Summary
holding that a covenant is a contract between the parties and that recovery of attorney's fees is permitted on a breach of contract action under section 38.001
Summary of this case from Henry v. SmithOpinion
No. 05-11-00380-CV
08-02-2012
CANDLEWOOD CREEK NEIGHBORHOOD ASSOCIATION, Appellant v. LEYA GASHAYE, Appelle
REVERSE and REMAND; Opinion issued August 2, 2012
On Appeal from the 192nd District Court
Dallas County, Texas
Trial Court Cause No. 10-06124-K
MEMORANDUM OPINION
Before Justices Bridges, O'Neill, and Fillmore
Opinion By Justice Bridges
Candlewood Creek Neighborhood Association appeals the trial court's summary judgment awarding Candlewood $50 on its claims against Leya Gashaye. In two issues, Candlewood argues the trial court erred in awarding only $50 in damages and denying its request for an order to foreclose on the subject property and in denying its request for attorney's fees. We reverse the trial court's judgment and remand for further proceedings.
The trial court's summary judgment awarded $50 in damages but does not address the issues of foreclosure or attorney's fees.
Leya Gashaye owns property within the Candlewood association, and the property is subject to a covenant to pay assessments to Candlewood. The obligation to pay assessments is secured by a lien on the property against which each assessment is made. In May 2010, Candlewood filed suit against Gashaye alleging she had failed to pay assessments and seeking foreclosure of the lien securing her obligation to pay the assessments and attorney's fees. Gashaye filed a pro se answer stating "I am going to appear in the court when ever the court date is setup I will write my address to the court as follow." The answer then states Gashaye's address.
Candlewood filed a motion for summary judgment asserting a claim for $1545 in past-due monthly assessments and late fees. Attached to the motion was the affidavit of Suzanne Border, president and authorized agent of Candlewood. The Border affidavit states an assessment of $200 is due each month on Gashaye's property, with a $15 late fee if the assessment is not paid by the fifteenth of any given month. The affidavit states Candlewood's records show Gashaye owed past- due assessments and late fees totaling $1545 as of June 16, 2010. Attached to the affidavit was Candlewood's ledger showing Gashaye's payment history and the past-due amount of assessments, late fees, and collection costs. Also attached to the affidavit was a copy of the covenant, providing the following remedy to Candlewood in the event of non-payment of assessments:
Any assessment not paid within thirty (30) days after the due date shall bear interest from the due date at the rate of ten (10) percent per annum. The Association may bring an action at law against the Owner personally obligated to pay the same, or foreclose the lien against the Lot and interest, costs, and reasonable attorney's fees for such action shall be added to the amount of such assessments as part of the lien against the Lot. No Owner may waive or otherwise escape liability for the assessments provided for herein by non-use of the Common Area or abandonment of his Lot.Candlewood's motion for summary judgment also contained a request for attorney's fees supported by the affidavit of Candlewood's attorney stating $2500 was a reasonable and necessary fee for prosecution of this case in the trial court, $3500 was a reasonable fee to appeal to this Court, and an additional $3500 was a reasonable fee to appeal to the Supreme Court of Texas. Gashaye filed no response to Candlewood's motion for summary judgment. The trial court granted Candlewood's motion for summary judgment but awarded Candlewood $50 and no attorney's fees. This appeal followed.
In its first issue, Candlewood argues the trial court erred in granting Candlewood $50 in damages and denying its request for an order to foreclose on the property. In its second issue, Candlewood argues the trial court erred in denying its request for attorney's fees. Whether a damage award is inadequate or excessive is determined by a review of the factual sufficiency of the evidence to support it. See Larson v. Cactus Util. Co., 730 S.W.2d 640, 641 (Tex. 1987). We consider and weigh all the evidence and set aside the finding only if it is so contrary to the overwhelming weight of the evidence that the finding is clearly wrong and unjust. See Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex. 1998).
Here, the covenant at issue provides for the payment of a monthly assessment, a foreclosure of the lien if the assessment is not paid, and the recovery of attorney's fees for such action. Attached to the motion for summary judgment were affidavits proving $1545 in unpaid assessments and late fees and $2500 in attorney's fees. We conclude the trial court's award of $50 under these circumstances was so contrary to the overwhelming weight of the evidence that the award is clearly wrong and unjust. See id. Further, a homeowner's association covenant is a contract between the parties, and Texas law permits the recovery of attorney's fees on a breach of contract action. See Tex. Civ. Prac. & Rem. Code Ann. § 38.001(8) (West 2008); RM Crowe Prop. Servs. Co., L.P. v. Strategic Energy, L.L.C., 348 S.W.3d 444, 452 (Tex. App.-Dallas 2011, no pet.). We sustain Candlewood's issues. Accordingly, we remand this case for a determination of the proper damage award, foreclosure order, and attorney's fees award consistent with the evidence presented. See State Farm Lloyds v. Borum, 53 S.W.3d 877, 894-95 (Tex. App.-Dallas 2001, pet. denied). We reverse the trial court's judgment and remand for further proceedings.
DAVID L. BRIDGES
JUSTICE
110380F.P05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
CANDLEWOOD CREEK NEIGHBORHOOD ASSOCIATION, Appellant
V.
LEYA GASHAYE, Appellee
No. 05-11-00380-CV
Appeal from the 192nd District Court of Dallas County, Texas. (Tr.Ct.No. 10-06124-K).
Opinion delivered by Justice Bridges, Justices O'Neill and Fillmore participating.
In accordance with this Court's opinion of this date, the judgment of the trial court is REVERSED and this cause is REMANDED to the trial court for further proceedings. It is ORDERED that appellant Candlewood Creek Neighborhood Association recover its costs of this appeal from appellee Leya Gashaye.
Judgment entered August 2, 2012.
DAVID L. BRIDGES
JUSTICE