      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-07-00702-CV



                                       Justin Belt, Appellant

                                                  v.

                 Point Venture Property Owners’ Association, Inc., Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT
       NO. D-1-GV-86-405401, HONORABLE JOHN K. DIETZ, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Appellant Justin Belt brings this appeal pro se from an order to disburse the excess

proceeds from a tax foreclosure sale of property to appellee Point Venture Property Owners’

Association, Inc. (“PVPOA”). See Tex. Tax Code Ann. § 34.04 (West 2008). For the reasons that

follow, we affirm the trial court’s order.

               The underlying suit was brought in 1986 by various taxing units1 to recover

delinquent taxes, penalties, and interest owed on property commonly known as 18509 Lakehead

Circle (the “Property”) in the Point Venture subdivision against Earle C. Swogger, the owner of

the Property. On April 3, 2001, the trial court entered judgment for the taxing units and ordered the

clerk to issue an order of sale. The clerk thereafter issued an order of sale, the Property was sold at



       1
        The taxing units were Travis County, Lago Vista Independent School District, Travis
County Emergency Services District No. 1, and Water Control Improvement District-Point Venture.
a foreclosure sale in May 2007, and the excess proceeds from the sale of $26,960.69 were deposited

with the clerk of the court.

               In June 2007, PVPOA filed a petition asserting a claim to the excess proceeds based

on past-due property owners’ association fees owed on the Property. PVPOA asserted that “Earle

C. Swogger has failed to pay the Club Fund Charges, Special Assessment Fees, Late Fees, and

Attorney Collection Fees” on the Property “for the following years and in the following amounts:

Year 2002 in the amount of $10,335.00; Year 2003 in the amount of $960.00; Year 2004 in

the amount of $960.00; Year 2005 in the amount of $960.00; Year 2006 in the amount of $960.00;

Year 2007, through May 1, 2007, in the amount of $400.00; for a total of $14,575.00.”2 PVPOA

claimed that the past-due fees were secured by a lien on the Property as provided for in the

subdivision’s deed restrictions.

               The subdivision’s deed restrictions establish a “Venture Yacht and Country Club

Charge” secured by a lien on each property:


       In order to secure the payment of the Club Fund charge hereby levied, a vendor’s lien
       shall be and is hereby reserved in the Deed from the Developer to the purchaser of
       each lot or portion thereof, which lien shall be enforceable through appropriate
       judicial proceedings by the Developer.




       2
          PVPOA’s petition to recover excess proceeds was supported by an affidavit from PVPOA’s
general manager with attached business records. PVPOA’s general manager averred that he was the
custodian of records and that the business records showing the outstanding fees owed on the Property
were kept in the regular course of business. Although Belt argues in his briefing to this Court that
PVPOA’s claim was for “approximately 21 years of alleged, unpaid property owners’ association
dues,” Belt did not offer evidence to support this argument or contrary evidence to PVPOA’s
affidavit and business records.

                                                 2
PVPOA’s bylaws define “Club Fund Charge” to include “[d]ues, assessments, interest, late charges,

maintenance fees, maintenance fund, and club fund charges.” The deed restrictions were recorded

in the Travis County real property records.

                Justin Belt also filed a petition asserting a claim to the excess proceeds as a former

owner of the Property. Belt purchased the Property from Earle C. Swogger by “Quitclaim Deed” in

April 2007 “[t]ogether with the conveyance of all existing encumbrances, debts, liens, taxes, and

property owners’ association dues.” The trial court held two hearings on the competing petitions to

the excess proceeds and ordered $14,575.00 of the excess proceeds disbursed to PVPOA and

$12,385.69 of the excess proceeds disbursed to Belt. This appeal followed.

                Belt contends that the trial court erred in ordering excess proceeds from the

foreclosure sale disbursed to PVPOA, raising the identical eight issues3 that Robert Belt raises in

Robert Belt v. Point Venture Property Owners’ Association, Inc., cause number 03-07-00701-CV.

Both causes involve competing claims to excess proceeds from the tax foreclosure sale of property

and are similar factually except as to the parties, properties, and amounts in the underlying tax

sale. We conclude that the factual differences in the two causes do not change our analysis of




        3
          In his first and sixth issues, Justin Belt asserts that the applicable limitations period bars
PVPOA’s lien claim to the excess proceeds. In his second issue, Belt contends that PVPOA’s
remedy was to bring suit to collect past-due association fees, not to seek recovery of the excess
proceeds from a tax foreclosure sale. In his third, fourth, and fifth issues, Belt contends that sections
of the property and tax codes extinguished or voided PVPOA’s lien claim for past-due fees and, if
the sections did not, PVPOA’s lien claim passed to the purchaser at the tax foreclosure sale. In his
seventh issue, Belt contends that trial court errors resulted in an incorrect decision and, in his eighth
issue, Belt contends that, because Belt was a former owner of the Property, the trial court should
have ordered the excess proceeds distributed to him pursuant to priorities in the tax code.

                                                   3
the issues raised in Robert Belt v. Point Venture Property Owners’ Association, Inc., cause number

03-07-00701-CV.

               Because the issues raised in each appeal are identical, for the reasons stated in our

opinion dated this day in Robert Belt v. Point Venture Property Owners’ Association, Inc., cause

number 03-07-00701-CV, we overrule Belt’s issues and affirm the trial court’s order disbursing

excess proceeds in the amount of $14,575.00 to Point Venture Property Owners’ Association, Inc.




                                             __________________________________________

                                             Jan P. Patterson, Justice

Before Justices Patterson, Puryear and Henson

Affirmed

Filed: July 30, 2008




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