Opinion filed April 11, 2013




                                            In The


         Eleventh Court of Appeals
                                          ___________

                                     No. 11-11-00102-CV
                                         __________

                                EFRAIN LOPEZ, Appellant

                                               V.

        LOS CIELOS HOMEOWNERS ASSOCIATION, INC., Appellee


                           On Appeal from the 345th District Court
                                      Travis County, Texas
                           Trial Court Cause No. D-1-GN-10-001042



                               MEMORANDUM OPINION
       This is a restricted appeal from a judgment entered against Efrain Lopez. See TEX. R.
APP. P. 30. Los Cielos Homeowners Association, Inc. brought suit against Lopez to collect
delinquent maintenance assessments upon land owned by Lopez, interest thereon, collection
costs, attorney’s fees, and costs of court. Lopez filed a pro se answer generally denying the
claims of Los Cielos. Los Cielos subsequently filed a motion for summary judgment, to which
Lopez filed no response.       The trial court granted the motion and rendered final summary
judgment against Lopez for the principal sum of $1,072.90; interest; a property lien, including
foreclosure and sale; attorney’s fees and expenses incurred as of the summary judgment order of
$2,241.50; attorney’s fees of $1,614 to be incurred in carrying out the judgment through
foreclosure; and costs of court. Because we do not find error on the face of the record, we
affirm.
          Lopez presents two issues in this restricted appeal. In the first issue, Lopez asserts that
the trial court erred in awarding attorney’s fees because Los Cielos did not establish as a matter
of law that it was entitled to attorney’s fees. In his second issue, Lopez asserts that the trial court
erred in including, within the principal sum due, $547 in attorney’s fees because Los Cielos did
not establish the reasonableness of such fees.
          An appellant in a restricted appeal can prevail only if (1) he filed notice of the restricted
appeal within six months after the judgment was signed, (2) he was a party to the underlying
lawsuit, (3) he did not participate in the hearing that resulted in the judgment complained of or
timely file any postjudgment motions or requests for findings of fact and conclusions of law, and
(4) error is apparent on the face of the record. TEX. R. APP. P. 26.1(c), 30; Ins. Co. of State of
Pa. v. Lejeune, 297 S.W.3d 254, 255 (Tex. 2009). Lopez has met the first three requirements.
He filed his notice of appeal exactly six months after the trial court signed the summary
judgment. Lopez was a party to the underlying lawsuit, but he did not participate in any way in
the summary judgment proceedings. Nor did he file any postjudgment motions. Consequently,
only the fourth requirement is of concern in this case, and we must determine whether the errors
alleged by Lopez are apparent on the face of the record. In a restricted appeal, an appellant is
afforded the same scope of review as in an ordinary appeal: a review of the entire case, including
legal and factual sufficiency challenges. Norman Commc’ns v. Tex. Eastman Co., 955 S.W.2d
269, 270 (Tex. 1997). 1 The only restriction on the scope of a restricted appeal is that the error
must appear on the face of the record. Id. Error that is merely inferred will not suffice. Ginn v.
Forrester, 282 S.W.3d 430, 431 (Tex. 2009).
          Los Cielos filed a traditional motion for summary judgment pursuant to TEX. R.
CIV. P. 166a(c). As the moving party under Rule 166a(c), Los Cielos had the burden of showing
that there was no genuine issue as to any material fact and that it was entitled to judgment as a
matter of law. The summary judgment evidence showed that Lopez’s land was covered by a
Declaration of Covenants, Conditions and Restrictions for Los Cielos. The Declaration provided


          1
          We note that the court in Norman identifies the appeal in that case as an appeal by way of “writ of error.” 955 S.W.2d
at 270. Appeals previously known as “writ of error appeals” are now known as restricted appeals. TEX. R. APP. P. 30.

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for regular and special assessments. It also provided that a defaulting landowner would be
responsible for “[a]ll expenses” incurred by Los Cielos in connection with any actions or
proceedings to recover from the landowner. An affidavit included in the summary judgment
evidence showed that Lopez was delinquent in the payment of the assessments and associated
charges and that he owed $1,072.90. A billing statement attached to the affidavit indicated that
Lopez had not made any payment for his quarterly assessments since October 2008 and that he
owed $1,072.90 as of July 11, 2010. This amount included $547 for “prepaid filing fees and
expenses.” Also included in the summary judgment evidence was the affidavit of the attorney
for Los Cielos, in which she swore that $2,241.50 for attorney’s fees through summary judgment
was a reasonable fee, based upon an hourly rate of $200 and expenses of $141.50, and that
further fees of $1,614 would be incurred to effect enforcement and foreclosure.
       Contrary to the argument made by Lopez in his second issue, the record does not reveal
that the charge of $547 that was included in the principal sum due was for attorney’s fees. The
billing statement indicated that the $547 charge was for prepaid filing fees and expenses.
Nothing on the face of the record indicates that the charge of $547 was for attorney’s fees;
therefore, Los Cielos was not required to show the reasonableness of this amount in connection
with its attorney’s fees. Lopez’s second issue is overruled.
       In his first issue, Lopez asserts that Los Cielos did not establish that it was entitled to
attorney’s fees as a matter of law because Los Cielos failed to present any summary judgment
evidence demonstrating that it had satisfied the statutory requirements for the recovery of such
fees, including the presentment of the claim to Lopez and written notice to Lopez that attorney’s
fees and costs would be charged if the delinquency continued after a date certain. As a general
rule, attorney’s fees are not recoverable in Texas unless provided for by contract or by statute.
Dallas Cent. Appraisal Dist. v. Seven Inv. Co., 835 S.W.2d 75, 77 (Tex. 1992). Whether
attorney’s fees are authorized in a particular case is a question of law to be determined by the
court. Haas v. Ashford Hollow Cmty. Improvement Ass’n, Inc., 209 S.W.3d 875, 884 (Tex.
App.—Houston [14th Dist.] 2006, no pet.). The parties rely upon sections from the Texas
Property Code and the Texas Civil Practice and Remedies Code to support their contentions
regarding attorney’s fees. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 38.001, 38.002 (West
2007); TEX. PROP. CODE ANN. § 5.006 (West 2004), § 209.008(a) (West 2007). Los Cielos
sought attorney’s fees pursuant to Section 38.001 of the Civil Practice and Remedies Code and

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Section 5.006 of the Property Code, and Lopez asserts that Los Cielos did not comply with
Section 38.002 of the Civil Practice and Remedies Code or Section 209.008(a) of the Property
Code.
        Section 38.001 of the Civil Practice and Remedies Code provides that reasonable
attorney’s fees may be recovered in certain types of suits, such as suits on a sworn account or a
written contract. Section 38.002 requires that, to recover under Section 38.001, the claim must
have been presented to the opposing party and that payment must not have been tendered by the
opposing party within thirty days of presentment of the claim. The summary judgment evidence
in this case indicates that the claim was presented to Lopez by both Los Cielos and its attorney
and that the claim remained unpaid. The agent for Los Cielos stated in her affidavit that Lopez
“was notified of this violation and failed to pay it.” Therefore, Lopez’s argument based upon
Section 38.002 is not supported by the record.
        The assertions made by the parties in this case with respect to the Property Code were
addressed by the court in Haas. 209 S.W.3d at 884–86. Lopez asks this court to “reject the
analysis and holding of Haas.” We decline to do so. Instead, following Haas, we hold that Los
Cielos was entitled to recover attorney’s fees pursuant to Section 5.006 and that Section
209.008(a) is not controlling in this case. Section 5.006(a) of the Property Code provides, “In an
action based on breach of a restrictive covenant pertaining to real property, the court shall allow
to a prevailing party who asserted the action reasonable attorney’s fees in addition to the party’s
costs and claim.” Section 209.008(a) of the Property Code provides:
                 A property owners’ association may collect reimbursement of reasonable
        attorney’s fees and other reasonable costs incurred by the association relating to
        collecting amounts, including damages, due the association for enforcing
        restrictions or the bylaws or rules of the association only if the owner is provided
        a written notice that attorney’s fees and costs will be charged to the owner if the
        delinquency or violation continues after a date certain.
        Compliance with the written notice requirement of Section 209.008(a) is not a
prerequisite to the recovery of attorney’s fees in this case because that section “does not apply to
attorney’s fees incurred merely to collect delinquent assessment or enforce a lien due to
nonpayment of the assessments.”        Haas, 209 S.W.3d at 885.        The Haas court interpreted
Section 209.008(a) as applying to attorney’s fees incurred to enforce restrictions such as
“situations where an association has incurred costs or sustained damages to remedy a violation or
has levied a fine for a violation,” but not to attorney’s fees incurred in a suit to collect a regular

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or special assessment or to foreclose a lien. Id. at 885–86 (relying on other sections of the
Property Code in the same chapter as Section 209.008(a) to determine legislative intent). The
controlling section of the Property Code for attorney’s fees in suits to collect assessments or
foreclose a lien is Section 5.006. See id. at 884–86. Section 5.006 contains no “written notice”
requirement and states that the prevailing party “shall” be allowed to recover reasonable
attorney’s fees.   We hold that the summary judgment evidence established Los Cielos’s
entitlement to attorney’s fees as a matter of law and that no error relating to the award of
attorney’s fees appears on the face of the record. Accordingly, we overrule Lopez’s first issue.
       The judgment of the trial court is affirmed.




                                                            JIM R. WRIGHT
                                                            CHIEF JUSTICE


April 11, 2013
Panel consists of: Wright, C.J.,
McCall, J., and Willson, J.




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