the Property. To support its motion for summary judgment, the Association filed copies of documents related to the previous litigation with Mildred, copies of the 2011 general warranty deed, the 2016 document, affidavits and other documents from the Association, including a copy of the Declaration that was filed in the county property records, plats of the subdivision, and evidence related to Mildred's collection of assessments on behalf of the "Park Harbor HOA" or "Park Harbor Homeowners' Assn."
On December 29, 2020, Mildred's attorney filed a response on her behalf, asserting that Oddis Dunn was an owner of the Property. The only evidence Mildred included with her response was a copy of the 2016 document, which Mildred claimed was a correction deed.
Also on December 29, 2020, Dunn's attorney filed the "Plaintiff's motion for Nonsuit." This motion identified Mildred as the movant and asked the trial court "to enter an order for nonsuit for all claims asserted by Plaintiff Mildred Dunn against Defendant and for dismissal of this suit without prejudice."
On December 30, 2020, Oddis filed a "first amended response," repeating the same argument asserted by Mildred in her December 29 response-i.e., that by virtue of the 2016 document, Oddis was an owner of the property, thus creating a material fact dispute and precluding summary judgment. Oddis did not attach any evidence to this response.
The trial court granted the Association's motion for summary judgment, signing a final summary judgment order on January 5, 2021. The trial court ordered that the "Plaintiff takes nothing by her claims against Defendant," and stated that "[t]his Order disposes of all affirmative claims by Plaintiff in the case at bar and is final for purposes of appeal."
The form order-entitled "Order Granting Defendant's Amended Traditional Motion for Final Summary Judgment"-signed by the trial court in this case appears to have been taken from previous litigation between the parties, as the style of the order identified "Park Harbor Estates Board Member" as the plaintiff and the Association as the defendant. The form order likewise listed the trial court and cause number from a previous suit filed by Mildred against the Association. The trial court here struck through the erroneous cause number and court information and wrote in the cause number for this case and trial court-i.e., trial court cause number 2020-06897 in the 234th District Court of Harris County.
Oddis filed a notice of appeal challenging the judgment on January 6, 2021.
On January 14, 2021, the Association filed a motion to modify the judgment to reflect the correct plaintiff or plaintiffs, which the Association asserted should be Oddis Dunn individually-because Mildred had previously filed a nonsuit of her claims-or, alternatively, should be both Oddis and Mildred. Oddis's attorney opposed the motion to modify, pointing out that Mildred had nonsuited her claims and asserting that the Association "seeks not merely to modify the judgment as against Oddis Dunn, the only remaining Plaintiff, but also [to] create a judgment against Mildred Dunn who had no live claims at the time of summary judgment." The trial court denied the motion to modify on January 25, 2021.
Summary Judgment
In his first and third issues, Oddis argues that the trial court erred in granting the Association's motion for summary judgment because there was a material fact question as to his ownership of the Property and because the Association failed to submit evidence to support its claim.
A. Standard of Review
We review a trial court's summary judgment de novo. Lujan v. Navistar, Inc., 555 S.W.3d 79, 84 (Tex. 2018). When reviewing a summary judgment, we take as true all evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve any doubts in the nonmovant's favor. Bush v. Lone Oak Club, LLC, 601 S.W.3d 639, 646 (Tex. 2020).
To prevail on a traditional motion for summary judgment, the movant must show that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Tex.R.Civ.P. 166a(c); Lujan, 555 S.W.3d at 84. "If the movant carries this burden, the burden shifts to the nonmovant to raise a genuine issue of material fact precluding summary judgment." Lujan, 555 S.W.3d at 84. A matter is conclusively established if reasonable people could not differ as to the conclusion to be drawn from the evidence. City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005).
B. Analysis
To establish a claim for wrongful foreclosure, a plaintiff must prove the following: (1) a defect in the foreclosure sale proceedings; (2) a grossly inadequate selling price; and (3) a causal connection between the defect and the grossly inadequate selling price. Johnson v. Bank of Am., N.A., No.01-21-00432-CV, 2022 WL 3363191, at *3 (Tex. App.-Houston [1st Dist.] Aug. 16, 2022, no pet.) (mem. op.) (citing Duncan v. Hindy, 590 S.W.3d 713, 723 (Tex. App.-Eastland 2019, pet. denied)); Montenegro v. Ocwen Loan Servicing, LLC, 419 S.W.3d 561, 569 (Tex. App.-Amarillo 2013, pet. denied). Oddis alleged that he had an ownership interest in the Property and that there was a defect in the foreclosure sale proceedings because he did not receive proper notice of the foreclosure. The Association argued, in part, that Oddis's wrongful foreclosure claim failed as a matter of law because he was not an owner of the Property at the time the Association foreclosed.
The Association presented evidence, including the 1999 special warranty deed conveying the Property to "Jeffery Banks and Spouse Mildred Garrett," the 2011 general warranty deed conveying the Property from Banks to Mildred, and the Deed under Execution and Order of Sale from the foreclosure. The Association also filed documents from the previous litigation between Mildred and the Association, including the final judgment from the 2010 lawsuit in which the Association was declared the authorized homeowners association for Park Harbor, other litigation documents, and an assumed name record showing that Mildred acted as a "board member" of the "Park Harbor Estates Home Owners Association." These documents show that, based on the 1999 conveyance to Jeffrey Banks and Mildred and the 2011 general warranty deed from Banks to Mildred, Mildred became the sole owner of the Property in 2011. The Deed under Execution and Order of Sale identified the foreclosure sale was made pursuant to an order of sale issued on June 1, 2017 by the County Civil Court at Law No. 2 of Harris County, based on a judgment against Mildred Dunn.
Oddis now argues that he had an ownership interest in the Property prior to foreclosure because of the 2016 document that was filed in the Harris County property records on April 12, 2016. That document consisted of copy of the 2011 warranty deed signed by Jeffrey Banks transferring the Property to Mildred and an additional page that said only, "MADE CORRECTION: ADDED ODDIS DUNN TO DEED." Oddis was not named in the warranty deed itself, and the additional page did not name a grantor or grantee. It did not describe the capacity in which Oddis should be added to the deed. It was not dated, nor was it signed by anyone.
The Association argues that the 2016 document is not a valid conveyance, nor is it a valid correction deed, and we agree. Property Code section 5.021 provides, "A conveyance of an estate of inheritance, a freehold, or an estate for more than one year, in land and tenements, must be in writing and must be subscribed and delivered by the conveyor or by the conveyor's agent authorized in writing." Tex. Prop. Code § 5.021. This Court has held that an instrument accomplishes a legally valid conveyance "if (1) from the instrument as a whole a grantor and grantee can be ascertained and (2) there are operative words of grant showing an intention by the grantor to convey to the grantee title to a real property interest, (3) which is sufficiently described, and (4) the instrument is signed and acknowledged by the grantor[.]" Gordon v. W. Hous. Trees, Ltd., 352 S.W.3d 32, 43 (Tex. App.-Houston [1st Dist.] 2011, no pet.).
The 2016 document consisted of a copy of the 2011 general warranty deed from Jeffrey Banks to Mildred that did not name Oddis as a grantee. The additional notation in 2016 document that "added Oddis Dunn to the deed" does not identify the grantor of any interest to Oddis, nor is it signed by the grantor. Thus, the 2016 document does not accomplish a legally valid conveyance of interest in the Property to Oddis. See Tex. Prop. Code § 5.021; Gordon, 352 S.W.3d at 43.
To the extent Oddis argues that the 2016 document is a valid correction to the 2011 conveyance from Banks to Mildred, that claim likewise fails. The Property Code authorizes the correction of an ambiguity or error in a recorded original instrument of conveyance to transfer real property or an interest in real property. See Tex. Prop. Code § 5.027; Offord v. Carson, No. 01-19-00815-CV, 2021 WL 3358023, at *7 (Tex. App.-Houston [1st Dist.] Aug. 3, 2021, no pet.) (mem. op.). Nonmaterial corrections may be made by a person "who has personal knowledge of facts relevant to the correction of a recorded original instrument of conveyance." Tex. Prop. Code § 5.028(a). A correction instrument purporting to make a material change must be "executed by each party to the recorded original instrument of conveyance the correction instrument is executed to correct" and recorded in the county where the original instrument was recorded. See id. § 5.029(b). Nothing in the 2016 document indicates that the "correction" of adding Oddis to the deed was made by a person with personal knowledge, nor was that notation properly "executed," as would be required to make a nonmaterial correction pursuant to section 5.028. See id. § 5.028(a), (d). Nor was it executed by either party to the original instrument, as would be required to make a material correction. See id. § 5.029(b); see also Offord, 2021 WL 3358023, at *8-9 (holding that correction instrument purporting to name different grantee was not correcting "clerical error" and thus had to comply with statutory provisions for making material correction to deed).
Thus, we conclude that the refiling the 2011 general warranty deed conveying the Property from Jeffrey Banks to Mildred with the addition of the notation, "MADE CORRECTION: ADDED ODDIS DUNN TO DEED," did not convey any property interest to Oddis. Nothing in the summary judgment record provided any other support for Oddis's claim that he had an ownership interest in the Property at the time of the foreclosure.
Oddis argues for the first time on appeal that, because he is married to Mildred, he has a community property interest in the Property. However, Oddis did not make this argument in the trial court, and he failed to present any evidence to the trial court regarding his marriage to Mildred or the nature of their community property. "Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal." Tex.R.Civ.P. 166a(c). Oddis also included in the appendices to his appellate briefs some additional documents purporting to convey an interest in the Property to him, including a quitclaim deed. However, we may not consider matters outside the record, which includes documents attached to a brief as an exhibit or an appendix that were not before the trial court. See Democratic Schs. Research, Inc. v. Rock, 608 S.W.3d 290, 305 (Tex. App.-Houston [1st Dist.] 2020, no pet.); Greystar, LLC v. Adams, 426 S.W.3d 861, 865 (Tex. App.-Dallas 2014, no pet.).
Thus, the Association demonstrated that Mildred was the Property's owner of record when the foreclosure litigation commenced in 2015, and she remained the sole owner of record of the Property through the foreclosure sale of the Property in 2017. Oddis failed to raise a genuine issue of material fact as to his alleged ownership interest in the Property. Because he did not demonstrate an ownership interest in the Property, Oddis lacks standing to complain about the foreclosure proceedings and the Association's authority to assess or collect fees and related expenses. See Heckman v. Williamson Cnty., 369 S.W.3d 137, 154-55 (Tex. 2012) (standing, as component of subject-matter jurisdiction, requires "a concrete injury to the plaintiff" that must be personal in nature). Accordingly, we conclude that the Association was entitled to summary judgment in its favor on Oddis's claims.
We overrule Oddis's first and third issues on appeal.
Summary Judgment Order
In his second issue, Oddis contends that the trial court's order failed to include all parties "and should have no legal effect." He asserts that the final judgment order in this case granted summary judgment against "an entity who is not a party to the case in question." He further asserts that the final judgment "doesn't address Oddis Dunn at all" and thus the order "cannot survive or stand as a legally binding judgment as filed with the court."
To the extent that Oddis argues that the trial court's final summary judgment order was not final and appealable because it did not dispose of Oddis's claims, we disagree. A judgment rendered without a conventional trial on the merits, as here, is final if (1) it actually disposes of every pending claim and party or (2) it clearly and unequivocally states that it finally disposes of all claims and parties, even if it does not actually do so. In re Guardianship of Jones, 629 S.W.3d 921, 924 (Tex. 2021); In re Elizondo, 544 S.W.3d 824, 828 (Tex. 2018). Here, the trial court's final summary judgment contained unequivocal finality language. It states, in relevant part, "This Order disposes of all affirmative claims asserted by Plaintiff in the case at bar and is final for purposes of appeal." The order is, therefore, final. See Elizondo, 544 S.W.3d at 828 (orders containing "clear and unequivocal" finality phrase disposing of entire case means that order is final and failure to actually dispose of all claims and parties renders order erroneous, but not interlocutory).
To the extent that Oddis is arguing that the trial court's final summary judgment is erroneous because it does not identify him by name as a plaintiff, we likewise disagree that this failure requires reversal or makes the final summary judgment order legally ineffective. Oddis points to the fact that the form order signed by the trial court in this case was apparently taken from previous litigation filed by Mildred in her capacity as a purported board member of the Park Harbor Estates HOA. When the trial court signed the final order of summary judgment in this case, it corrected the cause number and the trial court listed in the order, but it did not make any further corrections to the caption or style of the case, which identified "Park Harbor Estates Board Member," as the plaintiff. The body of the order itself states generally that "Plaintiff takes nothing by her claims against Defendant [the Association]" and that the order disposes of all claims "asserted by Plaintiff in the case at bar."
Considering the language in the order and the entirety of the record, we conclude that the trial court's final order for summary judgment rendered judgment against Oddis as the plaintiff even if he was not specifically named in the order. Nothing in the record indicates that the parties were confused about whose claims were adjudicated in the final order of summary judgment. The petition in this case named two plaintiffs-Mildred (who had appeared at times in the ongoing litigation with the Association as a board member of the Park Harbor Estates HOA) and Oddis. Mildred nonsuited her claims on December 29, 2020. Oddis was then the only party with claims still pending, and those claims were addressed by the Association's motion for summary judgment. Thus, the trial court's order "that Plaintiff takes nothing" can only refer to Oddis, even though he was not specifically named as a plaintiff in the caption or style at the top of the order.
Oddis himself recognized the legal import of the trial court's final judgment in his opposition to the Association's motion to modify the judgment. He argued to the trial court that modification was not appropriate because Mildred had nonsuited her claims and that the Association's motion to modify improperly sought "not merely to modify the judgment as against Oddis Dunn, the only remaining Plaintiff, but also [to] create a judgment against Mildred Dunn who had no live claims at the time of summary judgment." The response shows that Oddis asked the trial court to deny the motion to modify because it was already a "judgment as against Oddis Dunn, the only remaining Plaintiff." He cannot now argue that the trial court erred in denying the motion to modify the final judgment or that the final summary judgment order was erroneous because it did not identify him by name. See, e.g., In re Tex. Farm Bureau Mutual Ins. Co., No. 01-19-00742-CV, 2020 WL 573249, at *5 (Tex. App.-Houston [1st Dist.] Feb. 6, 2020, orig. proceeding) (discussing invited error doctrine and stating that party "cannot ask something of the trial court and then complain that the trial court erred by granting the request") (quoting Haler v. Boyington Capital Grp., Inc., 411 S.W.3d 631, 637 (Tex. App.- Dallas 2013, pet. denied)).
Conclusion
We affirm the judgment of the trial court.