

                                                             11th
Court of Appeals
                                                                  Eastland,
Texas
                                                                        Opinion
 
Cottonwood Valley Home
Owners Association
Appellant
Vs.                   No.  11-01-00012-CV B Appeal from Dallas County
Samuel W. Hudson, III
Appellee
 
This is a
default judgment case. Cottonwood Valley Home Owners Association (the
Association) sued Samuel W. Hudson, III for nonpayment of homeowners= assessments.  Although he received citation, Hudson, a lawyer, failed to appear
or file an answer, and default judgment was granted in favor of the
Association.  We modify and affirm.
On May 18,
2000, the Association sued  Hudson to
collect unpaid homeowners= assessments.  Hudson owned
property located at 1217 Travis Circle South in Irving.  The property is part of Cottonwood Valley
Addition, a development subject to homeowners=assessments as stated in a Declaration filed in the deed of
records.  The Declaration provides for
recovery of interest, collection costs, attorney fees, and expenses in
collecting delinquent assessments.[1]





On
November 2, 1998, Hudson was notified by certified mail that he owed a total of
$1,540.24 to the Association based on his failure to pay assessments.  The Association filed a notice of lien, and
a letter was sent to Hudson on March 26, 1999, notifying him that the notice of
lien would be filed.  Another demand
letter was sent to Hudson on August 6, 1999. 
By August 2000, Hudson owed a total of $5,411.45 to the Association for
past due assessments, interest charges, and costs advanced by the law firm attempting
to collect the debt. 
Default
judgment was granted in favor of the Association.  The judgment granted  the
amount represented to be due and owing to the Association in the judgment and
attorney fees.  The judgment did not
provide for foreclosure on the assessment lien.  The Association filed a motion to modify the judgment, asking the
court to grant foreclosure on the assessment lien against Hudson=s property. 
The motion to modify was overruled by operation of law.  The Association appeals.
The Association
presents the following issues for review: (1) is a mandatory homeowners= association entitled to judicial foreclosure
on a duly-recorded assessment lien securing a homeowner=s assessment obligation to the Association
and (2) when a mandatory homeowners= association requests judicial foreclosure on an assessment lien as
part of a default judgment, does the trial court have the discretion to deny
the relief of foreclosure?
The
standard of review is abuse of discretion. 
A trial court abuses its discretion if its decision is arbitrary,
unreasonable, and without any reference to any guiding rules or
principles.  Goode v. Shoukfeh, 943
S.W.2d 441, 446 (Tex.1997).
As an
inherent part of the property interest, the purchase of a lot in a subdivision
with deed restrictions carries the obligation to pay association fees for
maintenance and ownership of common facilities and services.  Inwood North Homeowners= Association v. Harris, 736 S.W.2d 632, 636
(Tex.1987).  The remedy of foreclosure
is an inherent characteristic of that property right.  Inwood North Homeowners= Association v. Harris, supra at 636.




In the Inwood
case, the court noted that, while the remedy of foreclosure may seem harsh
especially when a small sum is due, the court is bound to enforce the
agreements the homeowners enter into concerning the payment of assessments. The
court in Inwood found that the homeowners= association is entitled to foreclose on homesteads of owners who have
not paid their homeowners= assessments.  Even more so, the
Association must be entitled to foreclose when the property does not have the
homestead protections.
We find
that the trial court abused its discretion when it did not grant the
Association=s foreclosure of its lien.  The Association=s issues are sustained.
We now
turn our attention to Hudson=s jurisdictional argument. 
Hudson did not appeal the judgment of the trial court and did not
initially file a brief in this action. 
Hudson was notified in writing and by telephone of the setting of this
case and personally appeared for oral argument.  Hudson acknowledged in open court that he had received this court=s request for a brief and notice of setting.
At
submission before this court, Hudson acknowledged that he had been served with
citation in this case.  Hudson stated
that he did not respond because he had filed for Chapter 13 bankruptcy and
believed the trial court=s action to have been stayed.  
Hudson was not aware of the trial court setting and did not appear.
Hudson
stated in open court that his bankruptcy proceedings had been voluntarily
dismissed.  Although requested by this
court, Hudson has furnished neither his filing in bankruptcy nor his dismissal.  Additionally, this court requested and gave
Hudson an opportunity to file an appellee=s brief.  Hudson=s brief addresses a single issue not raised
in the Association=s
brief. 
Hudson has
not attacked the no-answer default judgment under the usual posture.  Craddock v. Sunshine Bus Lines, 133 S.W.2d
124 (Tex.1939); American Commercial Colleges, Inc. v. Davis, 821 S.W.2d 450
(Tex.App. - Eastland 1991, writ den=d).  Rather, Hudson urges that
the Association=s motion to modify was not timely filed and that
this court is without jurisdiction to hear this appeal.  
The
judgment was signed on August 18, 2000, and the motion to modify was due to be
filed on or before September 18, 2000. 
TEX.R.APP.P. 26.1(a)(1).  The
motion was file marked ASeptember 19, 2000.@  Relying on the case of
Carpenter v. Town and Country Bank, 806 S.W.2d 959 (Tex.App. - Eastland 1991,
writ den=d), Hudson contends that the motion to modify
is untimely because it was delivered by private courier.  However, the present case is factually
distinguishable.




The
Association has established through the affidavits of its counsel and of the
individual courier and by the accompanying courier-delivery receipt  that the motion was actually delivered to
the clerk of the trial court on the September 18 due date.  The date an instrument is tendered to the
clerk controls even over the file stamp on the document.  Coastal Banc v. Helle, 988 S.W.2d 214, 216
(Tex.1999); see also Mr. Penguin Tuxedo Rental & Sales, Inc. v. NCR
Corporation, 787 S.W.2d 371 (Tex.1990). 
Hudson=s sole issue is overruled.
The trial
court=s judgment is modified to add the following: 
It is
further ORDERED, ADJUDGED and DECREED that Plaintiff Cottonwood Valley Home
Owners Association shall have foreclosure of a lien on the following described
property:
 
Lot 5,
Block 3 of Sector VII Cottonwood Valley, Phase I, Area XV, an Addition to the
City of Irving, Dallas County, Texas, recorded in Volume 79110, Page 1848 of
the Map Records, Dallas County, Texas, together with Consent to Certificate of
Correction and Acceptance of Corrected Preliminary Final Plat-Revised filed
January 24, 1980, recorded in Volume 80017, Page 1 of the Deed Records, Dallas
County, Texas commonly known as 1217 Travis Circle South, Irving, Texas.  The lien is set forth in the Corrected
Declaration for Cottonwood Valley Area XV field of record at Volume 80038, Page
1192 et seq. of the Deed Records, Dallas County, Texas. 
 
IT IS
FURTHER ORDERED by the Court that an order of sale shall issue to any sheriff
or constable in the State of Texas, to seize and sell the above-described
property the same as under execution in satisfaction of this judgment.  The sheriff or other officer executing the
order of sale shall place the purchaser of the above-described property in
possession within 30 days after the day of sale.  The order of sale shall have the same force and effect as that of
a writ of possession between the parties in this action and any person claiming
under the defendant by any right acquired pending this action.
 
As modified, the judgment
of the trial court is affirmed.
 
W. G.
ARNOT, III
CHIEF
JUSTICE
March 28, 2002 
Publish.  See TEX.R.APP.P. 47.3(b).
Panel consists of: Arnot, C.J., and
Wright, J., and McCall, J.




[1]Article 3, section1 of the Declaration filed with the
deed of records provides:
 
The Declarant for each lot, tract, or parcel of land
owned by it within The Properties, hereby covenants, and each purchaser of any
such lot, tract or parcel of land by acceptance of a deed therefor, whether or
not it shall be so expressed in any such deed or other conveyance, shall be
deemed to covenant to pay to the Association: (1) annual assessments or charges
(as specified in Section 3 hereof); (2) special assessments for capital
improvements (as specified in Section 4 hereof), all of such assessments to be fixed,
established, and collected from time to time as hereinafter provided.  
 
Additionally, Article 3, section 3 provides: 
 
Each owner of any part of The Properties shall pay to
the Association an annual assessment of sixty cents (0.604) per one hundred dollars ($100.00) of value of that
portion of The Properties so owned, as assessed by the City of Irving, Texas,
for ad valorem tax purposes for the preceding year.  The rate of annual assessment may be increased by a vote of the
membership of the Association, as provided in Section 5 hereof.  The Board of Directors of the Association
may, after consideration of current maintenance costs and future needs of the
Association, fix the actual assessment for any year at a lesser amount.
 
Article 3, section 7 provides: 
 
The first
annual assessment provided for herein shall commence with the year 1980 and
shall continue thereafter from year to year. 


