      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-15-00513-CV



                                 Elwyn D. Shumway, Appellant

                                                  v.

   Whispering Hills of Comal County Texas Property Owners Association, Inc., Appellee


     FROM THE DISTRICT COURT OF COMAL COUNTY, 22ND JUDICIAL DISTRICT
         NO. C2015-0215A, HONORABLE DIB WALDRIP, JUDGE PRESIDING



                             MEMORANDUM OPINION


                Elwyn D. Shumway appeals from the trial court’s grant of the motion to dismiss

filed under Texas Rule of Civil Procedure 91a by Whispering Hills of Comal County Texas Property

Owners Association, Inc. (the Association). See Tex. R. Civ. P. 91a.1 (providing that “a party may

move to dismiss a cause of action on the grounds that it has no basis in law or fact”). We will affirm

the trial court’s order.

                Shumway owns two lots in the Whispering Hills Subdivision.1 The developer intended

that these lots could be used for either residential or commercial purposes, and the lots were

advertised and sold as commercial property. Shumway also intended that the lots be used for

commercial purposes when he purchased them.


        1
          The facts recited herein are taken from Shumway’s trial-court pleadings and the exhibits
attached to them. We will take the allegations Shumway makes in his pleadings and exhibits as true.
See Tex. R. Civ. P. 91a.1.
                However, the deed restrictions attached to Shumway’s warranty deed, which was

recorded in October 1984, include the following: “All tracts shall be used solely for residential

purposes, except tracts designated for business purposes . . . .” Shumway’s contract for deed includes

a similar restriction: “The property herein described shall be used solely for new residential purposes.

All other tracts shall be used solely for residential purposes, except tracts designated on the

subdivision plat for business purposes . . . .” No designations were made on the subdivision plat.

                In 2014, Shumway asked the Association to agree that his property could be used for

either residential or commercial purposes. The Association replied that, pursuant to the deed

restrictions, Shumway’s lots could only be used for residential purposes. Shumway filed this suit

in February 2015 asking the trial court to declare that his lots could be used for either residential or

commercial purposes.

                The Association filed a motion to dismiss raising two grounds for dismissal. First,

the Association argued that Shumway’s own pleadings and exhibits, taken as true, establish that

Shumway’s lots could not be used for commercial purposes because the deed and contract for deed

expressly limit the use to residential purposes unless the lots were designated for business purposes

on the subdivision plat—which they were not, by Shumway’s own admission. See id. (“A cause

of action has no basis in law if the allegations, taken as true, together with inferences reasonably

drawn from them, do not entitle the claimant to the relief sought.”). Second, the Association argued

that Shumway’s pleadings and exhibits establish that the statute of limitations bars Shumway’s

claim because more than four years has passed since the dispute over the lots arose between

Shumway and the Association.



                                                   2
                After allowing Shumway to amend his pleadings and holding a second hearing, the

trial court signed an order granting the Association’s motion to dismiss and ordering that Shumway

take nothing, that Shumway pay the Association $3,375 in attorney’s fees, see id. R. 91a.7 (providing

that “the court must award the prevailing party on the motion all costs and reasonable and necessary

attorney fees incurred with respect to the challenged cause of action in the trial court”), and that

Shumway would bear all costs of court. The order does not specify the ground or grounds on which

the court granted the motion.

                In four issues on appeal, Shumway contends that the trial court erred in granting the

motion to dismiss on the ground of limitations.2 Shumway states in his appellate brief, “The

Presiding Judge was specific that he ruled to dismiss the case because the statute of limitations has

run . . . . As a result, this appeal only addresses matters pertaining to limitations.” Shumway cites

to the reporter’s record of the second hearing, at which the trial court orally announced, “I’m ruling

that the statute of limitations has run.”

                However, as noted above, the trial court’s order does not specify the court’s reasons

for granting the motion. The court’s written order controls, and we must therefore proceed as though

the court did not specify the grounds on which it ruled. See HB Turbo, L.P. v. Turbonetics Eng’g

& Servs., No. 13-06-00083-CV, 2007 WL 1629949, at *2 (Tex. App.—Corpus Christi June 7, 2007,

pet. denied) (mem. op.) (“Were we to remove HB’s burden of attacking each of the possible grounds


       2
           Shumway represented himself in the trial court and on appeal. We note that, while we
construe pro se pleadings and briefs liberally, we hold pro se litigants to the same standards as
licensed attorneys and require them to comply with applicable laws and rules of procedure. See
Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184–85 (Tex. 1978). To do otherwise would give
pro se litigants an unfair advantage over litigants represented by counsel. See id. at 185.

                                                  3
for granting summary judgment by simply referencing the trial court’s oral pronouncements at the

summary judgment hearing and the hearing on HB’s motion for reconsideration, and assume that the

trial court could not have granted summary judgment on the other grounds, we would effectively be

placing ourselves in the role of the trial court in ruling on the motion for summary judgment.”)

(internal quotation marks omitted); Hyperion Holdings, Inc. v. Texas Dep’t of Hous. & Cmty. Affairs,

No. 03-05-00563-CV, 2006 WL 367141, at *3 (Tex. App.—Austin Feb. 16, 2006, no pet.) (mem.

op.) (“Although the district court’s initial, oral ruling was based on the 30-day limitations issue, its

subsequent, written order did not specify a ground for the denial. A district court’s written judgment

or order controls over its oral pronouncement.”) (citation omitted); Bush v. Coleman Powermate,

Inc., No. 03-04-00196-CV, 2005 WL 1241075, at *8 (Tex. App.—Austin May 26, 2005, no pet.)

(mem. op.) (“The finding in the e-mail ‘order’ is not binding. It is not the formal order granting

summary judgment to which we must look for the court’s reasons for ruling.”); Strather v. Dolgencorp

of Tex., Inc., 96 S.W.3d 420, 426 (Tex. App.—Texarkana 2002, no pet.) (“We are constrained,

however, to look only to the order granting summary judgment to determine the trial court’s reasons

for ruling. That rule has a fairly sound policy basis in that it gives litigants and appellate courts a

single place to look to determine why the trial court granted summary judgment.”) (citation omitted).

                As one of our sister courts has explained, when the trial court does not specify upon

what ground it relied, a party appealing the grant of a motion to dismiss under Rule 91a must

challenge every ground upon which the trial court could have granted the motion:


        Given that an appellant generally has the burden to illustrate on appeal that the trial
        court erred, and that an appellate court cannot reverse a judgment in a civil matter on
        grounds the appellant failed to raise, it is appropriate to impose upon an appellant
        attacking a dismissal under Rule 91a the same obligation as one attacking a summary

                                                   4
        judgment when the trial court fails to mention a particular ground on which it relied.
        In each situation, he must negate the validity of each ground upon which the trial
        court could have relied. If he fails to address any particular ground, we must uphold
        the [order] on the unchallenged ground.”


Parkhurst v. Office of Attorney Gen. of Tex., 481 S.W.3d 400, 402 (Tex. App.—Amarillo 2015, no

pet.) (citations and internal quotation marks omitted); see Blizzard v. Select Portfolio Servicing,

No. 03-13-00716-CV, 2015 WL 5096710, at *4 (Tex. App.—Austin Aug. 27, 2015, no pet.) (mem.

op.) (“If the appellant does not challenge each possible ground for summary judgment, we must

uphold the summary judgment on the unchallenged ground.”) (citing Adams v. First Nat’l Bank of

Bells/Savoy, 154 S.W.3d 859, 875 (Tex. App.—Dallas 2005, no pet.)).

                Although Shumway argues on appeal that the trial court should not have granted

the motion to dismiss on the ground of limitations, he does not challenge the motion’s other

ground—that Shumway’s pleadings demonstrate that Shumway is not entitled to the relief he seeks

because they conclusively establish that his lots are restricted solely to residential use.3 See Guillory

v. Seaton, LLC, 470 S.W.3d 237, 240 (Tex. App.—Houston [1st Dist.] 2015, pet. denied) (noting that

cause of action has no basis in law under Rule 91a if “the petition alleges additional facts that, if

true, bar recovery”). Because Shumway has not challenged every ground upon which the trial court

could have relied when granting the motion to dismiss, we must affirm the trial court’s decision on

the unchallenged ground. See Parkhurst, 481 S.W.3d at 402; Blizzard, 2015 WL 5096710, at *4.



        3
          The Association does address this other ground in its appellate brief, arguing, “In all three
pleadings, Appellant states that the recorded plat does not designate his tracts for business purposes.
Given that no document states that the property may be used for business purposes, Appellant cannot
receive the relief that he sought—a declaration that he has the right to use the property for business
purposes. Thus, the trial court did not err when granting the Motion to Dismiss.” (citations omitted).

                                                   5
                                       CONCLUSION

              We affirm the trial court’s order granting the Association’s motion to dismiss.



                                            __________________________________________

                                            Scott K. Field, Justice

Before Chief Justice Rose, Justices Pemberton and Field

Affirmed

Filed: August 16, 2016




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