      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                     NO. 03-11-00332-CV



                                   Randy Dennis, Appellant

                                               v.

           Beacon Ridge Townhomes Condominium Association of Owners, Inc.
                           and Debra D. Mathis, Appellees


    FROM THE DISTRICT COURT OF TRAVIS COUNTY, 345TH JUDICIAL DISTRICT
      NO. D-1-GN-09-004395, HONORABLE RHONDA HURLEY, JUDGE PRESIDING



                           MEMORANDUM OPINION


              The Beacon Ridge Townhomes Condominium Regime (the “Regime”) was formed

when the Declaration of Beacon Ridge Townhomes Condominium Association (the “Declaration”)

was filed with Travis County. See Tex. Prop. Code § 82.051 (specifying manner in which

condominiums may be formed). Under the terms of the Declaration, the Regime is governed by the

Beacon Ridge Townhomes Condominium Association of Owners, Inc. (the “Association”). When

the Declaration was filed, a portion of the property was subdivided into 24 units with each unit

having a 1/24th interest in the remaining undivided common areas.

              After the property had been subdivided but before any condominiums had been

constructed, Randy Dennis purchased eight of the units, which were subject to the terms described

in the Declaration. Subsequent to Dennis’s purchase, the Association began sending Dennis

assessments, which Dennis paid for months. When Dennis stopped paying the assessments, the
Association began charging him late penalties, and liens were imposed on the property by Debra

Mathis who was acting on behalf of the Association as the property manager. Ultimately, Dennis

elected to put his property up for sale and to file suit against the Association and Mathis. In his suit,

Dennis challenged acts by the Association as well as Mathis; however, for ease of reading, we will

generally refer to those parties jointly as the Association.

                In his suit, Dennis challenged the assessments that the Association charged as well

as the liens imposed on his property. In addition, Dennis asked the district court to declare that he

was not obligated to pay any of the assessments and that the Association breached the terms of the

Declaration by imposing the charges, to determine that the Association fraudulently imposed liens

on his property, to order the Association to compensate him for the value of the money that he had

previously paid to the Association for the imposed assessments as well as the value of a lost sale

caused by the imposition of the liens, and to enter a judgment quieting title and removing the

imposed liens. In response, the Association filed a counterclaim arguing that the assessments and

fines were proper, seeking a declaration that Dennis was required to pay the assessments and fines,

asking for a judgment for the assessments and fines owed by Dennis, and requesting authorization

to foreclose on his property.

                In addition to the various petitions filed by the parties, Dennis filed a traditional

motion for summary judgment, and the Association filed a joint traditional and no-evidence motion

for partial summary judgment. After reviewing the motions, the district court denied Dennis’s

motion but granted the Association’s motion. In its judgment, the district court dismissed Dennis’s

claims, declared that Dennis is a member of the Association and is required to pay the assessments,



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ordered Dennis to pay the imposed assessments and fines, and determined that the Association was

entitled to foreclose on Dennis’s property. On appeal, Dennis challenges the district court’s rulings.

               In two issues on appeal, Dennis contends that the district court erred by denying his

motion for summary judgment and by granting the Association’s motion. See Mann Frankfort Stein

& Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009) (outlining standard for reviewing

summary judgment rulings and explaining that when trial court grants one party’s summary-

judgment motion but denies motion filed by other party, appellate courts review all evidence,

determine all presented issues, and render judgment that trial court should have).

               Regarding his motion for summary judgment, Dennis argues that he proved as a

matter of law that he was not obligated to pay any of the assessments or fines imposed by the

Association and, accordingly, that he was entitled to summary judgment in his favor. When making

this claim, Dennis acknowledges that the Declaration does allow for the imposition of assessments

but notes that his units had not been constructed during the time that the Association imposed the

assessments and then points to various parts of the Declaration as support for the idea that the

Declaration only pertains to completed and fully constructed units. For example, he refers to the

portion of the Declaration evidencing an intention to create a plan with individual ownership of

apartment units, to the definition of “Unit” as “a physical portion of the condominium . . . for

separate ownership and occupancy,” and to the definition of “Condominium” as “the separate

ownership of single units in a multiple-unit structure or structures with common elements.” In light

of the preceding and other portions of the Declaration, Dennis insists that none of those “provisions

make sense if the Units are not built” and, therefore, that the Declaration only allows for assessments

“to be imposed on owners of completed Units.”

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               As a preliminary matter, we note that the terms of the deed specify that Dennis

purchased eight units in the Regime. In other words, even though construction had not been

completed, the property interest that Dennis sought and purchased from the previous owner was

eight units.

               Moreover, we note that in this issue Dennis is not challenging the manner in which

the assessments were calculated and does not allege that the assessments were imposed for improper

purposes. Instead, Dennis limits his challenge to the Association’s ability to impose the assessments

on an owner whose condominiums have not been constructed. Although Dennis correctly points

out that the Declaration does not explicitly mention imposing assessments on owners of incomplete

units, nothing in the Declaration expressly forbids their imposition either. More to the point, when

various provisions of the Declaration are read together, they support the proposition that assessments

may be imposed on an owner even if his unit has not been constructed. See Gulf Shores Council of

Co-Owners, Inc. v. Raul Cantu No. 3 Fam. Ltd. P’ship, 985 S.W.2d 667, 670 (Tex. App.—Corpus

Christi 1999, pet. denied) (applying rules of contract construction to condominium declaration).

               First, the Declaration implies that an ownership interest may be purchased before

construction is complete by specifying an intention to establish a plan “for the improvement” of the

property and for ownership under which individuals will own units and that the units to be purchased

and constructed are designated and defined by exhibits attached to the Declaration. In particular, the

Declaration defines an “Owner” as “any person that owns a Unit within the Project” and specifies

that a “Unit” is “a physical portion of the condominium designated by Exhibits B and C for separate

ownership and occupancy,” and the attached exhibits demonstrate the plans for proposed units that

had not been built yet.

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               Second, the Declaration explains that in addition to owning their residential

apartment units, owners also “each have an undivided interest in the” remainder of the property,

which was designated as the Common Elements. Stated differently, even though the structures had

not yet been constructed, Dennis acquired a property interest in the remainder of the property.

Furthermore, other than the units and Common Elements, the Declaration provides for no other type

of property ownership, and the Declaration explains that all of the restrictions and conditions

specified are “binding on all parties” acquiring an interest in the Regime. In other words, the

Declaration does not authorize the conveyance of any other type of property interest, meaning that

Dennis could not have purchased anything other than units along with an undivided interest in the

Common Elements. Consistent with that property structure, the terms of Dennis’s deed specify that

what he purchased was eight units along with “their appurtenant undivided interest in and to the . . .

common elements.”

               Finally, the Declaration states that the Association is responsible for “[o]peration

and maintenance of the Common Elements,” including “exterior painting, maintenance, repair, and

landscaping” and that the Association has all of the powers allowed by the Texas Uniform

Condominium Act, including the power to “levy assessments against Owners” to fund its activities.

See Tex. Prop. Code § 82.102(11) (empowering association to impose fees on owners for use of

common elements and for services provided). Moreover, regarding assessments, the Declaration

clarifies that by accepting the deed, each Owner agrees to pay “the regular and special assessments

levied,” that an “Owner may not waive or otherwise escape liability for these assessments by

nonuse of the Common Elements or by abandonment of the Owner’s Unit,” and that the assessments



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are “separate, distinct, and personal debt[s] and obligation[s] of the Owner against whom the

assessments are assessed.” By authorizing the Association to impose assessments on owners for

the maintenance and operation of the Common Elements, particularly in light of the fact an owner

may not waive his liability, the Declaration obligates individuals who purchase units to cover their

portion of the expenses regardless of whether their units are fully constructed by the time that the

assessment is imposed.

               In addition to the fact that the terms of the Declaration seem to authorize the

imposition of assessments in the circumstances present in this appeal, our construction of the

Declaration is also consistent with a prior case from this Court that addressed a similar issue. See

Fairway Villas Venture v. Fairway Villas Condo. Ass’n, 815 S.W.2d 912 (Tex. App.—Austin 1991,

no writ). In that case, as in the present case, the condominium association imposed an assessment

on the owner of undeveloped units, and the owner disputed the propriety of the assessment on

the grounds that assessments may not be imposed on owners of incomplete units and that the

governing framework only applies to fully constructed structures. Id. at 913-14. Ultimately, this

Court determined that the provisions governing the imposition of assessments applies to owners of

“existing and proposed apartments.” Id. at 915.1


       1
          We note that the decision in Fairway Villas Venture v. Fairway Villas Condo. Ass’n, 815
S.W.2d 912 (Tex. App.—Austin 1991, no writ), was based on the predecessor to the current Texas
Uniform Condominium Act, see Tex. Prop. Code §§ 82.001-.164 (containing Texas Uniform
Condominium Act), 81.001-.210 (comprising Texas Condominium Act, which applies to
condominiums created before enactment of Texas Uniform Condominium Act). Further, we note
that the pertinent definitions in the prior statute included both existing and proposed structures and
that the current statutes do not expressly mention proposed structures. Compare Tex. Prop. Code
§ 81.002(2), with id. § 82.003. However, we believe that the analysis from the prior case is still
relevant to the current issue in dispute.

                                                  6
               For all of these reasons, we conclude that the district court did not err by denying

Dennis’s motion for summary judgment, and accordingly, we overrule Dennis’s first issue on appeal.

               In his second issue on appeal, Dennis urges that the district court erred when it

granted the Association’s motion for summary judgment and determined that he was obligated to

pay the assessments and fines imposed by the Association.

               In his brief, Dennis contends that his assertions from his prior issue apply equally

to this issue and demonstrate that there is a material fact issue regarding whether the assessments

could be levied against him given that his condominiums have not been constructed. Alternatively,

Dennis contends that the Declaration is “ambiguous as to whether [it] allows the Association to

impose assessments on owners of Units that have not yet been constructed.” For the reasons set

out in our resolution of the first issue, we conclude that the Declaration is not ambiguous and

that the Declaration authorizes the imposition of assessments on owners even if their units have not

been constructed.

               In his second issue, Dennis also alleges that the district court erred when it granted

the Association’s motion for summary judgment because granting the motion improperly disposed

of his claims for breach of contract, for money had and received, for the imposition of fraudulent

liens, and for slander of title. The arguments Dennis makes on appeal as to why his claims should

not have been dismissed are based on Dennis’s assertion that the Declaration does not authorize

the imposition of assessments on owners whose units have not been constructed. However, as

discussed above, we have already concluded that the Declaration does allow for the imposition of

that type of assessment.



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               In his final set of arguments in his last issue, Dennis asserts that the district court

erred when it rendered summary judgment in favor of the Association and awarded it $50,080.00 as

fines for late payments on the imposed assessments. As with his other contentions, Dennis is not

challenging the manner in which the fines were calculated and instead insists that the Association

did not have the authority to impose the fines. As support for this proposition, Dennis refers to the

affidavit of Mathis in which she explained that Dennis was charged $10 per unit per day for each

month that he failed to timely pay his assessments and that Dennis was charged after the Association

complied with the notice requirements found in rule 14 of the Rules of Conduct for the Regime.

When disputing the propriety of the imposition of the fines, Dennis argues that the rules of conduct

do not govern the failure to pay assessments and that rule 14 does not expressly authorize the

Association to impose fines for the failure to pay assessments and instead applies to complaints

regarding the management of the condominium or regarding the actions of owners, sets out a four-

step process for handling the complaints, and allows for the imposition of fines only for violations

of the rules of conduct.

               Although Dennis correctly points out that the rules of conduct do not directly

mention fines for failing to timely pay assessments, the Declaration as well as the Texas Uniform

Condominium Act do authorize the Association to impose assessments on owners as well as fines

for failing to timely pay assessments and for other violations. See Tex. Prop. Code § 82.102(a)(11)-

(12). Accordingly, the fact that the Association chose to follow the procedures set out in rule 14

when imposing fines for Dennis’s failure to pay the imposed assessments would not seem to

somehow divest the Association of the authority to impose the fines.



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                  For all of these reasons, we conclude that the district court did not err when it granted

the Association’s motion for summary judgment, and therefore, we overrule Dennis’s second issue

on appeal.

                  Having overruled both of Dennis’s issues on appeal, we affirm the judgment of the

district court.



                                                  __________________________________________

                                                  David Puryear, Justice

Before Justices Puryear, Rose, and Goodwin

Affirmed

Filed: August 7, 2013




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