Opinion issued May 1, 2014




                                     In The

                              Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                              NO. 01-12-00750-CV
                           ———————————
 KENSINGTON PARK HOMEOWNERS ASSOCIATION, INC., Appellant
                                       V.
                          KARL NEWMAN, Appellee


                   On Appeal from the 129th District Court
                            Harris County, Texas
                      Trial Court Case No. 2011-13604


                         MEMORANDUM OPINION

      This is a restricted appeal from a no-answer default judgment. Appellant

Kensington Park Homeowners Association, Inc. argues that the trial court erred in

entering a default judgment in favor of plaintiff-appellee Karl Newman because the

return of service did not strictly comply with the Texas Rules of Civil Procedure.
Newman argues that we lack jurisdiction over this restricted appeal, as appellant is

not the party against whom the default judgment was taken.

      We dismiss the appeal for lack of jurisdiction.

                                BACKGROUND

      This appeal involves a lawsuit by a condominium owner, Newman, against a

homeowners’ association. As a condition of owning several condominium units in

Kensington Park Condominiums, Newman is obligated to pay monthly dues. In

exchange, the homeowners’ association is required, among other things, to

maintain common areas and utilities, provide insurance, pay governmental fees,

and hold regular board of directors’ meetings.

A.    The Previous Dispute

      A previous dispute about whether the homeowners’ association was

fulfilling these obligations led to Newman’s discontinuing payment of his dues and

to the homeowners’ association, in turn, attempting to foreclose on Newman’s

properties. Newman and another homeowner obtained an injunction against the

homeowners’ association, and the dispute was ultimately resolved through a

settlement agreement in late 2006.      That settlement agreement identified the

homeowners’ association as “The New Kensington Park Homeowners Association,

a non-profit corporation, dba Kensington Park Homeowners Association, chartered

under the laws of the State of Texas on September 6, 2006.”


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B.    The Underlying Lawsuit

      In March 2011, Newman sued, alleging that the homeowners’ association

failed to fulfill certain terms of the settlement agreement and therefore breached

the contract. He brought claims for breach of fiduciary duty, breach of contract,

and intentional infliction of emotional distress, seeking $250,000 in actual

damages, punitive damages, attorneys’ fees, costs of court, and prejudgment and

post-judgment interest. His petition identified the defendant as “New Kensington

Park Homeowners Association Inc. d/b/a Kensington Park Homeowners

Association.”

C.    The Default Judgment

      No answer was filed. On August 8, 2011, Newman filed a motion for

default judgment seeking actual damages for breach of contract, plus attorneys’

fees, interest, and court costs. On May 21, 2012, following an unrecorded hearing,

the trial court signed a Final Default Judgment awarding to Newman actual

damages, attorneys’ fees, costs, and post-judgment interest against “Defendant

New Kensington Park Homeowners Association, Inc. D/B/A Kensington Park

Homeowners Association.”

      On August 15, 2012, “Kensington Park Homeowners Association, Inc.” filed

a Notice of Restricted Appeal. That notice of appeal acknowledges that it is not




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the actual entity against which judgment was taken, but appellant nonetheless

requests that we review for error on the face of the record:

      Although Kensington is incorrectly named in this suit and thus not the
      entity against whom the Final Default Judgment was taken,
      Kensington has determined that it is the intended party against whom
      the suit was filed and is a party directly affected by the final Default
      Judgment as Plaintiff Karl Newman is seeking to enforce the Final
      Default Judgment—which he unlawfully obtained against it and has
      expressed an intent to execute on property managed by Kensington
      and owned by its members.

In response, Newman has filed a Motion to Dismiss and Plea to the Jurisdiction.

According to Newman, appellant’s admission that it is “not the entity against

whom the Final Judgment was taken” is a judicial admission that Appellant lacks

standing to bring a restricted appeal challenging it.

                             RESTRICTED APPEAL

      Generally, if a defendant does not timely file an answer and a return of

service has been on file for ten days, the plaintiff may take judgment by default.

See TEX. R. CIV. P. 107(h) & 239. The defendant can prevail on a restricted appeal

challenging that default judgment only if (1) it filed notice of the restricted appeal

within six months after the judgment was signed, (2) it was a party to the

underlying lawsuit, (3) it did not participate in the hearing that resulted in the

judgment complained of and did not 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 Pa. v. Lejeune, 297

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S.W.3d 254, 255 (Tex. 2009) (per curiam). “These requirements are jurisdictional

and will cut off a party’s right to seek relief by way of a restricted appeal if they

are not met.” Clopton v. Pak, 66 S.W.3d 513, 515 (Tex. App.—Fort Worth 2001,

pet. denied).

                               ISSUES ON APPEAL

      In five issues, appellant complains of errors in the service of process,

mathematical errors in the damages calculation, and a variance between the

pleadings and judgment. In response, Newman contends that Kensington Park

lacks standing to bring this appeal, and that Kensington Park’s arguments on the

merits should be rejected.

        IS APPELLANT A “PARTY TO THE UNDERLYING SUIT”?

      A well-settled requirement of a restricted appeal is that the appellant be a

party to the underlying suit. TEX. R. APP. P. 30; e.g., Vazquez v. Vazquez, 292

S.W.3d 80, 83 (Tex. App.—Houston [14th Dist.] 2007, no pet.); Roventini v.

Ocular Scis., Inc., 111 S.W.3d 719, 720 (Tex. App.—Houston [1st Dist.] 2003, no

pet.)1 Here, appellant concedes it was “incorrectly named in this suit and thus not

the entity against whom the Final Default Judgment was taken.”               It argues,

1
      An exception to this rule applies when the nonparty appellant can show itself “to
      be ‘one whose privity of estate, title or interest appears from the record of the
      cause in the court below,’ or one who is the legal representative of such party.”
      Johnson v. Johnson, 841 S.W.2d 114, 115 (Tex. App.—Houston [14th Dist.] 1992,
      no pet.). Appellant has not argued that this exception applies, and nothing in the
      trial court record supports its application.
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however that, under general standing principles, it “has a sufficient relationship

with the lawsuit” to have a justiciable interest in its outcome, see Austin Nursing

Ctr. v. Lovato, 171 S.W.3d 845, 848 (Tex. 2005), such that we should deem it a

“party” for purposes of satisfying this restricted-appeal element. We disagree.

      Default judgment was entered against “Defendant, New Kensington Park

Homeowners      Association,   Inc.   D/B/A     Kensington     Park   Homeowners

Association.” According to appellant Kensington Park Homeowners Association,

Inc., it is not a D/B/A or assumed name of New Kensington Park Homeowner’s

Association, Inc. Moreover, appellant acknowledges that this is not a case of

misnomer (i.e., where the correct defendant’s name is simply misspelled or

otherwise erroneous).     Rather, appellant represents that “Kensington Park

Homeowners’ Association, Inc.” (appellant here), and “New Kensington Park

Homeowners’ Association” (the subject of the trial court’s judgment) are “two

entities. . . separate and apart from one another and were established at different

times.”    Their common thread is that each “has at one time, provided property

management serves to the same community of condominiums.”

      According to appellant, “New Kensington Park is no long in existence” and,

thus, Newman is “seeking to enforce the Final Default Judgment” against appellant

and has “expressed an intent to execute on property managed by [appellant] and

owned by its members.” But Newman never sued appellant. Thus, appellant


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Kensington Park Homeowners’ Association, Inc. was “not a party before the trial

court, and we have no jurisdiction over it now.” Ibrahim v. Young, 253 S.W.3d

790, 800 (Tex. App.—Eastland 2008, pets. denied) (dismissing defendant/appellant

“Kreit PA” from direct appeal, because only “Dr. Kreit” and “Camil Kreit M.D.,

P.A.” were actually sued in the trial court).

      Because appellant “was not a party to the underlying suit . . . we conclude

we lack jurisdiction over this restricted appeal.” In re Baby Girl S., 353 S.W.3d

589, 591 (Tex. App.—Dallas 2011, no pet.).

                                  CONCLUSION

      We dismiss the appeal for want of jurisdiction.




                                                Sherry Radack
                                                Chief Justice

Panel consists of Chief Justice Radack and Justices Massengale and Huddle.




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