Opinion issued August 30, 2012




                                   In The

                            Court of Appeals
                                  For The

                        First District of Texas
                        ————————————
                            NO. 01-11-00752-CV
                         ———————————
                          JEFF BURNS, Appellant
                                     V.
   THE SEASCAPE OWNERS ASSOCIATION, INC., JOHN PRUETZ,
  BRETT PHILLIPS, JULIAN ECHOLS, TOM BRUNE, RON BENOTTI,
     AND BILL ETHEREDGE D/B/A ETHEREDGE PROPERTY
                   MANAGEMENT, Appellees


                  On Appeal from the 212th District Court
                         Galveston County, Texas
                     Trial Court Case No. 10-CV-0244



                        MEMORANDUM OPINION

     Appellant Jeff Burns challenges the summary judgment rendered against

him in favor of appellees The Seascape Owners Association, Inc., John Pruetz,
Brett Phillips, Julian Echols, Tom Brune, Ron Benotti, and Bill Etheredge d/b/a

Etheredge Property Management. The judgment (1) dismisses Burns’s claims

against appellees with prejudice and (2) awards The Seascape Owners Association,

Inc., (“Seascape”) damages and attorney’s fees on its counter-claim against Burns.

Burns challenges the judgment in five issues. Seascape has filed a motion to

dismiss Burns’s challenge to the portion of the judgment awarding Seascape

damages and attorney’s fees.

        We affirm, in part, reverse and remand, in part, and dismiss the appeal, in

part.

                               Background Summary

        Jeff Burns owned a condominium unit in the Seascape Condominiums

project, which is located on Galveston Island.      The condominium building in

which Burns’s condominium unit is located was damaged by Hurricane Ike.

Seascape, the condominium owners’ association, is responsible for managing and

maintaining the common elements of the building.         Following the hurricane,

Seascape hired Hudak & Dawson, a construction company, to assist with repairing

the building. During the repair process, Hudak & Dawson demolished parts of the

building, including portions of Burns’s condominium unit.

        On June 15, 2010, Burns filed suit against (1) Seascape; (2) the individual

members of its Board of Directors, John Pruetz, Brett Phillips, Julian Echols, Tom

                                         2
Brune, and Ron Benotti (“the Directors”); (3) the property manager hired by

Seascape, Bill Etheredge d/b/a Etheredge Property Management (“Etheredge”);

and (4) the construction company, Hudak & Dawson. Burns alleged that Seascape,

the Directors, and Etheredge had instructed and permitted Hudak & Dawson to

enter his condominium and “substantially demolish the interior thereof.” Burns

acknowledged that “[Seascape] is charged with maintenance and oversight of

certain portions of the condominium project” but contended that “this

responsibility does not extend to the interior and furnishings of [Burns’s]

condominium.”

      Burns asserted, inter alia, that the defendants had failed to properly assess

the extent of the damage to his condominium, had not obtained proper

authorization before entering his unit—thereby “exceeding the scope of whatever

limited right of entry they may have possessed”—and had not properly secured and

preserved his property.    Burns asserted causes of action for negligence and

trespass.   He requested damages for “destruction of his personal property,

diminished value and cost of repairs to the condominium, and loss of rental

income.”

      Seascape, the Directors, and Etheredge (collectively “appellees”) answered

the suit, asserting a general denial and a number of affirmative defenses, including




                                         3
consent. Seascape also counter-claimed against Burns (1) for non-payment of

monthly condominium maintenance assessments and (2) for attorney’s fees.

      Appellees moved for summary judgment, seeking dismissal of Burns’s

claims.   Appellees asserted that they were entitled to summary judgment on

Burns’s trespass claim based on the affirmative defense of consent. Appellees also

asserted that they were entitled to summary judgment with respect to Burns’s

negligence claim based on a provision in the condominium project’s bylaws.

      The Directors also filed a no-evidence motion for summary judgment. They

asserted, “Under the Texas Business Organizations Code § 22.221, a director of a

non-profit corporation is not liable for any act undertaken in good faith for the

benefit of the organization.”     They argued, “There is no evidence that the

individual Directors failed to act in good faith, failed to act with ordinary care, or

failed to act in a manner the Directors reasonably believed to be in the best interest

of the corporation.”

      In addition, Seascape sought summary judgment on its counter-claim against

Burns for unpaid monthly condominium assessments and for attorney’s fees.

Seascape offered the affidavit of its accounts manager. The manager testified that

Burns owed $10,348.63 in past due condominium maintenance assessments.




                                          4
      Seascape also offered the affidavit of the attorney representing it in the

lawsuit. He testified that Seascape had incurred $11,060.55 in defending and in

prosecuting the suit.

      After the defendants filed the traditional motion for summary judgment,

Burns amended his petition to include a claim for breach of fiduciary duty against

Seascape.     Burns filed a response to the motion for summary judgment, and

appellees filed a reply to the response. In the reply, appellees addressed Burns’s

breach of fiduciary duty claim, which had been added by Burns in his amended

petition.

      The trial court granted the defendants’ traditional motion for summary

judgment on Burns’s claims. The trial court dismissed Seascape, the Directors,

and Etheredge from the suit “with prejudice.” It also granted the Directors’ no

evidence motion for summary judgment.        In addition, the trial court granted

Seascape’s motion for summary judgment on its counter-claims against Burns.

The trial court awarded Seascape $10,348.63 for unpaid monthly maintenance

assessments. It also awarded Seascape $11,060.55 in attorney’s fees pursuant to

Civil Practice and Remedies Code section 38.001. Thereafter, Burns dismissed his

claims against Hudak & Dawson with prejudice, making the judgment final and

appealable.




                                        5
      Burns now appeals. He presents five issues. In his first two issues and in

his fourth issue, Burns asserts that the trial court erred when it granted appellees’

traditional motion for summary judgment regarding his claims for trespass,

negligence, and breach of fiduciary. In his third issue, Burns contends that the trial

court improperly granted the Board of Directors’ no-evidence summary judgment.

Lastly, in his fifth issue, Burns asserts that the trial court erred by granting

Seascape’s motion for summary judgment on its counter-claim against him and

awarding Seascape $10,348.63 for unpaid maintenance fees assessments and

$11,060.55 in attorney’s fees.

                   Traditional Motion for Summary Judgment

      In his first, second, and fourth issues, Burns challenges the trial court’s order

granting appellees’ traditional motion for summary judgment on his claims.

A.    Standard of Review

      To prevail on a traditional Rule 166a(c) summary judgment motion, a

movant must prove that there is no genuine issue regarding any material fact and

that it is entitled to judgment as a matter of law. See TEX. R. CIV. P. 166a(c); Little

v. Tex. Dep’t of Criminal Justice, 148 S.W.3d 374, 381 (Tex. 2004). A defendant

moving for summary judgment must either (1) disprove at least one element of the

plaintiff’s cause of action or (2) plead and conclusively establish each essential

element of an affirmative defense to rebut the plaintiff’s cause. Cathey v. Booth,

                                          6
900 S.W.2d 339, 341 (Tex. 1995). The movant must conclusively establish its

right to judgment as a matter of law. See MMP, Ltd. v. Jones, 710 S.W.2d 59, 60

(Tex. 1986). A matter is conclusively established if reasonable people could not

differ as to the conclusion to be drawn from the evidence. See City of Keller v.

Wilson, 168 S.W.3d 802, 816 (Tex. 2005).

      If the movant meets its burden, the burden then shifts to the nonmovant to

raise a genuine issue of material fact precluding summary judgment. See Centeq

Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). The evidence raises a

genuine issue of fact if reasonable and fair-minded jurors could differ in their

conclusions in light of all of the summary judgment evidence. Goodyear Tire &

Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007).

      On appeal, we review de novo a trial court’s summary judgment ruling. See

Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848

(Tex. 2009).   In our review, we consider all the evidence in the light most

favorable to the nonmovant, crediting evidence favorable to the nonmovant if

reasonable jurors could, and disregarding contrary evidence unless reasonable

jurors could not. See Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex.

2006). When, as here, the trial court’s order granting summary judgment does not

specify the grounds on which it was granted, it must be affirmed if any of the




                                       7
grounds asserted are meritorious. W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550

(Tex. 2005).

B.    Trespass Claim

      In his first issue, Burns asserts that the trial court erred by rendering

summary judgment on his trespass claim.       Trespass occurs when a person enters

another’s land without consent. Wilen v. Falkenstein, 191 S.W.3d 791, 797 (Tex.

App.—Fort Worth 2006, pet. denied). A plaintiff must prove that (1) he owns or

has a lawful right to possess real property, (2) the defendant entered the land and

the entry was physical, intentional, and voluntary, and (3) the defendant’s trespass

caused injury. Id. at 798. Actual or apparent consent to enter the property is an

affirmative defense to a cause of action for trespass. Gen. Mills Rests., Inc. v. Tex.

Wings, Inc., 12 S.W.3d 827, 835 (Tex. App.—Dallas 2000, no pet.) (citing Carr v.

Mobile Video Tapes, Inc., 893 S.W.2d 613, 623 (Tex. App.—Corpus Christi 1994,

no writ)).

      In the motion for summary judgment, appellees asserted that they were

entitled to summary judgment on Burns’s trespass claim because he had, under the

circumstances, consented to entry into his condominium.          Seascape relied on

Article 6.1 of the Condominium Declaration, which provides that, upon

“destruction, obsolescence or condemnation” of the Property, Seascape becomes

the attorney-in-fact of the condominium owner authorized to enter into contracts

                                          8
necessary “to deal with” destruction to the Property. The Declaration defines “the

Property” to be “the land, the buildings and all improvements and structures

therein and all rights, easements and appurtenances belonging thereto.”

      Specifically, Article 6.1 also provides,

      As Attorney-in-Fact, the Association by its authorized officers shall
      have full and complete authorization, right of power to make, execute
      and deliver any contract, deed or any other instrument with respect to
      the interest of a Condominium Unit Owner which is necessary and
      appropriate to exercise the powers herein granted.

      Appellees contend that the Article 6.1 provided it with consent to allow the

construction company to enter Burns’s unit, thereby defeating the trespass claim.

Seascape asserted that this provision was triggered as a result of the hurricane

damage to the Property.

      In support of this assertion, appellees offered the Directors’ individual

affidavits and the affidavit of property manager Etheredge. The affiants averred

that each was “personally aware of the activity conducted by the Association and

the Board [of Directors] with the reconstruction and repair of Seascape

Condominiums (the “Property”) including Jeff Burns’ unit, #1119 due to damage

sustained from Hurricane Ike.”       Each testified that Seascape condominiums

“received extensive damage from Hurricane Ike, [and] the power, water, fire

protection, elevator and all other building systems were inoperable after the storm

and remained inoperable for many months pending repair and reconstruction.”

                                          9
Each testified, “Many windows were broken, sections of the buildings’ skin were

blown off and the roof was totally destroyed. These breaches in the buildings’

exterior allowed massive amounts of water to enter the buildings, including the

building where Burns’ unit is located. No units in this building escaped damage.”

      The affiants averred that the total damage to the condominium property was

over $9 million. The affiants explained that the “[t]he Declaration requires the

Directors to reconstruct, repair and otherwise return the Property to its pre-disaster

status.”

      We agree with appellees that the affidavits show that the Property—meaning

the condominium property as a whole—(including Burns’s condominium building)

suffered destruction from the hurricane, thereby establishing the application of

Article 6.1. As a result, under Article 6.1, Seascape became the attorney-in-fact of

the condominium owners to effectuate the repairs to the Property. Pursuant to the

provision, Seascape was authorized to enter into repair contracts to remedy the

destruction of the Property.     This necessarily included the right to enter a

condominium unit to effectuate repairs to the Property. Thus, appellees met their

summary judgment burden to conclusively establish that they had consent to

permit the construction company to enter Burns’s condominium unit. The burden

then shifted to Burns to raise a genuine issue of material fact precluding summary

judgment.

                                         10
      In his response, Burns asserted that Article 6.1 did not provide appellees

with consent to enter his condominium to make repairs under the facts of this case.

He acknowledged that the article provides for the appointment of Seascape as

attorney in fact “in the event of destruction, obsolescence, or condemnation” of the

Property. He does not dispute that, if triggered, Article 6.1 gives Seascape consent

to enter his condominium unit to carry out its duties to repair and to restore the

Property.

      Instead, Burns contends that there was no destruction or obsolescence to his

condominium unit to trigger the application of Article 6.1. Burns points out that

the appointment of Seascape as attorney-in-fact “is limited to making those

contracts ‘necessary and appropriate to exercise the powers’ to ‘restoring the

improvement(s) to substantially the same condition in existence prior to the

damage.’” He asserts that appellees “failed to perform any repairs to or restoration

of the property.”

      Burns offered his own affidavit and that of his wife, Mitzi Burns, who is co-

owner of the condominium unit. In her affidavit, Mitzi Burns testified, in part,

      I have personal knowledge of the condition of Unit 1119 prior to
      Hurricane Ike and personally inspected the unit together with an
      insurance adjuster the week following Hurricane Ike. There was no
      destruction or obsolescence of the condominium either prior to or
      following Hurricane Ike. Following the hurricane, the windows and
      doors were intact, the ceiling was dry and intact, the floors were dry
      and there was no damage found. The common elements attached to
      the unit, namely the balcony and railings, were intact and not in need
                                         11
      of maintenance. No utilities were leaking or damaged that might
      cause damage to adjacent units. Nothing was found in the unit that
      would constitute any emergency requiring subsequent entry by
      Seascape to prevent damage to the common elements or any other
      units.

      Burns’s summary judgment evidence may raise an issue of material fact with

respect to whether his unit suffered damage but it does not raise an issue of

material fact with respect to whether “the Property” suffered destruction. Under

Article 6.1, this is the relevant inquiry. As stated, the declaration defines “the

Property” to mean “the land, the buildings and all improvements and structures

therein and all rights, easements and appurtenances belonging thereto.” It is not

limited to Burns’s condominium unit nor does it require a showing that a specific

unit suffered damage. Burns offered no evidence to show that the “the Property”

had not suffered damage and destruction from the storm.

      Burns also asserts that there was no consent because appellees failed to

perform any repairs to or restoration of his property. Whether Seascape ultimately

accomplished the restoration is not relevant to whether it initially had consent to

enter Burns’s unit.




                                        12
      We conclude that appellees established, as a matter of law, their affirmative

defense of consent.     We hold that the trial court properly granted summary

judgment in favor of appellees on Burns’s trespass claim.1

      We overrule Burns’s first issue.

C.    Negligence Claim

      In his second issue, Burns asserts that the trial court erred by granting

appellees’ motion for summary judgment on his negligence claim. A negligence

claim consists of three essential elements: (1) a legal duty owed by one person to

another, (2) a breach of that duty, and (3) damages proximately resulting from that

breach. Greater Hous. Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990).

      With respect to Burns’s negligence claim, appellees relied on Section 9.2 of

the condominium by-laws to establish that it was entitled to summary judgment.

That section provides, in relevant part, as follows:

      Storm Damage During a hiatus required by the Texas General Land
      Office after a storm, any action taken by the Board of Directors to
      promote safety and to mitigate further damage at the Condominium
      shall be presumed to be reasonable and done in good faith, and the

1
      Although not clear, appellees appear to argue that the consent derived from Article
      6.1 also supports summary judgment on Burns’s negligence claim. However, it is
      not clear from appellees’ motion for summary judgment which element of Burns’s
      negligence claim would be defeated by the application of this provision.
      Moreover, Burns’s negligence claim is premised, at least in part, on the alleged
      damage that was done to his personal property as a result of improper and careless
      work by the contractor after entry into his condominium. Thus, appellees, have
      not shown how granting consent to enter the unit and to conduct repairs negates
      Burns’s negligence claim.
                                          13
      members of the Board of Directors and the council’s management
      company and its owner shall be harmless and immune from
      litigation . . . .

      In their motion for summary judgment, appellees asserted, “By expressly

consenting to the terms of the Seascape Declaration and By-Laws, Burns

consented to the presumption contained in the above section of the Seascape By-

Laws.” They further averred, “The presumption that the Directors’s actions taken

after Hurricane Ike were ‘reasonable and done in good faith’ conclusively negates

the breach of duty element of Burns’s negligence cause of action.”

      In his summary judgment response, Burns points out that, by its own

language, Section 9.2’s application is limited to the period “[d]uring a hiatus

required by the Texas General Land Office after a storm.” The phrase is not

defined in the by-laws; nor did appellees offer summary judgment evidence to

show that their actions taken to repair and to restore the Property occurred

“[d]uring a hiatus required by the Texas General Land Office after a storm.” For

this reason, we agree with Burns that appellees failed to establish that Section 9.2

applies. Appellees offered no other ground to defeat Burns’s negligence claim.

      We conclude that appellees failed to meet their summary judgment burden

with respect to Burns’s negligence claim. We hold that the trial court erred by

granting appellees’ traditional motion for summary judgment on that claim.

      We sustain Burns’s second issue.

                                         14
D.    Breach of Fiduciary Duty Claim

      In his fourth issue, Burns contends that the trial court erred by granting

summary judgment on his breach of fiduciary duty claim against Seascape. Burns

added that claim by amending his petition after appellees had filed their motion for

summary judgment. The amended petition was filed on September 14, 2010. The

record reflects that the hearing on the motion for summary judgment was set for

September 16, 2010. The question arises whether Burns’s breach of fiduciary duty

claim was included in the trial court’s order granting summary judgment on

Burns’s claims.

      If an amended petition is filed within seven days of the summary judgment

hearing but before the hearing, leave of court is required. Mensa-Wilmot v. Smith

Int’l, Inc., 312 S.W.3d 771, 778 (Tex. App.—Houston [1st Dist.] 2009, no pet.);

Houtex Ready Mix Concrete & Materials v. Eagle Constr. & Envtl. Servs., L.P.,

226 S.W.3d 514, 520 (Tex. App.—Houston [1st Dist.] 2006, no pet.).

Nonetheless, when a party files an amended pleading within seven days of trial, we

presume the trial court granted leave for the late filing when the summary

judgment states that the court considered all of the pleadings, the record does not

indicate that the court did not consider the amended pleading, and the opposing

party does not show surprise. Goswami v. Metro. Sav. & Loan Ass’n, 751 S.W.2d




                                        15
487, 490 (Tex. 1988); see Cont’l Airlines, Inc. v. Kiefer, 920 S.W.2d 274, 276

(Tex. 1996).

      Here, Burns filed his amended petition, adding the breach of fiduciary duty

claim, within seven days of the hearing on appellees’ motion for summary

judgment. However, there is no indication in the record that the trial court did not

consider Burns’s amended petition. To the contrary, the trial court’s October 27,

2010 order granting appellees’ motion for summary judgment on Burns’s claims

recites, “Having considered the pleadings and all evidence, the Court finds the

motion is meritorious and should be granted.” The order also provides that Burns

takes nothing by his “claims alleged in Plaintiff’s Petition” against appellees.

      Further, appellees did not indicate that the lateness caused them undue

surprise, nor did they request the court to exclude the amended pleading. We

presume Burns filed his amended petition with leave of court. See Goswami, 751

S.W.2d at 490; see also Cont’l Airlines, 920 S.W.2d at 276. As a result, the

amended petition was the live pleading when the trial court granted summary

judgment on Burns’s claims. See MacFarlane v. Burke, No. 01–10–00409–CV,

2011 WL 2503937, at *4, (Tex. App.—Houston [1st Dist.] June 23, 2011, no pet.)

(mem. op.). Thus, the trial court granted summary judgment on Burns’s breach of

fiduciary duty claim.




                                          16
      On appeal, Burns contends that summary judgment on his breach of

fiduciary duty claim was not proper because it was not addressed by apellees in a

motion for summary judgment. Burns is correct that appellees did not amend their

motion to address the claim. Instead, appellees chose to attack the claim in their

September 20, 2010 reply to Burns’s response to their motion for summary

judgment. A reply is not a motion for summary judgment. Reliance Ins. Co. v.

Hibdon, 333 S.W.3d 364, 378 (Tex. App.—Houston [14th Dist.] 2011, pet.

denied). A movant is not entitled to use its reply to amend its motion for summary

judgment or to raise new and independent summary judgment grounds. Id.; see

also Garcia v. Garza, 311 S.W.3d 28, 36 (Tex. App.—San Antonio 2010, pet.

denied). A motion for summary judgment must stand or fall on the grounds

expressly presented in the motion. Reliance Ins. Co., 333 S.W.3d at 378 (citing

McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993)).

Thus, we hold that the trial court erred in rendering summary judgment against

Burns on his breach of fiduciary duty claim.

      We sustain Burns’s fourth issue.

                       No-Evidence Summary Judgment

      In his third issue, Burns contends that the trial court improperly granted a

no-evidence summary judgment to the individual members of Seascape’s Board of

Directors: John Pruetz, Brett Phillips, Julian Echols, Tom Brune, and Ron Benotti

                                         17
based on the statutory protection afforded by section 22.221 of Business

Organizations Code.2 See TEX. BUS. ORGS. CODE ANN. § 22.221 (Vernon 2011).

A.    Standard of Review: No-Evidence Motion for Summary Judgment

      After an adequate time for discovery, the party without the burden of proof

may move for a no-evidence summary judgment on the basis that there is no

evidence to support an essential element of the non-moving party’s claim. TEX. R.

CIV. P. 166a(i); see Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008).

Summary judgment must be granted unless the non-movant produces competent

summary judgment evidence raising a genuine issue of material fact on the

challenged elements. TEX. R. CIV. P. 166a(i); Hamilton, 249 S.W.3d at 426. A

non-moving party is “not required to marshal its proof; its response need only point

out evidence that raises a fact issue on the challenged elements.” TEX. R. CIV. P.

166a (Notes & Comments 1997).




2
      The trial court’s order grants a no-evidence motion for summary judgment in favor
      of not only the individual directors, but also in favor of Seascape and Etheredge.
      However, a reading of the no-evidence motion for summary judgment indicates
      that it was asserted only on behalf of the directors. Moreover, pursuant to the
      plain language of the statute, section 22.221 of Business Organizations Code
      applies only to an action taken against a director of a non-profit corporation. See
      TEX. BUS. ORGS. CODE ANN. § 22.221 (Vernon Supp. 2011). In their brief,
      appellees agree that the no-evidence summary judgment applies only to Burns’s
      claims against the directors in their individual capacities.
                                          18
B.    Adequate Time for Discovery

      Pursuant to Rule of Civil Procedure 166a(i), a party may not move for a no-

evidence summary judgment until after an adequate time for discovery has passed.

TEX. R. CIV. P. 166a(i). Burns asserts that the trial court erred in granting the no-

evidence motion for summary judgment because the Directors moved for summary

judgment before an adequate time for discovery had passed.

      Burns argues that there had not been adequate time for discovery because

the discovery period had not ended when the Directors filed their no-evidence

motion for summary judgment. Rule of Civil Procedure 190.3 provides that the

discovery period begins when the suit is filed and ends the earlier of thirty days

before trial or nine months after the earlier of the date of the first oral deposition or

the due date of the first response to written discovery.          See TEX. R. CIV. P.

190.3(b)(1)(B)(i) & (ii). The record reflects that Burns filed suit in January 2010,

and the Directors filed the no-evidence motion for summary judgment in August

2010. It is also undisputed that Burns and the Directors had not exchanged written

discovery nor had any depositions been taken. The trial court granted the no-

evidence motion for summary judgment in November 2010.

      The comment to Rule 166a states that “ordinarily a motion under paragraph

(i) would be permitted after the [discovery] period but not before.” TEX. R. CIV. P.

166a(i), cmt.—1997. Nonetheless, a party who contends that there has not been

                                           19
adequate time for discovery must file either an affidavit explaining the need for

further discovery or a verified motion for continuance.         See Tenneco, Inc. v.

Enterprise Prods. Co., 925 S.W.2d 640, 647 (Tex. 1996); Rad v. Calbeck, No. 03–

10–00429–CV, 2011 WL 6938520, at *4 (Tex. App.—Austin Dec. 30, 2011, no

pet.) (mem. op.); see also TEX. R. CIV. P. 251, 252. Burns did not file an affidavit

explaining the need for further discovery.           Burns included a request for

continuance in his response to the summary judgment motion, but it was not

verified. As a result, we conclude Burns waived any argument that the Directors’

motion was premature.3 See Rad, 2011 WL 6938520, at *4; Guerrero v. Mem’l

Turkey Creek, Ltd., No. 01–09–00237–CV, 2011 WL 3820841, at *4 (Tex. App.—

Houston [1st Dist.] Aug. 25, 2011, no pet.) (mem. op.); Flores v. Flores, 225

S.W.3d 651, 654–55 (Tex. App.—El Paso 2006, pet. denied); see also Tenneco,

925 S.W.2d at 647.




3
      In any event, by granting the Directors’ no-evidence motion for summary
      judgment, the trial court implicitly denied Burns’s request for a continuance
      contained in his summary judgment response. See W.W. Webber, L.L.C. v. Harris
      County Toll Road Auth., 324 S.W.3d 877, 880 n.1 (Tex. App.—Houston [14th
      Dist.] 2010, no pet.) (citing TEX. R. APP. P. 33.1(a)(2)(A); In re A.D.A., 287
      S.W.3d 382, 387 (Tex. App.—Texarkana 2009, no pet.)). We must presume that a
      trial court does not abuse its discretion in denying a motion for continuance when
      the motion is not verified or supported by affidavit. Emanuel v. Citibank (South
      Dakota), N.A., No. 01–10–00768–CV, 2011 WL 5429042, at *2 (Tex. App.—
      Houston [1st Dist.] Nov. 10, 2011, no pet.).
                                          20
C.    Safe Harbor Provision

      Section 22.221 of Business Organizations Code contains a “safe harbor”

provision for directors of non-profit corporations, such as Seascape’s directors.

See Priddy v. Rawson, 282 S.W.3d 588, 594 (Tex. App.—Houston [14th Dist.]

2009, pet. denied) (discussing article 1396–2.28 of the Business Corporations Act,

now recodified at section 22.221 of the Business Organizations Code, without

substantive changes and defining provision as a safe harbor provision). Section

22.211 provides as follows:

      (a) A director shall discharge the director’s duties, including duties as
      a committee member, in good faith, with ordinary care, and in a
      manner the director reasonably believes to be in the best interest of the
      corporation.

      (b) A director is not liable to the corporation, a member, or another
      person for an action taken or not taken as a director if the director
      acted in compliance with this section. A person seeking to establish
      liability of a director must prove that the director did not act:

      (1) in good faith;

      (2) with ordinary care; and

      (3) in a manner the director reasonably believed to be in the best
      interest of the corporation.

See TEX. BUS. ORGS. CODE ANN. § 22.221 (Vernon 2011).

      In Priddy, the court held that the safe harbor provision places the burden of

proof on the plaintiff to show that a director of a non-profit corporation did not act

(1) in good faith, (2) with ordinary care, and (3) in a manner he reasonably
                                         21
believed to be in the best interest of the corporation. Priddy, 282 S.W.3d at 594.

Here, in their no-evidence motion for summary judgment, the Directors asserted

that no evidence existed with regard to each of the three safe harbor elements

found in section 22.221. We agree with the court in Priddy that, to survive

summary judgment, Burns had the burden to produce competent summary

judgment evidence showing that a genuine issue of material fact existed with

regard to whether the directors did not act (1) in good faith, (2) with ordinary care,

and (3) in a manner they reasonably believed to be in the best interest of the

corporation. See id.; see also TEX. BUS. ORGS. CODE ANN. § 22.221.

D.    Burns’s Evidence Pertaining to Elements of Safe Harbor Provision

      In his response to the no-evidence motion for summary judgment, Burns

asserted,

      The affidavits of Mitzi Bums and Jeff Burns, submitted under separate
      cover, suggest material questions of fact remain concerning the
      “ordinary care” exercised by the individual Directors members. Both
      Mr. and Mrs. Burns indicate that undamaged property was torn out
      and destroyed and that personal effects were left piled up with no
      protection from damage or theft.

      Burns did not address or point to evidence with regard to the first or third

safe harbor elements; that is, he did not address whether the Directors acted in

good faith, nor did he address whether the Directors members reasonably believed

their conduct was in the best interest of the corporation.


                                          22
      On appeal, Burns contends that he offered evidence in the trial court to show

that the directors did not act with ordinary care or in good faith. Nonetheless, he

does not address, or offer any argument to show, that the Directors did not

reasonably believe that their conduct was in the best interest of the corporation. In

other words, Burns does not address the third element of the safe harbor provision

on appeal. The Directors expressly challenged this element in their no-evidence

motion for summary judgment. Thus, Burns had the burden to offer evidence with

respect to this element.

      When a party moves for summary judgment on multiple grounds and, as

here, the trial court’s order granting summary judgment does not specify the

ground or grounds on which it was based, a party who appeals the order must

negate all possible grounds on which the order could have been based. See Ellis v.

Precision Engine Rebuilders, Inc., 68 S.W.3d 894, 898 (Tex. App.—Houston [1st

Dist.] 2002, no pet.). To make this challenge, the appellant may either assert a

separate issue challenging each possible ground or assert a general issue that the

trial court erred in granting summary judgment, and within that issue, provide

argument negating all possible grounds on which summary judgment could have

been granted. See id.; see also Jarvis v. Rocanville Corp., 298 S.W.3d 305, 313

(Tex. App.—Dallas 2009, pet. denied). If an appellant does not challenge each

possible ground for summary judgment, we must uphold the summary judgment on

                                         23
the unchallenged ground. See Ellis, 68 S.W.3d at 898. Because Burns failed to

challenge the Directors’ no-evidence summary judgment argument that Burns

could produce no evidence in support of the third element of the safe harbor

provision, we must accept the validity of that ground and affirm the no-evidence

summary judgment in favor of the Directors. See Morton v. Kelley, No. 01–09–

00428–CV, 2010 WL4056516, at *5 (Tex. App.—Houston [1st Dist.] Oct. 14,

2010, no pet.) (mem. op.) (affirming no-evidence summary judgment because

appellant failed to address argument that she could not produce evidence with

respect to certain elements of her claims); Wilhite v. Glazer’s Wholesale Drug Co.,

Incorporated/Glazer Family of Companies, 306 S.W.3d 952, 954–55 (Tex. App.—

Dallas 2010, no pet.) (upholding no-evidence summary judgment when appellant

failed to address no-evidence grounds on appeal).

      We hold that the trial court did not err by granting the Directors’ no-

evidence motion for summary judgment. We overrule Burns’s third issue.

              Appeal of Judgment on Seascape’s Counter-Claims

      In his fifth issue, Burns asserts that the trial court erred when it granted

summary judgment in favor of Seascape on its counter-claims for past due monthly

maintenance assessments and for attorney’s fees. Seascape has filed a motion to




                                        24
dismiss this portion of Burns’s appeal.4 Seascape asserts that the appeal of this

issue was rendered moot when Burns voluntarily paid the assessments and

attorney’s fees.

      The record shows that, on November 3, 2010, the trial court signed the

interlocutory order granting summary judgment on Seascape’s counter-claims and

ordering Burns to pay the assessments and attorney’s fees. It is undisputed that

Burns sold the condominium unit on January 13, 2011. As part of the closing on

the property, Burns paid the past due monthly assessments and attorney’s fees.

Final judgment was rendered on May 23, 2011, when the trial court granted

Burns’s motion to dismiss Hudack & Dawson. Despite his payment of the sums,

Burns now challenges on appeal the portion of the judgment awarding Seascape

past due assessments and attorney’s fees.


4
        In his response to the motion, Burns requests that we strike Seascape’s motion to
dismiss because it did not confer with him or include a certificate of conference, as
required by Texas Rule of Appellate Procedure 10.1(a)(5). See TEX. R. APP. P.
10.1(a)(5). We do not condone Seascape’s disregard of the rule; however, because Burns
has filed a response to the motion to dismiss, no purpose would be served by striking the
motion and requiring a conference. Burns also points out that Rule 10.2 requires that a
court of appeals should not hear or determine a motion until 10 days after the motion was
filed. See id. 10.3. Burns complains that Seascape ran afoul of this rule because the
motion was filed less than 10 days before the submission date for this appeal. Burns
contends that, as a result, he had insufficient time to prepare an adequate response to the
motion. We note that this Court withheld determination of the motion to dismiss until the
passage of 10 days. See TEX. R. APP. P. 10.3. Moreover, Burns did not request a
continuance of a determination of the motion, request an extension of time to file his
response, or otherwise seek to supplement or amend his response before our
determination of the motion. See id. 10.1(b) (providing, “A party may file a response to a
motion at any time before the court rules on the motion . . . .”).
                                            25
      Generally, when a judgment debtor voluntarily pays, and thereby satisfies a

judgment rendered against him, the cause becomes moot and must be dismissed.

Continental Cas. Co. v. Huizar, 740 S.W.2d 429, 430 (Tex. 1987); Highland

Church of Christ v. Powell, 640 S.W.2d 235, 236 (Tex. 1982). The mere fact that

a judgment is paid “under protest” will not prevent the case from becoming moot

on payment. Huizar, 740 S.W.2d at 430. Yet, if payment is involuntary, the rule

does not apply. Riner v. Briargrove Park Property Owners, Inc., 858 S.W.2d 370

(Tex.1993) (stating that, if a party does not voluntarily pay a judgment, his appeal

is not moot). As Burns correctly avers, payment of a judgment made involuntarily

under duress will not moot an appeal of the judgment. See Highland Church, 640

S.W.2d at 237.

      In Highland Church, the Supreme Court of Texas held that the church’s

payment of the judgment at issue was made under “implied duress,” caused by

accruing penalties and interest, as well as the embarrassment the church would

have faced had execution issued against it. See id. The court held that, as a result,

the voluntarily payment rule did not apply to moot the church’s appeal. See id.

      Similarly, in Miga v. Jensen, the court held that payment of a judgment

would not moot an appeal because the record showed that the payment was made

under economic duress implied by the threat of statutory penalties and accruing




                                         26
interest on the judgment pending appeal.5 96 S.W.3d 207, 211–12 (Tex. 2002).

Texas courts have also generally considered payment of a judgment after writ of

execution issues to be involuntary, particularly when the judgment creditor initiates

efforts to execute against the judgment debtor’s assets. Riner, 858 S.W.2d at 370–

71.

      In contrast to the facts of those cases, Burns paid the assessments and

attorney’s fees before final judgment was rendered by the trial court. Execution of

the judgment was not an imminent concern for Burns. Additionally, Burns does

not claim that he paid the assessments and attorney’s fees to avoid accrual of

interest or penalties. Rather, in his response to the dismissal motion, Burns’s

attorney wrote as follows:

      Subsequent to the interlocutory Summary Judgment ruling, but prior
      to the Interlocutory Judgment becoming final, [Burns] was forced to
      sell his condominium because he was unable to make scheduled

5
      The purpose of the voluntary payment rule is to prevent a party who has freely
      decided to pay a judgment from changing its mind and seeking the court’s aid in
      recovering payment. Highland Church of Christ v. Powell, 640 S.W.2d 235, 236
      (Tex. 1982). Stated another way, a party should not be allowed to mislead its
      opponent into believing the controversy is over and then contest the payment and
      seek recovery of it. Id. In Miga v. Jensen, the supreme court explained that
      payment on a judgment will not moot an appeal of that judgment if payment is
      coupled with an expressed intent to appeal and if appellate relief is not futile. 96
      S.W.3d 207, 212 (Tex. 2002). Here, there is no claim or evidence that Burns
      expressed his intent to appeal the award of the assessments and attorney’s fees
      when he paid them. Cf. Beadles v. Lago Vista Prop. Owners Ass’n, Inc., No. 03-
      05-00194-CV, 2007 WL 1451515, at *2 (Tex. App.—Austin May 18, 2007, no
      pet.) (mem. op.) (holding that appeal not moot in case in which competing
      affidavits filed with respect to whether defendant told plaintiff that he planned to
      appeal judgment at time that he made payment on judgment).
                                           27
      mortgage payments due to the wrongful destruction of his
      condominium by the [Appellees]; otherwise, [Burns] would have been
      foreclosed upon, increasing as opposed to mitigating his damages, as
      the law encourages. However, because the Homeowner’s Association
      provided, and the title company was obliged under Texas law to
      obtain, a statement of all the outstanding fees and assessments
      claimed by the Association prior to closing, [Burns] was absolutely
      unable to close on the sale of the townhome without allowing the title
      company to pay the outstanding indebtedness claimed by the
      Association at closing.

      In sum, Burns claims to have paid the assessments and attorney’s fees

involuntarily under the above circumstances out of “economic necessity,” “to

avoid the possibility of additional economic losses,” and under the “implication of

duress.”   However, Burns offers no evidence to support any of the factual

contentions made in his response. See Resendez v. Pace Concerts, Inc., No. 07-02-

0168-CV, 2003 WL 22207641, at *4 (Tex. App.—Amarillo, Sept. 24, 2003, pet.

denied) (dismissing appellant’s challenge to attorney’s fees award in judgment as

moot in case in which appellant paid attorney’s fees to have abstract of judgment

removed from his real property so that he could sell property; appellate court held

appellant’s claim that he paid fees out of economic necessity, rather than

voluntarily, was not demonstrated by appellant’s generalized and conclusory

statements in his affidavit); cf. Miga, 96 S.W.3d at 212 (explaining that appellate

court may use sworn affidavit testimony to ascertain factual matters necessary to

proper exercise of its jurisdiction).


                                        28
        Burns’s has not shown that the harm he claims would befall him, had he not

paid the assessments and attorney’s fees, was actual or imminent. See Dallas

County Cmty. College Dist. v. Bolton, 185 S.W.3d 868, 883 (Tex. 2005) (holding

that duress not shown as a matter of law because harmed claimed was not shown to

be actual or imminent). In other words, Burns has not shown duress or that the

payment of the sums was involuntary. See Resendez, 2003 WL 22207641, at *4.

Accordingly, we dismiss, as moot, Burns’s appeal of the portion of the trial court’s

judgment awarding Seascape the monthly maintenance assessments and attorney’s

fees.

        We dismiss Burns’s fifth issue as moot.

                                    Conclusion

        We affirm the portions of the trial court’s judgment granting summary

judgment with respect to the following: (1) all claims against the individual

members of the Board of Directors, namely, John Pruetz, Brett Phillips, Julian

Echols, Tom Brune, and Ron Benotti and (2) Burns’s trespass claim against each

appellee. We reverse the portions of the trial court’s judgment granting summary

judgment with respect to the following: (1) Burns’s negligence and breach of

fiduciary duty claims against The Seascape Owners Association, Inc. and (2)

Burns’s negligence claim against Bill Etheredge d/b/a Etheredge Property

Management.      We dismiss Burns’s appeal of the portion of the trial court’s

                                         29
judgment awarding Seascape $10,348.63 for unpaid maintenance assessments and

$11,060.55 for attorney’s fees. We remand the case to the trial court for further

proceedings.




                                             Laura Carter Higley
                                             Justice

Panel consists of Justices Higley, Sharp, and Huddle.




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