Opinion
No. 05-11-00695-CV
08-02-2012
MARK MCGOWAN AND BEVERLY KIRKPATRICK-MCGOWAN, Appellants v. MEADOWWOOD PARK RANCH ESTATES HOMEOWNERS ASSOCIATION, Appellee
AFFIRM; Opinion issued August 2, 2012
On Appeal from the County Court at Law
Kaufman County, Texas
Trial Court Cause No. 78670CC
MEMORANDUM OPINION
Before Justices Bridges, Francis, and Lang
Opinion By Justice Bridges
Mark McGowan and Beverly Kirkpatrick-McGowan appeal the trial court's summary judgment in favor of Meadowwood Park Ranch Estates Homeowners Association. In two issues, the McGowans argue the trial court erred in granting summary judgment because (1) they were not given the minimum notice required by law, and (2) genuine issues of material fact existed concerning their claims for breach of contract and violation of the Texas Water Code. We affirm the trial court's judgment.
In June 2002, the McGowans purchased property in a housing development managed by the Association. The property abuts a lake designated as a “common area.” The portion of the lake adjacent to the property is dammed, and part of the dam is located on the property. In December 2010, the McGowans sued the Association alleging the Association had a duty to repair and maintain the dam and had ignored this duty, resulting in flooding on the property. Among others, the McGowans asserted a cause of action for breach of contract and a claim that the Association violated the Texas Water Code by constructing or maintaining a dam, spillways, overflow ditch, roads, drainage systems, and water courses leading into and abutting their home in such a way as to divert surface water onto their property.
The Association filed a motion for no-evidence and traditional summary judgment asserting the property is partly situated in the emergency spillway of a lake that was built prior to the formation of the Association. As to the breach of contract claim, the motion asserted there was no contract between the McGowans and the Association, and the Association therefore owed no duty as the McGowans alleged. The motion quoted the McGowan's allegation that the Association had the following duty and breached that duty:
. . . to maintain and repair the common and limited common elements contiguous to their home and by failing to maintain, repair or modify as necessary the dam, spillway, overflow ditch, roads, drainage systems, and watercourses leading to and abutting [the McGowans'] home.The motion asserted that, although the Association “has various duties that arise from the Covenants, Conditions and Restrictions, more commonly referred to as the Deed Restrictions and there are duties created by the By-laws of the homeowners' association,” the duties described by the McGowans do not exist in the Deed Restrictions.
As to the McGowan's strict statutory liability claims under the Texas Water Code, the motion asserted there was no evidence: (1) the Association diverted or impounded the natural flow of surface waters, (2) the water the McGowans complained of was “the natural flow of surface water,” (3) “the natural flow of surface water” caused any damage to the McGowan's property, and (4) the damage was caused by the overflow of the water diverted or impounded.
The trial court denied the Association's no-evidence motion for summary judgment but granted the association's traditional motion for summary judgment as to the McGowan's fiduciary duty, strict statutory liability under the Texas Water Code, and exemplary damages claims. As to the McGowan's breach of contract claim, the court granted traditional summary judgment in part and denied it in part and found the only duty the Association owed the McGowans under the deed restriction was “to maintain and repair the common and limited common elements contiguous to their home” and there was no duty owed to the McGowan's separate real property. The McGowans' remaining claims were tried to a jury, and a verdict was returned for the Association. This appeal followed.
In their first issue, the McGowans argue the trial court erred in granting summary judgment without affording them the minimum notice required by law. Specifically, the McGowans complain they did not receive 21 days' notice of the January 13, 2011 hearing on the Association's motion for summary judgment, and the trial court's summary judgment is therefore void as a matter of law. Because summary judgment is a harsh remedy, we must strictly construe the notice requirements of the rules of civil procedure. Etheredge v. Hidden Valley Airpark Ass'n, Inc., 169 S.W.3d 378, 381 (Tex. App.-Fort Worth 2005, pet. denied). Under rule 166a(c), the movant is required to serve its summary judgment motion on the nonmovant at least 21 days before the hearing and to give the nonmovant at least 21 days' notice of the hearing. Tex. R. Civ. P. 166a(c); see also Lewis v. Blake, 876 S.W.2d 314, 315 (Tex.1994) (per curiam) (“Respondent's right under Rule 166a(c) is to have minimum notice of the hearing.”). If, as in this case, the notice of the hearing is served separately from the motion, by mail, “the notice must contain a certificate of service and it must be served at least 24 days before the hearing.” Tanksley v. CitiCapital Commercial Corp., 145 S.W.3d 760, 763 (Tex. App.-Dallas 2004, pet. denied); see also Tex. R. Civ. P. 21a (“Whenever a party has the right or is required to do some act within a prescribed period after the service of a notice or other paper upon him and the notice is served upon him by mail . . . three days shall be added to the prescribed period.”).
Here, the Association filed its motion for traditional and no-evidence summary judgment on December 17, 2010. On December 20, 2010, the Association faxed notice that the hearing on the motion was set for January 6, 2011. The next day, the McGowans' attorney notified the Association that the notice only provided seventeen days' notice when the rules require a minimum of twenty-one. On December 30, 2010, the McGowans filed a formal objection in the trial court complaining the Association failed to comply with the notice requirements of rule 166a(c) and objecting to the court considering the motion for summary judgment. In the alternative, the McGowans “move[d] for a continuance of the January 6 hearing.” Also on December 30, 2010, the Association filed a motion seeking to have the hearing reset to January 13, 2011, twenty-four days after the Association first gave notice the motion for summary judgment was set for a hearing.
On January 6, 2011, the McGowans filed an objection to the January 13, 2011 hearing setting because it only gave them fourteen days notice of the reset hearing. Also on January 6, 2011, the trial court reset the hearing for January 13, 2011, and permitted the McGowans to file their response to the motion for summary judgment on January 12, 2011. Thus, McGowans had twenty-four days from the time they received notice of a hearing on the Association's motion for summary judgment and the hearing itself. See Tex. R. Civ. P. 166a(c). Further, a party cannot request a specific action from the trial court and then complain on appeal that the trial court committed error in granting the requested relief. See Tittizer v. Union Gas Corp., 171 S.W.3d 857, 862 (Tex. 2005). The McGowans requested the trial court grant a continuance of the January 6, 2011 hearing. This is what the trial court did, extending the hearing to a date 24 days from the date the Association gave notice of the hearing on the motion for summary judgment. See Tanksley, 145 S.W.3d at 763. Under these circumstances, we conclude the McGowan's complaints regarding the lack of notice lack merit. See Tittizer, 171 S.W.3d at 862. We overrule the McGowans' first issue.
In their second issue, the McGowans argue the trial court erred in granting partial summary judgment on their contract claim and claim under the Texas Water Code. While the McGowans phrase their arguments under this issue in terms of a challenge to a no evidence summary judgment, we note the trial court denied the Association's no evidence summary judgment. Therefore, we address the McGowan's argument in terms of a traditional summary judgment standard. The standards for reviewing summary judgments are well established. W. Inv., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005). In a traditional motion for summary judgment under rule 166a(c), the movant must establish that there is no genuine issue of material fact so that the movant is entitled to judgment as a matter of law. Id. In reviewing a summary judgment, we consider the evidence in the light most favorable to the non-movant and resolve any doubt in the non-movant's favor. Id.; Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985).
Here, the Association moved for traditional summary judgment on the McGowan's contractual claim on the basis that the duties described by the McGowans did not exist in the deed restrictions. Specifically, the Association asserted the deed restrictions did not impose the duty “to maintain and repair the common and limited common elements contiguous to their home . . . .” The trial court disagreed and denied the Association's motion for summary judgment in part, finding the Association did owe the McGowans such a duty under the deed restrictions. However, the trial court granted summary judgment on the issue of whether the deed restrictions imposed a duty as to the McGowan's “separate real property,” determining that the Association owed no such duty.
The McGowans argue the Association's motion for summary judgment on this issue “limited the inquiry concerning the existence of a contractual duty to the deed restrictions” and required the trial court “to make the legal conclusion . . . that the deed restrictions were the only contract between the parties before concluding there was no evidence of a duty in that sole document.” On the contrary, the trial court denied summary judgment on the Association's claim that the deed restrictions imposed no duty to maintain and repair the common and limited common elements contiguous to the McGowan's home. Further, the Association's motion for summary judgment “acknowledge[d] that the homeowners' association has various duties that arise from the Covenants, Conditions, and Restrictions, more commonly referred to as the Deed Restrictions and there are duties created by the By-laws of the homeowners' association.” Thus, the motion for summary judgment made it clear that, under the deed restrictions, the Association did owe a duty to maintain common areas but not as to the McGowan's separate property. The McGowans argue the summary judgment determined the Association owed no duty whatsoever to protect the McGowans' separate real property, and they argue the bylaws imposed contractual duties on the Association. As we have discussed, the motion for summary judgment addressed only the deed restrictions and whether they imposed a duty on the Association to maintain common areas; the trial court determined the Association did owe such a duty under the deed restrictions. The summary judgment did not address the existence of other contractual duties and did not rule out their existence. Thus, we conclude the McGowan's complaint concerning the contractual claim under the deed restrictions lacks merit.
As to the claims under the Texas Water Code, the McGowans argue summary judgment was improper on their claim under section 11.086(a) of the water code, which provides “no person may divert or impound the natural flow of surface waters in this state, or permit a diversion or impounding by him to continue, in a manner that damages the property of another by the overflow of the water diverted or impounded.” Tex. Water Code Ann. § 11.086(a) (West 2008). Surface water is “[t]hat which is defused over the ground from falling rains or melting snows, and continues to be such until it reaches some bed or channel in which water is accustomed to flow.” Dalon v. City of DeSoto, 852 S.W.2d 530, 538 (Tex. App.-Dallas 1992, writ denied) (quoting City of Princeton v. Abbott, 792 S.W.2d 161, 163 (Tex. App.-Dallas 1990, writ denied). Surface waters do not follow a defined course or channel and do not gather or form a natural body of water. Dalon, 852 S.W.2d at 538. When rainfall is under control, either by ditches, tanks, ponds, or pipes, it is no longer considered surface water. Id.
The chief characteristic of surface water is its inability to maintain its identity and existence as a body of water, distinguishing it from water flowing in a natural watercourse. Id. If the floodwater forms a continuous body with the water flowing in the ordinary channel, or if it temporarily overflows presently to return, as by recession of the waters, it is to be regarded as part of the stream. Id. The McGowans' claim is that the Association violated the Texas Water Code by constructing or maintaining a dam, spillways, overflow ditch, roads, drainage systems, and water courses leading into and abutting their home in such a way as to divert surface water onto their property. However, the water under control in these areas can no longer be considered surface water, and any damage caused by these waters does not constitute a violation of section 11.086(a). See Tex. Water Code Ann. § 11.086(a) (West 2008); Dalon, 852 S.W.2d at 538-39. Accordingly, summary judgment was proper on the McGowan's claims under the water code. See Urena, 162 S.W.3d at 550. We overrule the McGowan's second issue.
We affirm the trial court's judgment.
DAVID L. BRIDGES
JUSTICE
110695F.P05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
MARM MCGOWAN AND BEVERLY KIRKPATRICK-MCGOWAN, Appellants
V.
MEADOWWOOD PARK RANCH ESTATES HOMEOWNERS ASSOCIATION, Appellee
No. 05-11-00695-CV
Appeal from the County Court at Law of Kaufman County, Texas. (Tr.Ct.No. 78670CC).
Opinion delivered by Justice Bridges, Justices Francis and Lang participating.
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED. It is ORDERED that appellee Meadowwood Park Ranch Estates Homeowners Association recover its costs of this appeal from appellants Mark McGowan and Beverly Kirkpatrick-McGowan.
Judgment entered August 2, 2012.
DAVID L. BRIDGES
JUSTICE