Opinion issued May 28, 2015




                                   In The

                              Court of Appeals
                                  For The

                        First District of Texas
                          ————————————
                            NO. 01-14-00311-CV
                         ———————————
                       CHRISTINA BOB, Appellant
                                     V.
        CYPRESSWOOD COMMUNITY ASSOCIATION, Appellee


            On Appeal from the County Civil Court at Law No. 3
                          Harris County, Texas
                      Trial Court Case No. 1036047




                        MEMORANDUM OPINION

     This is an appeal from a suit to recover homeowner’s association fees.

Christina Bob appeals the trial court’s summary judgment in favor of the

Cypresswood Community Association, awarding it the fees and associated costs.
Bob contends that (1) the trial court erred in failing to rule on her pending motions

before it granted summary judgment; (2) the Association was required to join

Bob’s husband as a party to the suit; (3) the Association’s attorney violated the

Texas Disciplinary Rules of Professional Conduct; (4) the Association violated its

Declaration of Covenants, Conditions, and Restrictions; (5) the Association

misapplied her payments; (6) the trial court abused its discretion in denying a new

trial; and (7) the trial court erred in denying her motion to correct a clerical error.

Finding no error, we affirm.

                                    Background

      In 2006, Bob purchased a lot within Section Four of the Cypresswood

residential subdivision.    The lot is subject to the maintenance charges and

assessments found within the Association’s Declaration. In 2013, the Association

filed suit against Bob for past due assessments and collection costs. Bob generally

denied the claims.     The Association then moved for summary judgment and

submitted affidavit evidence of damages totaling $2,207.38. Bob did not file a

response, but she moved for a continuance of the summary judgment hearing and

for leave to file a late response. In January 2014, the trial court granted summary

judgment and denied Bob’s motions.

                                     Discussion

      We liberally construe Bob’s pro se brief.



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      Standard of Review

      We review de novo the trial court’s ruling on a motion for summary

judgment. Samuel v. Fed. Home Loan Mortg. Corp., 434 S.W.3d 230, 233 (Tex.

App.—Houston [1st Dist.] 2014, no pet.) (citing Mann Frankfort Stein & Lipp

Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009)). In a traditional

motion for summary judgment, like the one filed in this case, the movant must

establish that no genuine issue of material fact exists and that the movant is entitled

to judgment as a matter of law. See TEX. R. CIV. P. 166a(c); Little v. Tex. Dep’t of

Crim. Justice, 148 S.W.3d 374, 381 (Tex. 2004). A judgment seeking affirmative

relief requires a movant to prove that it is entitled to judgment as a matter of law

on each element of its cause of action. Winchek v. Am. Express Travel Related

Servs. Co., Inc., 232 S.W.3d 197, 201 (Tex. App.—Houston [1st Dist.] 2007, no

pet.) (citing Rhone–Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222–23 (Tex. 1999),

and Rizkallah v. Conner, 952 S.W.2d 580, 582 (Tex. App.—Houston [1st Dist.]

1997, no writ)). “Only if the movant conclusively establishes its cause of action

does the burden shift to the nonmovant to respond with evidence raising a genuine

issue of material fact that would preclude summary judgment.” Id. at 202 (citing

Steel, 997 S.W.2d at 222–23). We indulge every reasonable inference in the

nonmovant’s favor. Samuel, 434 S.W.3d at 233 (citing Valence Operating Co. v.




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Dorsett, 164 S.W.3d 656, 661 (Tex. 2005), and Provident Life & Accident Ins. Co.

v. Knott, 128 S.W.3d 211, 215 (Tex. 2003)).

      I.     Pre-Trial Motions

      Bob first contends that the trial court made a clerical error in not

“acknowledging” or “present[ing] for consideration” her (1) motion for leave to

file a late response to the motion for summary judgment and supporting documents

and (2) motion for a continuance of the summary judgment hearing. She further

contends that the court did not rule on her motions before granting summary

judgment. However, the record on appeal contains orders denying both motions,

signed on the same day as the summary judgment. Accordingly, we hold that she

presents no error regarding the trial court’s failure to rule.

      II.    Failure to Join Indispensable Party

      Bob next contends that the Association failed to join her husband as a party

to the suit because, she contends, he is a co-owner of the property.

      Applicable Law

      Chapter 209 of the Texas Property Code applies to residential subdivisions

that are subject to a declaration authorizing a residential property owners’

association to collect regular or special assessments on all or a majority of the

property in the subdivision. See TEX. PROP. CODE ANN. § 209.003(a) (West 2013).

It applies to associations that require mandatory membership for all or a majority



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of the owners of residential property within a subdivision, each of whom is subject

to the association’s dedicatory instruments. Id. § 209.003(b). Under Chapter 209,

an “owner” is “a person who holds record title to property in a residential

subdivision . . . .” Id. § 209.002(6). “‘Record title’ means title as it appears in the

public records after the deed is properly recorded.” Longoria v. Lasater, 292

S.W.3d 156, 165 (Tex. App.—San Antonio 2009, pet. denied) (citing BLACK’S

LAW DICTIONARY at 1523 (8th ed. 2004)).

      Analysis

      The Association is subject to a Declaration of Covenants, Conditions, and

Restrictions and is authorized to collect assessments on the property within its

subdivision. See TEX. PROP. CODE ANN. § 209.003(a). Additionally, it provides

that each person who is a record owner in the subdivision “shall be a member of

the Cypresswood Homeowners’ Association.”             See TEX. PROP. CODE ANN.

§ 209.003(b).

      In the warranty deed for the property at issue, the grantee is “Christina Bob,

A Married Woman.” Additionally, in the deed of trust, the borrower is “Christina

Bob, A Married Woman,” although Bob’s husband also signed it. Although Bob

observes that a later transfer of the mortgage lien lists her husband as a borrower,

the warranty deed contains only her name. Thus, she is the owner of the property

for purposes of Chapter 209 of the Property Code; we hold that the Association’s



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decision to sue Bob only, and not her husband, does not warrant reversal. See TEX.

PROP. CODE ANN. § 209.002; Longoria, 292 S.W.3d at 165; BLACK’S LAW

DICTIONARY at 829.

      III.   Attorney Conflict of Interest

      Next, Bob contends that the Association’s attorneys engaged in professional

misconduct because they directly communicated with her during their

representation of the Association; such communication, she contends, amounts to a

conflict of interest. She cites to the provision in the Texas Disciplinary Rules of

Professional Conduct governing the conduct of a lawyer acting as an intermediary

between clients.     See TEX. DISCIPLINARY RULES PROF’L CONDUCT R. 1.07,

reprinted in TEX. GOV’T CODE ANN., tit. 2, subtit. G, app. A (West 2013). But the

Association’s attorneys represented the Association, not Bob. She adduced no

evidence that the Association’s attorneys purported to act as an intermediary or

jointly represented both the Association and Bob.          See id.    Bob further

acknowledges that she was not represented by an attorney in this case; thus, the

Association’s attorneys were not prohibited from communicating directly with

Bob, so long as they identified themselves as counsel for the Association. See

TEX. DISCIPLINARY RULES PROF’L CONDUCT R. 4.03. We hold that Bob does not

present a complaint of professional misconduct.




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       IV.     Issues Raised in the Motion for New Trial

       Bob contends that the Association (1) violated its declaration when it did not

schedule a time for her to inspect its books and records, in response to her request

to do so; (2) was not authorized by the Declaration to charge the amounts it claims

that Bob owes in unpaid assessments and costs; (3) misapplied one of her

payments; and (4) charged too much in assessment costs while denying her access

to recreational facilities, all in violation of the Declaration.

       Applicable Law

       We will not consider a ground for reversal that was not expressly presented

to the trial court by written motion, answer, or other response to the motion for

summary judgment. See TEX. R. CIV. P. 166a(c) (“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.”); Unifund CCR Partners v. Weaver,

262 S.W.3d 796, 797–98 (Tex. 2008) (per curiam) (“[A] party who fails to

expressly present to the trial court any written response in opposition to a motion

for summary judgment waives the right to raise any arguments or issues post-

judgment.”).

       Analysis

       Bob raised the forgoing issues in her motion for new trial after the trial court

granted the Association’s motion for summary judgment, but she did not raise



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them in a response to the motion for summary judgment. Similarly, in her motion

for leave to file a late response, Bob contended that she had requested documents

from the Association before it filed suit. But she did not raise a request to inspect

its books or records. The trial court did not authorize the late-filed evidence, and it

did not state that it considered that evidence in denying the motion for a new trial.

Because Bob did not raise her complaints about record inspection, overcharges,

denial of access, misapplication of payments, and a violation of the Declaration

before the trial court had granted summary judgment, these complaints are not

grounds for reversal. See TEX. R. CIV. P. 166a(c); Unifund, 262 S.W.3d at 797–98.

      Additionally, Bob waived these issues on appeal because she did not cite to

the record to support her contentions, nor did she cite any legal authority to support

her contention that the Association misapplied her payment. See TEX. R. APP. P.

38.1(i) (“The brief must contain a clear and concise argument for the contentions

made, with appropriate citations to authorities and to the record.”).           In the

remaining issues, she cited the Association’s Declaration without citing other legal

authority. See id.

      We hold that Bob waived her appellate complaints about inspecting the

Association’s records, its authorization to charge assessment costs, misapplication

of payments, and denial of access to recreational facilities by failing to timely




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present them in the trial court. See TEX. R. CIV. P. 166a(c); TEX. R. APP. P. 38.1(i);

Unifund, 262 S.W.3d at 797–98.

      V.     Visiting Judge

      Finally, in her “Issues Presented” section of her brief, Bob contends that a

visiting judge erred in denying her a new trial and in refusing to reverse the trial

court’s prior rulings. Bob does not address this issue in her brief; accordingly, we

hold that she has waived it on appeal. See TEX. R. APP. P. 38.1(i).

                                    Conclusion

      We affirm the trial court’s summary judgment.




                                              Jane Bland
                                              Justice

Panel consists of Justices Keyes, Bland, and Massengale.




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