                                MEMORANDUM OPINION
                                       No. 04-10-00522-CV

                  VILLAGE GREEN HOMEOWNERS ASSOCIATION, INC.,
                                   Appellant

                                                  v.

                            Diane C. LEEDER f/k/a Diane L. Albright,
                                          Appellee

                    From the 37th Judicial District Court, Bexar County, Texas
                                 Trial Court No. 2009-CI-16941
                          Honorable Janet P. Littlejohn, Judge Presiding

Opinion by:      Marialyn Barnard, Justice

Sitting:         Catherine Stone, Chief Justice
                 Karen Angelini, Justice
                 Marialyn Barnard, Justice

Delivered and Filed: March 2, 2011

REVERSED AND REMANDED

           The trial court granted summary judgment in favor of appellant, Village Green

Homeowners Association, Inc. (“Village Green”), awarding actual damages, attorney’s fees, and

pre- and post-judgment interest. However, the trial court declined to grant Village Green’s

request for foreclosure. On appeal, Village Green contends the trial court abused its discretion

by denying Village Green the ability to foreclose its assessment lien. We must agree and reverse

the trial court’s judgment and remand.
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                                                    BACKGROUND

           Appellee Diane C. Leeder f/k/a Diane L. Albright is the record owner of real property

located at 27525 Woodland Green in Boerne, Texas. 1 The property is located in the Village

Green Subdivision (“Subdivision”), Unit 1. The Subdivision is subject to a Declaration of

Covenants, Conditions, and Restrictions (“the Declaration”). The Declaration was executed on

November 6, 1997, and was properly recorded in the real property records of Bexar County,

Texas on January 14, 1998. The Declaration includes, in pertinent part, the following:

                    5.2     Every person or entity who is a record Owner of a fee or
                    undivided fee interest in any Lot which is subject, by covenants of
                    record, to assessment by the Association . . . shall be a Member of
                    the Association. . . . Membership shall be appurtenant to and may
                    not be separated from any ownership of any Lot which is subject to
                    assessment by the Association. Ownership of such Lot shall be the
                    sole qualification for membership.

                                                           ...

                    6.1     (a) Assessments established by the Board pursuant to the
                    provisions of this Article VI . . . shall be levied on a uniform basis
                    against each Lot within the Property . . . .

                                                           ...

                           (b) Each unpaid Assessment together with such interest
                    thereon and costs of collection thereof as hereinafter provided,
                    shall be the personal obligation of the owner of the property
                    against which the Assessment fell due, and shall become a lien
                    against each such Lot and all Improvements thereon. The
                    Association may enforce payment of such Assessments in
                    accordance with the provisions of this Article.

                                                           ...

                    6.6     All sums assessed in the manner provided in this Article
                    Six but unpaid, shall together with interest as provided in Section
                    6.5 hereof and the cost of collection, including attorney’s fees as
                    herein provided, thereupon become a continuing lien and charge on


1
    Although the property is located in the City of Boerne, the property lies in Bexar County.

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               the Lot covered by such Assessment, which shall bind such Lot in
               the hands of the Owner . . . .

                                               ...

                       (c) . . . Such lien for payment of Assessment shall attach
               with the priority above set forth from the date that such payment
               becomes delinquent and may be enforced by . . . (ii) the
               Association instituting suit against the Owner personally obligated
               to pay the Assessment and/or foreclosure of the aforesaid lien
               judicially.

       Under the Declaration, Leeder was required to make quarterly assessment payments,

which were established by the Board of Directors. Leeder’s general warranty deed was recorded

in September of 2004. At the time of the suit, Leeder owed $2,545.67. Village Green brought

suit on the assessment debt, requesting actual damages, interest, attorney’s fees, court costs, and

foreclosure.   Although Leeder was properly served, she never filed a formal answer, but

responded to the suit by filing some incomplete discovery, thereby appearing. See Exito Elecs.

Co. v. Trejo, 142 S.W.3d 302, 305 (Tex. 2005) (“[A] party enters a general appearance when it

(1) invokes the judgment of the court on any question other than the court’s jurisdiction, (2)

recognizes by its acts that an action is properly pending, or (3) seeks affirmative action from the

court.” (citing Dawson-Austin v. Austin, 968 S.W.2d 319, 322 (Tex. 1998))). Village Green then

filed a motion for summary judgment. Leeder did not file a response, nor did she attend the

summary judgment hearing.       The trial court granted Village Green’s motion for summary

judgment, and awarded $3,320.67 in actual damages, $2,250.00 in attorney’s fees, and pre- and

post-judgment interest. However, the trial court refused to foreclose Village Green’s lien on

Leeder’s property or grant an order of sale. Village Green timely appealed.




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                                            ANALYSIS

       In two issues, Village Green argues the trial court abused its discretion by not foreclosing

the lien on Leeder’s property for refusing to pay her assessments. We agree.

       Village Green moved for summary judgment under 166(a) of the Texas Rules of Civil

Procedure. See TEX. R. CIV. P. 166a. We review the trial court’s summary judgment de novo.

See Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 156 (Tex. 2004). In order to prevail,

a movant must establish there is no genuine issue of material fact and the movant is entitled to

judgment as a matter of law. See id. at 158. In deciding whether the movant establishes the

absence of material fact, “we take as true all evidence favorable to the nonmovant, and we

indulge every reasonable inference and resolve any doubts in the nonmovant’s favor.” Id.

       In order to prevail on its motion for summary judgment, Village Green was required to

prove as a matter of law: (1) the existence of a lien against Leeder’s property securing payment

of the assessments, attorney’s fees, costs, and interest; (2) Leeder’s failure to pay the debt

secured by the lien; and (3) entitlement to foreclosure on the lien against Leeder’s property to

satisfy the debt. See Sloan v. Owners Ass’n of Westerfield, Inc., 167 S.W.3d 401, 403-04 (Tex.

App.—San Antonio 2005, no pet.).

       The Texas Supreme Court has held that a homeowners’ association’s lien is superior to

the homeowner’s homestead right if the homeowner takes title after the Declaration is filed.

Inwood N. Homeowners’ Ass’n, Inc. v. Harris, 736 S.W.2d 632, 635-36. If the Declaration is

filed before the homeowner takes possession, the assessment lien runs with the land, and the

association has a right of foreclosure if assessments are not paid. Id. at 635. “[A] covenant runs

with the land when it touches and concerns the land; relates to a thing in existence or specifically

binds the parties and their assigns; is intended by the original parties to run with the land; and



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when the successor to the burden has notice.” Id. The Declaration and its covenants, in this

case, meet these requirements. See id.

       This court has also addressed the issue:

               Because all of the obligations intended to be secured by the lien in
               this case were included in the original Declaration, and because the
               [homeowners] had notice of both the obligation and the existence
               of the lien at the time they purchased the property, we conclude
               that foreclosure is available to the Association as a remedy.

Sloan, 167 S.W.3d at 406. Here, as in Sloan, Village Green duly recorded their lien years before

Leeder purchased the property. Because the contractual lien runs with the land and Leeder had

notice of the lien when she purchased the property, foreclosure is proper. See Harris, 736

S.W.2d at 635-36; Sloan, 167 S.W.3d at 406.

       Although the supreme court noted that foreclosure is a harsh remedy when the debt is

significantly less than the value of the homestead, the court felt it necessary to “enforce the

agreements into which homeowners entered concerning the payment of assessments.” Harris,

736 S.W.2d at 637. Therefore, we sustain Village Green’s issues and reverse and remand the

judgment of the trial court so that it may issue an order of foreclosure.

                                           CONCLUSION

       Village Green’s issues are sustained, and the cause is reversed and remanded to the trial

court for further proceedings consistent with this opinion.


                                                   Marialyn Barnard, Justice




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