AFFIRMED; Opinion Filed May 1, 2019.




                                              In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-18-00580-CV

                    TERENCE E. SUMNER, Appellant
                                V.
     HARBOR OWNERS ASSOCIATION, INC. A/K/A HARBORSIDE ESTATES &
                  HARBORVIEW ADDITION, Appellee

                      On Appeal from the 192nd Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. DC-16-09417

                              MEMORANDUM OPINION
                           Before Justices Bridges, Brown, and Nowell
                                   Opinion by Justice Nowell
       Following a bench trial, the trial court rendered judgment in favor of appellee Harbor

Owners Association, Inc. (the “HOA”), and filed findings of fact and conclusions of law. In six

issues, appellant Terence E. Sumner asserts the evidence is legally and factually insufficient to

support five of the trial court’s findings of fact, and argues the award of appellate attorney’s fees

is incorrect. We affirm the trial court’s judgment.

                                     FACTUAL BACKGROUND

       Sumner owns the property located at 5201 Panama Drive in Rowlett, Texas (the

“Property”); the Property is within the HOA. Sumner and the HOA’s Board of Trustees (the

“Board”) had numerous disputes, which began approximately four years after Sumner purchased

the Property and continued intermittently for more than a decade. The disputes generally related
to Sumner’s failures to maintain the Property and the fines the HOA levied against him. The

record includes numerous letters the HOA sent to Sumner in 2012 and 2013 instructing him to:

           (1)        remove a dryer stored in the alley;

           (2)        repair and repaint his chimney;

           (3)        repair and repaint the house trim;1

           (4)        replace missing shingles from the roof;2

           (5)        trim the trees;3

           (6)        mow and edge his yard, including the side yard and back fence line at the alley, and

                      collect and discard all grass clippings;4

           (7)        remove weeds, trim bushes and trees, and mow and edge lawn; 5

           (8)        mow the lawn;6

           (9)        treat and remove weeds from the alley and/or side yard;7

           (10)       “weedeat/line edge in the back of your home”;8

           (11)       replace areas of missing sod;

           (12)       repair his fence that was leaning;9

           (13)       re-stain his fence;10 and

           (14)       haul away debris piled up on the driveway.




     1
       The record contains three letters telling Sumner to repair and repaint the trim on his house.
     2
       The record contains two letters telling Sumner to replace missing shingles from his roof.
     3
       The record contains two letters telling Sumner to trim the trees.
     4
       The record contains three letters telling Sumner to mow and edge his yard, including side yard and back fence line at the alley, and collect
and discard all grass clippings. The record contains another letter asking Sumner to mow, edge, and maintain the alley at the fence line, including
removing weeds.
     5
       The record contains six letters telling Sumner to remove weeds, trim bushes and trees, and mow and edge the lawn.
     6
       The record contains two letters telling Sumner to mow his lawn.
     7
       The record contains two letters telling Sumner to treat and remove weeds from the alley and/or side yard, and another letter instructing
Sumner to treat the lawn for weeds.
     8
       The record contains three letters telling Sumner to “weedeat/line edge” behind his house.
     9
       The record contains six letters telling Sumner to repair his fence that was leaning.
     10
        The record contains two letters telling Sumner to re-stain his fence.
                                                                      –2–
The letters state that if the corrective actions are not taken, then fines may be levied. The notices

instruct Sumner to refer to Section 6.02 of the HOA’s Declarations of Covenants, Conditions and

Restrictions, which states:

       6.02 Maintenance by Owners. Each Owner, at all times, shall maintain, repair
       and otherwise be responsible for his Lot and the Improvements thereon. . . .

It is uncontested the HOA did not promulgate specific standards for the maintenance and repair of

the lots and improvements within the association.

       Sumner testified he is responsible for maintaining and repairing his Property.             He

acknowledged receiving dozens of notices from August 2012 until the lawsuit was filed in August

2016 about violations on his Property. He fixed some problems and not others. However, he

believed he maintained the Property, as evidenced by his home remaining standing.

       The HOA sued Sumner on August 4, 2016, to collect money owed to the HOA for

assessments, fines, interest, and attorney’s fees accrued as a result of Sumner’s failures to pay his

HOA assessments, maintain the Property, and pay fines. Following a bench trial, the trial court

entered judgment in favor of the HOA and awarded damages and attorney’s fees, including

appellate attorney’s fees. The trial court also filed findings of fact and conclusions of law. This

appeal followed.

                                         LAW & ANALYSIS

       In his first five issues, Sumner challenges five of the trial court’s findings of fact. In an

appeal from a bench trial, the trial court’s findings of fact have the same weight as a jury verdict.

Wyde v. Francesconi, 566 S.W.3d 890, 894 (Tex. App.—Dallas 2018, no pet.). When the appellate

record contains a reporter’s record, as it does in this case, findings of fact are not conclusive and

are binding only if supported by the evidence. Id. We review a trial court’s findings of fact under

the same legal and factual sufficiency of the evidence standards used when determining if

sufficient evidence exists to support an answer to a jury question. Id. When an appellant
                                                –3–
challenges the legal sufficiency of an adverse finding on which he did not have the burden of proof

at trial, he must demonstrate there is no evidence to support the adverse finding. Id. When

reviewing the record, we determine whether any evidence supports the challenged finding. Id. If

more than a scintilla of evidence supports the finding, the legal sufficiency challenge fails. Id.

When an appellant challenges the factual sufficiency of the evidence on an issue, we consider all

the evidence supporting and contradicting the finding. Id. We set aside the finding for factual

insufficiency only if the finding is so contrary to the evidence as to be clearly wrong and manifestly

unjust. Id. The trial court, as factfinder, is the sole judge of the credibility of the witnesses. Id.

As long as the evidence falls “within the zone of reasonable disagreement,” we will not substitute

our judgment for that of the fact-finder. Id. (quoting City of Keller v. Wilson, 168 S.W.3d 802,

822 (Tex. 2005)).

        In his first issue, Sumner asserts the evidence does not support the trial court’s finding of

fact number three, which states: “The Association, at Section 4.09 of the Declaration[,] is granted

the right, after notice and opportunity for hearing, to levy fines for infractions of the Declaration.”

Section 4.09 of the HOA’s Declarations of Covenants, Conditions and Restrictions states:

        4.09 Enforcement. The Association shall have the right, after Notice and
        Opportunity for Hearing, to levy fines for infraction of the provisions of this
        Declaration or the Rules and Regulations, provided (i) the Member shall have been
        warned in writing of the previous infraction within the preceding one (1) year, and
        (ii) the fine conforms to the provisions of section 9.11.


Although Sumner’s first issue is phrased as a challenge to the sufficiency of the evidence

supporting finding of fact number three, in his argument, he agrees that Section 4.09 of the

Declaration grants the HOA the right to levy fines. His argument is that the Board meeting minutes

from January 16, 2013, do not show the Board adopted a fine policy and, therefore, the Board

lacked authority to assess fines and collection costs. Sumner does not challenge the amount of the

fine.
                                                 –4–
       Section 4.09 grants the HOA the authority to levy fines for infractions of the Declaration

after notice and an opportunity for hearing. There is no evidence the HOA lacked this authority.

We conclude the evidence is legally and factually sufficient to support the trial court’s finding of

fact number three.

       As to whether the Board adopted a fine policy, there is evidence in the record that it did.

The Board discussed the fining policy during the November 2012 board meeting. The minutes

from the January 16, 2013 board meeting state: “Discussion held regarding pending fining policy

matter . . . Discussion was held on improving the fining letters verbiage, and updating the fining

policy and fining schedule.” The February 20, 2013 minutes state under the heading “Old

Business”: “Fining Policy: Filed and will go on PMG website and notification to homeowners.”

On March 5, 2013, the Board mailed a letter to homeowners and included “your newest Fining

Policies.” The document included with the letter, which was titled Covenant Enforcement and

Fining Policy, was filed on February 14, 2013. The Covenant states it replaces a previous fining

policy. Sumner does not point to any evidence in the record showing the Covenant Enforcement

and Fining Policy was not adopted and filed or that it was not filed in accordance with relevant

provisions of the Texas Property Code.

       Based on our review of the record, we conclude more than a scintilla of evidence shows

the Board adopted the new fining policy, it was filed in February 2013, and the Board had the

authority to assess fines against Sumner. No evidence indicates the policy was not adopted and

filed. We overrule Sumner’s first issue.

       In his second issue, Sumner challenges the legal and factual sufficiency of the evidence to

support the trial court’s finding of fact number six, which states: “The Defendant violated the

Declaration by failing to maintain and repair the property located at 5201 Panama Drive, Rowlett,

Texas[,] and failed to pay the Assessments when due.” Sumner argues the evidence is insufficient

                                                –5–
to show he failed to maintain and repair the Property because there “are no specific guidelines on

weeds, yard maintenance, fences, repaint trim, tree trimming, roofs, all of which were fines

assessed against Mr. Sumner.” He does not challenge the portion of the trial court’s finding that

he failed to pay his assessment when due.

       Section 6.02 of the Declaration requires each owner to “maintain, repair and otherwise be

responsible for his Lot and the Improvements thereon.” The evidence shows the HOA cited

Sumner repeatedly for failures to maintain and repair his Property.           The record includes

photographs showing the condition of Sumner’s Property at various times. Sumner testified he

did not comply with several notices because the HOA lacked any maintenance guidelines and he

did not know what the HOA wanted him to do. However, based on the evidence, including

Sumner’s own admissions, the trier of fact—here, the trial court—was free to conclude Sumner

did not maintain and repair the Property, even though he proffered a reason for his failures to do

so. We conclude more than a scintilla of evidence supports the trial court’s finding. Further, the

finding is not so contrary to the evidence as to be clearly wrong and manifestly unjust. Therefore,

we conclude the evidence is legally and factually sufficient. We overrule Sumner’s second issue.

       In his third issue, Sumner challenges the sufficiency of the evidence to support the trial

court’s finding of fact number seven, which states: “The Board approved the fines associated with

Mr. Sumner’s account.” The board’s fining policy sets forth the procedures for levying fines

against owners who violate the restrictive covenants in the HOA’s governing documents. The

process includes establishing the existence of a violation, reporting the violation to the lot owner,

providing written notice of the violation, and notifying the owner about a fine.

       Patrick Mack joined the Board in 2015 and was president of the Board at the time of trial.

Mack testified Sumner did not maintain and repair his Property at all times. The Board discussed

Sumner’s violations “many times” during executive sessions, and the Board authorized the

                                                –6–
violation notices sent to Sumner. Mack testified violation letters are only mailed with the Board’s

express approval. Mack explained the Board discussed fines during executive sessions, not during

open meetings, to “respect the privacy of the homeowners” and comply with statutes protecting

information of a debtor. For privacy reasons, the Board minutes do not include the owner’s name

or address of the property being discussed. Board minutes in the record reflect “[d]elinquencies

and legal issues” and “[e]nforcement actions” were discussed numerous times during executive

sessions.

       We conclude more than a scintilla of evidence supports the trial court’s finding of fact

number seven. Further, the finding is not so contrary to the evidence as to be clearly wrong and

manifestly unjust. Therefore, we conclude the evidence is legally and factually sufficient. We

overrule Sumner’s third issue.

       In his fourth issue, Sumner challenges the sufficiency of the evidence to support the trial

court’s finding of fact number nine, which states: “Defendant, by his own admission in testimony,

that [sic] he failed to remedy these violations.” Sumner argues the evidence shows he attempted

to comply with the HOA’s requests for maintenance and repairs, but the HOA did not have any

standards with which to comply, and he did not know what the HOA wanted.

       Sumner testified he did not comply with several notices from the HOA, including its letters

for him to trim the trees, mow and edge the back-alley line and keep it weed-free, and collect the

grass clippings. Sumner testified: “Many of [the notices] I did not comply with within the time

frame that was mentioned or I did not fully comply because I didn’t know what they wanted. . . .

I had no guidelines.” Although Sumner offered an explanation about why he did not comply with

the notices, there is more than a scintilla of evidence to support the trial court’s finding that Sumner

admitted he did not remedy violations, and the finding is not so contrary to the evidence as to be




                                                 –7–
clearly wrong and manifestly unjust. Therefore, we conclude the evidence is legally and factually

sufficient to support the trial court’s ninth finding of fact. We overrule Sumner’s fourth issue.

           In his fifth issue, Sumner challenges the sufficiency of the evidence to support the trial

court’s finding of fact number ten, which states: “Due to when payments were received and

applied, as directed by the Texas Property Code, Defendant owed delinquent assessments and

attorney’s fees that were incurred to recover said delinquent assessments at the time the judgment

was entered.” Sumner asserts the HOA did not apply his payments as required by section 209.0063

of the Texas Property Code. Section 209.0063 states:

           (a) Except as provided by Subsection (b),11 a payment received by a property
               owners’ association from the owner shall be applied to the owner’s debt in the
               following order of priority:
                   (1) any delinquent assessments;
                   (2) any current assessment;
                   (3) any attorney’s fees or third party collection costs incurred by the
                       association associated solely with assessments or any other charge that
                       could provide the basis for foreclosure;
                   (4) any attorney’s fees incurred by the association that are not subject to
                       Subdivision (3);
                   (5) any fines assessed by the association; and
                   (6) any other amount owed to the association.

TEX. PROPERTY CODE ⸹ 209.0063(a).

           Leticia Reaux testified she works for the HOA’s property management company. On

December 28, 2016, Sumner made a payment of $120. At that time, because he was not delinquent

on paying any assessments and no current assessments were pending, the payment was applied to

unpaid attorney’s fees associated with his account. Sumner’s HOA assessment due on January 1,

2017, was not paid. Reaux testified about a spreadsheet, which was admitted as an exhibit at trial,

showing payments, assessments, late fees, attorney’s fees, fines, and collection costs associated

with Sumner’s account. The spreadsheet reflects how the December 28, 2016 payment was



   11
        Subsection (b) is not relevant to this litigation.

                                                             –8–
applied. Although Sumner complains the December 28, 2016 payment should have been applied

to his January 1, 2017 assessment, the trial court could have concluded the January 1, 2017

assessment was not due when the December 28 payment was received and, therefore, pursuant to

the statute, the HOA was required to apply the payment to outstanding attorney’s fees. The

spreadsheet also shows Sumner was delinquent in paying assessments and the HOA incurred

attorney’s fees to collect the delinquent assessments.

         We conclude there is more than a scintilla of evidence to support the trial court’s finding

of fact number ten and the finding is not so contrary to the evidence as to be clearly wrong and

manifestly unjust. Therefore, we conclude the evidence is legally and factually sufficient to

support the trial court’s tenth finding of fact. We overrule Sumner’s fifth issue.

         In his sixth issue, Sumner asserts the trial court’s award of attorney’s fees in the amount of

$10,000 for an appeal to the Texas Supreme Court “is incorrect as it does not set out the steps in

an appeal to the Texas Supreme Court.” The trial court’s judgment awards the HOA $10,000 in

attorney’s fees if Sumner unsuccessfully appeals the judgment to this Court and an additional

$10,000 if he unsuccessfully appeals to the Texas Supreme Court.

         Citing Sky View at Las Palmas, LLC v. Mendez, 555 S.W.3d 101 (Tex. 2018), Sumner

argues: “The attorney fees for each stage of the appeal must be conditioned on the party awarded

the attorney fees to be successful. . . . Without each stage $10,000 for the Petition for review stage

is not reasonable.” Sumner does not explain how the supreme court’s recent opinion supports his

argument and shows error in the trial court’s judgment. Nothing in that opinion requires the trial

court’s judgment set forth fees associated with various stages of an appeal to the Texas Supreme

Court.

         It is well-settled that where attorney’s fees are recoverable, the award may include

appellate attorney’s fees. Henderson v. Chrisman, No. 05-14-01507-CV, 2016 WL 1702221, at

                                                  –9–
*5 (Tex. App.—Dallas Apr. 27, 2016, no pet.). An unconditional award of appellate attorney’s

fees is improper; therefore, the trial court must condition fees to appellee on appellant’s

unsuccessful appeal. Id. Here, the final judgment awards $10,000 in attorney’s fees to the HOA

if Sumner “unsuccessfully appeals to the Supreme Court of Texas.” Because the award of

appellate fees is conditioned on Sumner’s unsuccessful appeal, we conclude the trial court’s award

is not in error. We overrule Sumner’s sixth issue.

                                          CONCLUSION

       We affirm the trial court’s judgment.




                                                 /Erin A. Nowell/
                                                 ERIN A. NOWELL
                                                 JUSTICE

180580F.P05




                                               –10–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

 TERENCE E. SUMNER, Appellant                        On Appeal from the 192nd Judicial District
                                                     Court, Dallas County, Texas
 No. 05-18-00580-CV          V.                      Trial Court Cause No. DC-16-09417.
                                                     Opinion delivered by Justice Nowell.
 HARBOR OWNERS ASSOCIATION,                          Justices Bridges and Brown participating.
 INC. A/K/A HARBORSIDE ESTATES &
 HARBORVIEW ADDITION, Appellee

     In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.

       It is ORDERED that appellee HARBOR OWNERS ASSOCIATION, INC. A/K/A
HARBORSIDE ESTATES & HARBORVIEW ADDITION recover its costs of this appeal from
appellant TERENCE E. SUMNER.


Judgment entered this 1st day of May, 2019.




                                              –11–
