## I n the Court of Appeals Second Ap pellate District of Texas at Fort Worth

___________________________ No. 02

- 21

- 00321

- CV

___________________________

On Appeal from Probate Court No. 1 Tarrant County, Texas Trial Court No. 2019

- PR00577 -1-A
Before Kerr, Bassel, and Womack, JJ. Memorandum Opinion by Justice Kerr 

### I N THE 

### E STATE OF 

### D OLORES 

### E LIZABETH 

### D OUGLAS 

### , D ECEASED 

### ; D EREK 

### D OUGLAS AND 

### C HARLES 

### D OUGLAS 

### , J R 

### ., BOTH IN DIVIDUA LLY AND 

### C HARLES 

### D OUGLAS 

### J R 

### ., D EPENDENT 

### A DMINISTR ATOR OF THE 

### E STATE OF 

### D OLORES 

### E LIZABETH 

### D OUGLAS 

### , D ECEASED 

### , Appellants

V



### . T HE 

### C ASTILLIAN 

### C ONDOMINIUMS 

### , I NC



### . AND 

### R ONALD 

### W. H ARRIS 

### , Appellees2 MEM ORANDUM OPINION
I. Introduction Appell ants Derek Dougl as and Charles Douglas Jr. , individually , and Charles Douglas Jr., dependent administrator o f the Estate of Dolores Elizabeth D ouglas (collectively, t he Douglases) , l ost their in heritance

— t heir mother Dolores ’ s condominium and he r personal pro perty in it

— w hen they failed to pay con dominium

a ssessments for several years after he r de a th, ultimately resulting in A ppellee The Castillian Condominiums, Inc. ’ s using nonjudicial foreclosure to se ll Dolores ’ s co ndo

at public auction

. The Ca stil lian later sol d the condo to Appellee Ronald W. Harris

. T he D ouglases sued The Castillian for wrongful foreclosure , statutory theft, conversion, and ne gligence ; sued both The C asti l li an and Harris for unjust en rich ment and trespass to try titl e; and sought a d eclaration that The Castillian ’ s and Har r is ’ s deeds were void. T he trial court granted summary judgment on all of the Douglases ’
claims in favor of The Castill ian and Harris

. The crux of the Doug la ses ’ three i ssue s on appeal is that The Castillian could

not use nonjudicial for e clo sur e . But t he record and the law reflect ot herwise , and the Douglases failed to raise a genuine is sue of mate rial fa ct t hat would preclude s ummary j udgment on their other c laims

. According ly, w e affirm. II. Background The following timeline gives the background

.3 • 19 99 : Dolores obt ains a home

- equit y loan , which the lender record s in the county real

- pro p ert y records and ultimately assign s to Citibank.

• Ja nuary 23, 201 4: The Castillian notifies Dolo res by certified and first class mail at her post office box address that she owe s $472 in unpaid condominium assessments , warns her that coll ec tion proceed i ngs could begin within 30 days, and advises her that a payment plan i s available

.

• May 16, 2014: Dol ores dies wi thout leaving a will. See Tex. Est. Code Ann. § 201.001 (a)

– (b) (providing that if a person who dies intestat e does not lea v e a spouse, the estate to which the person had title de s cends and pa sses to her children).

• August 19, 2014 : Dolores ’ s loa n ser vicer sends a demand letter to her condo ’ s street address to inform her of her mortgage ’ s default status for failu re to m a ke the July payment , pl us late charges, and requir es paymen t b y September 1 8, 2014 , to avoid the note ’ s accelerat ion an d foreclos ure.

• Some point in 2014: Charles receives a phone call from “Hana who worked in [The Castillian ’s] office in 2 0 1 4, wh erein she inquired about [Dolo res ’ s ] car. During that call s he told [him] sh e would get back to [him ] as to how much she believed was owed to the Condo Association on [Dolores ’ s ] condom inium . She
ne ver called back. ” 1

• March 18, 2015 : The Cas ti llian mail s a letter about $5 , 218 in overdue condo
ass essmen ts (p lus $142 in atto r ney ’ s fees) to “ Esta te of Dolores Douglas ” at Do lores ’ s post office box address and two variations of the condo ’ s stre et address , as well as to Charles and Derek at the two v ari at ions of the condo ’ s st reet address.

• May 1, 2015 : T he Castillian file s a noti ce of lien against the condo for $6 ,229.40 for nonpayment of assessments a nd related charges and lists Dolores ’ s

1 The Castillian obj ected to this paragraph of Charles ’ s affidavit but did not obtain a ruling

. The Douglases also attached a po rtion of Jason R eed ’ s de posit io n , in which Reed, who worked for The Castillian, testified th at Dolores ’ s o bit uary ha d indicated th at she was surv ived by two sons, so they had Charles an d Derek ’ s names , “ [

b] ut no other informa t ion concerning, you know, w h er e they lived or anything like t hat. ”4 estate , Charles , and Derek as the condo ’ s owner s. 2 The Castillian al so sends a letter and a copy of the no tic e of lien to “ E state of Dol ores D oug las ” at Dolores ’ s post office box address and the condo ’ s street addre ss, as well as to Charles and Derek at the condo ’ s street address , to advise the m abo ut the filing of the not ice of lien , the first step in the for ecl osure process
.

• June 25, 2015 : Citibank s ue s Charles and Derek to f oreclose its lien

. 3

• August 5, 2015 : The Castillian file s a notice of a ssessment

- lien sale and sen ds a le tter to the same addre sses where it sent the noti ce of lien, in forming “ Esta te of Dolores Dougla s, ” Charles, and Derek that the property will be sold at public
a uction on September 1, 2015 , if the now

- $8,5 82.38 in as sessments and costs are not paid

.

• September 1, 20 15: The Castillian buys the condo at pub lic auction

.

• September 11, 2015 : The Castillian record s i ts dee d in the county real property records , and , using the same address es as befo re , sen ds a letter to “ Estate o f Dol or es Douglas, ” Charles, an d Der ek to notify them of the September 1, 2015 sale and their 90

- day r ight of redemption

.

• Novembe r 201 6: Charles and Derek begin negotiating with Citibank

.

• February 9, 2017: C harles and Derek retai n counsel to assist them in the Citibank law suit.

• March 2017: Charles and Der ek settle with Citibank

.

• Apri l 14, 2017 : Citi bank release s its lien

.

2 Charles testified that he did not know t hat notices of lien were a type of ins trument filed in the county r eal property records , but he agre ed that in struments in the public records were somet hing anyone cou l d view o r fin d. S e e Tex. Pro p. Cod e Ann. § 13.002 (stating that a n i nstrument that is properly recorded in the proper count y i s notice to all persons of t h e instrument ’ s existence and is subject t o the public ’ s inspection ).

3 Charl es testifi ed th a t he lea rned ab ou t Citibank ’ s lawsui t after the trial court appointed an att orney ad litem , who located him. Derek did not recall bei ng served by Citibank.5 • April 2 8, 2017 : The Castillian pays $ 2,640 to Junk Guru Profes sio nal J un k Removal Services to have Dolore s ’ s p ersonal p roperty removed from the condo

. 4

• July 2017: Derek and Charles , who did not check the real property records themselves, learn that Citibank entered a release of li en .

• Ju ly 2 5 , 2017 : Harris contra ct s wit h The Castil l ian to b uy the condo

.

• October 17, 2017 : Charles visits the condo , no tices some of hi s mother ’ s property is missing from the patio, and see s someone else ’ s propert y in side t hrough the condo ’ s window

. 5 He s peaks with The Castill ian ’ s secretary, who tells him that the condo was so ld

. The Cas tillian ’ s chairman tell s C harles to lea ve and calls the police

. 6

• August 1, 2018: Charles and Derek sue The Castillian and Harris 7 to v oid the i r dee ds under a wrongful

- for e closure theory an d seek recovery for the los s of Dolo res ’ s personal property under th e Texas Theft Li ability Act ( TTLA ) ; a lternatively , they seek r estitution and recovery for unjust enrichment

.

• February 22, 2019 : Charl es applie s for ind epende nt admin istration o f Dolo re s ’ s estate
. 8

• May 20, 2019: Charles i s appointed dependent estate adminis t rator
.

4 The Cast illian attached photographs of the condition of Dolores ’ s condo an d perso n al prope rty t o its summary

- judgment motion.

5 Charles d id not try to go in b e cause he had for gotte n to bring the key with him

.
6 Charles did not make a pol ice rep ort about his mother ’s missing personal prop erty be cause he was “ cha sed o ff the property by the po lice ” and was told that if he returned, he would be trespassing.

7 H arris cross claimed against The Ca st illian for breach of warranty of title , but th e t rial court dismissed th is cla im in the f in al judgment , a nd Har ris ha s not app ealed

.
8 Charles said that he had not filed for administration of Dolores ’ s est ate earlier because he and h is brother had no dispute abo u t the estate , and he did not think there
wa s a need to fi le ; Derek e ch o e d his s entim en t.6 • August 20, 2019: Charles and Derek , along with Charles as estate a dministrator , file their fourth amen de d petit io n , addin g a c laim for tre spass to try title.

• Feb ruary 27, 2020 : T he cas e i s transferred to th e probate co urt.

• January 4, 2021: Har ris f iles a traditional m otion for summary judgment, arguing that h e is a bona

- fide purc ha ser f or val ue wit hout notice

.

• January 26, 202 1: The Dougl ases file a resp onse to H a rris ’ s motion , argu ing that the tru stee ’ s foreclosure deed was void becau se The Castilli an lacked author ity to conduct a nonjudicial foreclosure

.

• F e bruary 8, 2021: The trial court gra nts Harris ’ s summary

- judgment motion.

• Marc h 25, 2021: Harris sells the con do

.

• Apr il 27, 2021: The Douglases file their fifth amend ed petition, which adds a claim f

or negligence against The Casti llian a nd an alternative clai m for conversion

.

• May 14, 2021: Th e Castillian files a traditiona l and no

- evide nce mo tion f or s ummary judgment , arguing that its nonjudicial foreclosure was not wrongf ul, as wel l as arguing limi tation s, notic e, an d superior title, among other things

.

• June 8 , 202 1: The Dou glases respond to The Castillian ’ s summary

- ju dgment motion , a rgu ing that fa ct issues preclude a traditional summary judgment a nd that
a probate

- code exception to limitations a p pl i es , among other things

.

• July 9, 2021: The trial court renders a f inal judgment, granting The Castillian ’ s moti on and order ing a ta k e

- nothing judgment as to the D ouglases

. In addition t o the a bove facts , d uring their depositi ons, Ch arles and Derek
testif i ed that they had been aware i n 2014 both that Dolores owed a monthly

assessment payment to The Castilli an and that ther e had been a mortg ag e o n the
condo

. T h ey nonetheless made no as sessment payments , mor tg age payments , or payments f or taxes or insurance o n the c ondo after Dolore s died , and they did not7 occupy the cond o for any am ount of time or attempt to re nt or sell it after Dolores ’ s death

. Charles and Derek al so kn ew that Dolores had a post of fice box and where it
was loca ted ; Derek did not check the p ost office box, but Charles did. Charles

c hecked on the condo from time to time, and b etween May 16, 2014 and June 25,
2015

— t hat is, after Dolores ’ s death a nd before Citi bank sued to foreclos e its lien

— h e retriev ed his mother ’ s televisions and her computer from the condo , retriev ed the

contents of the unsecured m ail box next to the condo ’ s front door (which he said
contained only ju nk mail) , and retriev ed he r bills from the post offic e box. 9 Charles pai d the condo ’ s electric bills once or twice before he tur n ed of f the electricity

. Charles testified tha t twice during the M ay 1 6, 2014

– June 2 5 , 201 5 time period , he had attempt ed to cal l The C astillian ’ s o ffice to fin d out ho w much was owed on
the assessments , “ but no one answered. ” 10 Neither Charles nor Der ek e ver provided
their contact information to The Castillian, th e Tarrant County Appraisal District, or
any other governmenta l age nc y or authority , and they did not give any utilitie s

9 Charles testified that he had lived in Round Rock be tween 1993 and 2014, a two

- and

- a

- h alf to th r ee

- hour drive to D olores ’ s condo

. A f ter D olores purchased the condo in the 1990s , h e had v is ited her the re aro und “ eigh t ti mes a year . ” Derek ha d lived in Ohio at the same address s ince 1992.

10 Derek s tated that he asked C harles to contact Th e Castilli an on his behalf to let it know that Dolo res had died and to find out what she owed to the ho meo wners ’
ass o ciati on, b u t he did not recall wh en Char les contact ed it. Der ek said that the y did not receive a re sponse from The Castillian.8 prov iders a new bil ling address or file a change of addres s form as the cond o ’ s owners

w

i th the United States P ostal Servi ce (USPS )

. Charles went by the condo at least o nce in ea rl y 2016. He knew P hilip, one of
The Ca stillian ’ s mai ntenance m e n , who had Charles ’ s phone number

. A ccording to Char les, Philip called him at some p oint t o tell him that someone had brok en one of
the condo ’s windows

. Th e window was board ed up when Charles arr ived , and the
condo ot herwise appeared t o Charles to be secure, clo sed, and loc ked up , although a

c ouple of items

— his father ’s flag and a massage table

— were missing

. He di d not call

a nyone t o replace the glass in th e broken win dow and did not make a police report about the missing items. He considere d having an alar m installed after the break

- in
but did not because that would have require d electricity

. Before Mar ch 3, 2 017, neither Cha rle s nor Dere k examined the c ondo ’ s title or
looked at the Tarrant Count y real

- prope rty records for the cond o. They both te stified that their understanding of the mort gage payoff was to acquire the condo ’ s title 11 a nd
that t heir attorn ey ha d to ld them

— before t hey made the payoff

— that the condo had
been valued by the Tarrant Appraisal Di s trict at $109,61 0 for 2016. Between March 3, 2017 ( when the Douglases paid off the Citibank mortgage )
and Ju l y 27, 20 17 ( when Harris bought t h e co ndo ), Char les di d not check on the

11 Derek stated that his u nderstanding was that “ [i ] f the co urt saw we paid our moth er ’ s mortg age, the Court w ould give us title to her hom e. ”9 condo or have any contact with The C astillian. H e did no t notify The Castill ian or the appraisal district that they had paid off the Citibank mo r t gage . III. Summary Judg me nt The D ouglases argue th at T he Castill ian ’ s and Harris ’ s traditional summary

judgment motions s hould not have been granted because their mo tions failed to conclusively negate any of the elements in the Douglases ’ causes of action. They

c omplain that th e trial co urt shoul d not have granted The Castil lian ’ s no

- evidence
summary

- judgment motion because they raise d sufficient fac t issues t o def eat it

. A. St andards of revie w We review a summary judgment de novo. Travele rs In s. v. Joachim , 315 S.W.3d
8 60, 862 (Te x. 20 10)

. We consid er the evidence presented in the light most favorable
to the nonmovan t, crediting evi dence favorable to the n onmovant if reasonable jurors could, and disregarding evidence contrary to the nonmov ant u nl ess reason able ju rors

cou ld not. Man n Fra nkf ort Stein & Lipp Advisors, Inc. v. Fi elding , 289 S.W.3d 844, 848 (Tex. 2009). We indulge every r easonable inference and resolve any doubts in the
nonmovant’s favor. 20801, Inc. v. Parker , 249 S.W.3d 392, 3 99 (T ex . 2008)

. A
defend ant that conclusive ly ne gat es at least one essential element of a plaintiff’s cause
of action is entitled t o summary judgme nt on that claim. Frost Nat’l Bank v. Fernandez , 315 S.W.3d 4 94, 508 (Tex. 2010); see Tex. R. Civ. P. 166a(b) , (c)

. Once the defendan t produc es sufficie nt ev ide nce to esta blish the right to summary judgment, the burden10 shifts to the plainti ff to come forwa rd with competent contro verting evidence that
raises a fact i ssue. Van v. Peña , 990 S.W.2d 751, 753 (Tex. 199 9).
A ft er an adequate ti me for d iscovery, t he pa rty without th e burden of proof may, wit hout presenting evidence, move for summary judgment on the ground that
no evidence supports an essential element of the nonmovant’s claim or defe nse. Tex.
R. Civ. P. 16 6a(i)

. The m otion must specifica lly state the e lem ents for wh ich no
evidence exists. Id. ; Timpte Indus., Inc. v. Gish , 286 S.W.3d 3 06, 310 (Tex. 20 09). The
trial court mu st grant the motion unless the non movant produces summary

- j udgment
evidence that raise s a g en uine, materia l fact issue

. See Tex. R. C iv. P. 166a(i) &
1997 cmt.; B.C. v. Steak N Shake Operations, Inc. , 598 S.W.3d 256, 259 (Tex. 2020)

. When a party moves for summary judgment under both Rule s 166a(c) and 166a(i) , we will first review the trial cour t’ s judgment u nder the stan dards of Rule
1 66a (i). Ford M otor Co. v. Ridgway , 135 S. W.3d 598, 600 (Tex. 2004). If the appellant failed to produ ce more than a scintill a of evidence under that burden, there is no need to analyze whether the appellee’s su mmary

- j udgment proo f satisfied t he Rul e 166a(c)
bu rden. Ridgw ay , 135 S.W.3d at 600.
B. W rongful f oreclosure The elements of wrongf ul forecl osure a re (1) a defect in the foreclosure

- sale
pr oceeding; (2) a g rossly inadequate s elling price; and (3) a causal conne ct ion be tween the defect an d the grossly inad equate selling price. Buchanan v. Comp ass Bank , No. 02

- 14

- 00034

- CV, 2015 WL 22214 3, at *5 (Tex. A pp.

— Fort Worth Jan. 15, 2015, pet.11 denied) (mem. op.). The Castillian challenged the defect

- in

- the

- foreclosur e- sal e element, arguing i n both the no

- evidence an d traditional portion s of its summary

judgment moti on that it was not prohibited from conducting a nonjudicial foreclosure
under t he condom inium declaration 12 and that it had strictly complied with all

statu tory re quirements.
1. Nonjudici al foreclosure The Douglases argue that The C astillian ha d no right to nonjud icia lly for eclose

on the condo. The Castillian res ponds that its enabling declaration does not prohibit

no njudi cial fo reclosure and that the Te xas Uniform Condom inium Act (TUCA) expressly permits it. Th is portion of the parties ’ dispute cen t ers on how to construe the declaration with TUCA

. W e construe a condominium declaration under th e rules of c ontra ct interpretatio n. See Jaka b v. Gran Vill a Townhouses Homeowners Ass ’n , 149 S.W.3d 863, 867 (Tex. A pp.

— Dallas 2004, no pet.)

. Contracts, l i ke statutes, should be construed
based on their plain l an guage , Compass Bank v. Calleja

- Ahedo , 569 S .W.3d 104, 1 14 (T ex . 2018) , and b y consi deri ng the entire writing in an effort to give effect to all the

12 A declaration is the instru men t that establishes property under a
co ndominium regime

. Tex. Prop. Code Ann. § 81.002(5) ; see also id. § 82.003 (a) (11) (defini ng declaration as “ an instrument, however de nominated, t h at cr eates a condominium, and any amen dme nt to that instrument ” ). A de cla ration forms a contract between the ho meowners association and the c ond ominium un it owners. Bundren v. Holly Oaks Townhomes Ass ’n , 347 S.W.3d 421, 435 (Tex. App.

— Dalla s 2011, pet. de n ied)

.12 provisions so that none will be render ed meaning le ss, AMI Ass ’ n Mgmt., Inc. v. Sprecher , No. 01

- 15

- 0079 1

- CV, 2017 WL 3526762, at *4 (Tex. App.

— Houst on [1st Dist.] Aug.
17 , 2017, no pet.) (mem. op .) (citing Coker v. Coker , 6 50 S.W.2d 39 1, 393 ( Tex. 1983) ).
Dolores ’ s condo was governed by a 19 76 declara tion t hat included a monthly

as sessmen t 13 for which a li en could be pla ced that would be inferior to a tax lien or a

mort ga ge, vendor ’ s lien, or dee d of trust filed for record bef ore the date payment of
assessments became due

. The per tinent por tion s tates, Such lien for assessmen ts . . . may be fo reclosed, without preju dice and subject to the afo re said pri o r li en s, by suit by the Board o f Administr ation or any authorized officer thereof, acting in b ehalf of the Council of Co

Owners, i n li ke man ner as mortgages o n real property. No such foreclosure shall affect or impair any such prior liens.

. . . Further, to

13 Und er the 19 76 declaration , e ac h c on do owner had to pay his or her pro

- rata share of various expenses assessed pursuant to authorit y given by said [Te xas Condominium] Act , or this Declaration or said By

- Laws, each of wh ich assessments shall become due an d pay ab le within 21 da y s fr o m the da te each such assessment is ma de unless othe rwise sp ecified in the By

- Laws, and such assessments , t ogether with reasonable attorney ’ s fees as hereinafter provided, shall become liens aga inst the respective apartment units for th eir prorat a sha r e the reof at the time such assessments bec ome due and pa yable un less otherwise specified in said By

- Laws. No o w ner s hall be exempt from contribu ting toward such expense, charges, costs or assessment s by waive r of the use o [r ] enjoyme nt of t he common eleme n ts, e ither ge neral or limited, or by a band onment of the a partmen t belonging to him. I n the event it shall beco m e necessary for the Council of Co

- Owners or Board of Administration to employ the servic es o f an attorney to collect said asses sm ent and enforce the l ien h ere in granted, the owner or owne rs failing to p ay said assessment sha ll pay, in addition to the asse s sment due, reasonable attorney ’ s fees to the Council of Co

Owners or Board of Adm inistra tion.13 c o ll ect sums owed to the Council of Co

- O wners by apartment owners, the Board of Administratio n may deny delinquent owners the right to use the common elemen ts and may suspend all services, inc luding uti lity
s ervices, and may exercise any other right or reme d y available to enforce such claim

. [Emphas e s added.] The Douglases argue that “ by suit ” mean s that nonjudic ial foreclosure is prohibited. The Castillian a rgues th at it cou ld exer cise any “ other right or remedy available , ” i ncl ud in g nonjudicial foreclosure.
T he declaration also included t he following in terpreta tio n and savi ngs provision s :

. . . If any declaration or provisions herein contained shall be susce p tible
o f two or more interp retations, the i nterpreta tio n wh ich shall most nearly be in accord with the purposes and intents hereof [ 14

] shall go vern.

. . . In the event of the omission herefrom of any declaration , st

ipulation o r provision which sh all be vi t al, ne cessary or expe dient for the accompl ishment o f t he p urposes and intent of this Declaration, this Declaratio n shall not there by fail, in whole or in part , but any and all omitted matter shall be supplied herein by inference and/or by referen ce to the provis ions of the Texas Condominium Act un der which th is
c on dominium regi me is established, and such provisions of such Act are her e by made part he reof by ref erence thereto. Chapter 81 of the Pro perty Code, the Texas C ondominium Act, ap plies to a

co ndo min ium regime created before January 1, 19 94. 15 Tex

. Pr op . Code Ann.

14 The declaration ’ s i ntrod uc tory paragraph s set f orth the inte nti on t o submit the property “ to the condom ini um regime established by the Texas Condom inium Act , as now existing or hereafter amended

. . . . ” [Emphasis added.] As set out in the declaration and noted above , a n in tegral part of t hat r egime was the pro

- rat a p ay ment of common expenses thr ough the a ssessments.

15 See generally A ct of Ma y 15, 1963, 58th Leg. , R.S., ch. 191, §§ 1

– 26, 1963 Tex. Gen. Laws 507, 507

– 12 (amended 1979 and repealed and replace d i n 198 3 with14 §§ 81.001 , .0011. A condominium regime created before Janu ary 1, 1994 , to which the
Texas Condomin ium Act applies , “ is also governed by Chapter 82 [i.e., TUCA] as provided by Secti on 82 .0 02. ” 16 I d. § 81 .0011( b). Accordingly, some sect ions of TUC A apply to the declaration at hand via Section 81.0011(b)

. 17 See i d. § 82.002(c). But th ese

Pro perty Code ’ s enact ment ) (c urrent version at Te x. Prop . Code Ann. §§ 81.001

– .210). T he 1963 Act , then

- Article 1301a of the Revised Civil S tatutes, required a declaration to contain various descr iptions of the land, individ ua l units , and commo n ele me nts , the fractional o r p e rcentage interest that eac h u nit bore to the en tire condom inium re gime , and “ [a]ny further provisions , matters, or covenants desire d” and stated that upon sale of a u nit, any unpaid assessments for the unit ’ s pro -rat a share of co mm on expenses (such as adm i nistrat ion, maintenance an d r epair of general common eleme nts) wou ld first be paid out of the sale price except fo r assessments, liens , and charges in favor of the state for past

- due taxes and “[a] mounts due under
mo rtgage ins trume nt s duly re corded. ” See Te x . Rev. Civ. Stat. Ann. a rt. 1301a, §§ 7, 18 https://www. sll.texas. gov/library

- resources/collections/historical

- te xas

- statutes/ bookreader/1964/#page/ 278/mode/ 2up ( last visited Sept. 14 , 2022) ; see also Tex. Prop. Code Ann. §§ 81 .1 02 (b), .208 (stating es sen t ially same information ). Neither Chapter 81 nor i ts predecessors s pecifically address foreclosure. See Dickerson v. DeBarbier is, 964 S.W.2d 680, 684

– 85 (Tex. App.

— Houston [14th Dist.] 1998, no pet.) (“ Although the condo mi niu m sta tu tes in ef fec t since 1 96 3 [] have prescribed what a condominium declaration must contain, non e h ave required it to specify the e xi stence of either a power of sale, a nonjudicial foreclosure remedy, or even the lien itself. ”).

16 See Robert D. Burton, TU CA Tu rn s 25 , 30 St ate Bar of Te x . Prof. Dev. Program, Advan ced Real Estate Drafting Course (2019) , 2019 WL 2075567 (n oting that t he T e xas Condominium Act “ le ssened hardships of the 1960s housing crisis [but] . . . was des tined to be left behind, as it prov ed in ad equate t o ad dress rea l world issue s faced by condominiums ” ).

17 TUCA also applies to a condomi nium for which the declaration wa s recorded before January 1, 19 94 if either the owners of u nits vote to amend the decla ration to have Chapter 82 apply and that am endmen t is filed for r ecord in the condo mi nium records in each county where the cond ominium is located or th e pre- 1994 decl ara tion or an amend ment ther eto states t hat Chapter 82 will apply in its entirety on January 1, 1994. Tex. Prop. Code Ann. § 8 2.002 (a ). The record here ref lects no such vote or15 sections “ appl y only with respect to events and circu mstances occurring on or after January 1, 1994, and d o not invalidate exist ing provisions of the decl arati on , b ylaws, or plats or plans o f a condominium for which the declaration was recorded befor e January 1, 1994. ” 18 Id. The question here is whether S ubsection ( e) of Section 82.11 3 appl ies

. Subsection (e) states that a co ndo associat ion ha s t he right to fore cl ose an assessments lien judicially or by nonjudicial foreclosure under the power of sale creat ed in either
Cha p ter 82 19 or the declaration , exc ept that it may not forec lose a lien for assessments

cons ist ing so le ly of fi nes. Id. § 82.113 (e)

.

amendment by The Castillian ’ s unit o wners. Cf. Dickerson , 964 S.W.2d at 682 (notin g that condo ass ociation amended its bylaws in 1989 to provide that it could use nonjudicial foreclosure).

18 Specif ically, S ectio ns 82.00 2, .005

– .007, . 0 53

– .054, .10 2( a)(1)

– (7), (a)(12)

– ( 21), (f), and (g), 82 .108 , .111, .113

– .114, .116, .118, .157, and .161 apply, as l isted in Sect ion 82.002(c) , if they do not inv ali d ate existing declaration provisions

. See Tex. Prop . Code Ann. § 82

. 00 2( c) ; Riner v

. Ne umann , 353 S.W.3d 312 , 317 (Tex. App.

— Dallas 2011, no p et. ) (refusing to apply TU CA to a pre

- 199 4 dec laration to t h e extent Secti on 8 2.113 contain ed different lien

- priority provision s that would invalidate th ose set forth in the decl ar at ion) ; see also Kenn e th D. Eichner, P.C. v. Dominguez , No. 14

- 16

- 00192

- CV, 2017 WL 2561334, at *7 (Tex. App.

— Houston [14th Di st.] June 13, 2017, no p et.) (mem. op.) ( same ).

19 Sub section (a) states that an assessment is a unit owner ’ s personal obliga tion , “ secured by a c o ntinui ng lien o n the unit ” ; S ubsection (b) sets out the priority of lien s ; and S ubs ection (c) state s that th e associati on ’ s lien for as sess ments is created by record ation of the declaration, “ which constitutes record notice and perfec tion of the lien , ” re quiring no furt h er recordation unless the declar ation provides oth erwise. Tex. Prop. Code Ann. § 82.113(a)

– (c )

. Subsecti on (d) provides that by acquiri ng a unit, the unit owner gran ts to the association a power of sale in connection wi th th e associati on ’ s lien fo r asse ss m ents and that, except as provided by the declarati on, an16 The Doug lases c ontend that the d ec laration allow s for only judicial foreclosure , preventing the application of Section 82.113

. The Castillian responds that it could conduct a nonjudicial foreclosure because the declaration d id not prohibit it and
Sect io n 82.1 13 permitted it. The Castillian contends, “ The only time condomini um

a ss ociat ions are prohibited from using nonjudicial foreclosure is w hen the
condomini um ’ s decl arations expressly proh ibit nonj udicial foreclosures .”
The decl aration here states that an assessment lien “ may ” be foreclosed “ by
suit ,” but it do es not oth erwise explicitly address foreclosure. See Aghili v. Banks , 63 S.W.3d 812, 817 (Tex. App.

— Houston [14th Dist.] 2001, pe t. denied) (op. on reh’g ) (no ti ng that precatory use of “ may ” in condo declaration did not require additional recording of asse ssment lie n ). T he declaration ’ s plain language does, however, e xpressly all ow the condo asso ciation to “ exercise any other right or remedy
available ” to collect delinqu ent assessments , and it incorporates by reference the
Texas Condom inium Act, which subse quently inco rporate d certain portions of
TUCA , including Section 82.113

. See Dickerson , 964 S.W.2d at 684

– 85 (obs erving that , his torically, the con dom ini um st at utes hav e not required declarati ons to specify a nonjudicial

- foreclosure remedy) ; see also Ag h il i , 6 3 S. W.3d at 817 ( overruling the appellant ’ s compl aint based on the appellant ’s interpretation o f the declarat ion that

association sh a ll exercise its power of sale pursuant to Sectio n 51 .002. Id. § 82.113(d). Section 51.002 sets out the requirements to sell real property under a p ower of sale conferre d by a deed of t rust or other contract li en . Id

. § 51.002.17 “ would render mea ningless the l angua ge in the second paragraph allowing enforcement of the lien by all availabl e meth ods ” ). Accor dingl y, w e co nclude that The
Castillian c ould use nonju dicial foreclosure here without invalidating the declaration ,

a nd we overrule t his portion of the Dougl as e s ’ f irst and second issue s . 2. Co mpliance with Section 51.002
Section 51.002 requires that notice o f a real

- property s a le under a power of sale conferred by a deed of trust or other co ntract lien must be given at least 21 d ays b efore the sale date by ( 1) po st ing writ ten notice of the sale at the co unty courthouse
door ; ( 2) filing a copy of the posted no ti c e in the county clerk ’ s office ; and (3) serving
written notic e of the sale by certified mail on each debtor

. Tex. Prop. Code Ann. § 51.002 (b). The sal e mus t be a pub lic sale at auction held between 10 a.m. and 4 p.m.
of the first Tuesday of a month in t he area designa ted b y the county commissioners

court. Id. § 51.002 ( a)

. Service of a notice under this section by certified mail is complete w hen t he noti ce is d eposited in the United States mail, post age prepaid and
ad dress ed to the d ebtor at the debtor ’ s last known address , and the affidavit of a person kn owledg eable of the facts to the effect that service was completed is prima
fac ie evidence of s ervice. Id. § 51.002 (e ) ; see i d. § 51.002 1 ( “ A debtor shall inform the mortgage servicer of the debt in a rea s onable manner of any change of address of the debtor for purposes of providing notice to the debtor under Section 51.002. ” )

. The Casti llian demo n strate d it s c ompliance with Sectio n 51.002 ’ s requirements by attaching t o its summary

- judgment motion :18 • its Ma rch 18, 2015 letter , whic h was mailed to Dolores ’ s post office box and other ad dresses, informing the Douglases of the $5,360 o wed for assessme n ts, relat ed ch ar ges, and attorney ’ s fees ;

• its May 1, 201 5 letter , which was mailed to Dolores ’ s post office box and other addr esses, informing the Douglases that it would be filing a n ot ice of lien against the property f or the amount ow e d ;

• t he August 5, 2015 notice of assessment

- l ien sale warning that the property would be sold o n September 1, 2015, betw een 10 a.m. and 4 p.m. at the e ast steps of the Tarrant County Courtho use ;

• its August 5, 2015 letter, wh i ch was maile d to Do lores ’ s post office box and other addresses, supplying th e Douglases with a copy of the no tice of assessmen t

- lie n sale ;

• the affidavit of its agent stating that on August 5, 2015, the notice of as sessm ent

lien sale wa s deposited “ int o the c are and c ustody of the [US PS] , postage prepaid, certified mail, return rec eipt re quested, properly addresse d to Esta te of Dolores Douglas, Charles Douglas, Jr. , Heir at Law a nd Derek Douglas , Heir at Law at the most r ecent address sh o wn by the recor ds of t he holder of the indeb t edness ” ;

• its Se ptember 11, 2015 letter, which was m ailed to Dolores ’ s po st off ice box and
o ther addresses, n otifying the Douglases that the condo had been sold ;

• Derek ’ s and Cha rles ’ s depositio n tes ti m ony showing that they had never notified The Castillian or the Tarrant County Appraisa l District of any c ha nge of address or contact information before the sale ; and

• the September 19, 2007 amendment to The Casti llian ’ s by laws, wh ich was filed in the T ar ra nt County real

- property records and which required that “ [w]ithin t hirty (30) days of becoming an owne r, own ers must notify the As sociation , in writing, of the mailing address. Further, own ers must notify the Ass ociation , in wr i ting, of any change in t he ir mailing address within thirty (30) days after such cha nge of address. ”19 The Douglases argued in the trial co urt an d a rgue on appeal that The Castillian
should have under taken an heirship search to give them noti c e , 20 and they attached
Charles ’ s affi davi t, in which he stated that “ [ t]he office people at Casti llian
Condomini ums had [his] phone number. ” B ut neither Section 82.113 nor Section 51.002 require s u ndertaking an h e irship s earch or makin g pho ne calls . Accordingly,
because the Do uglas es failed t o raise a genuine issue of materi al fact regardin g The
C astillian ’ s compl iance with the statutory r equirements , we o verrule th is portion of
their first and seco nd issues witho u t reaching t heir gros s ly

- in ad equate

- s e lling

- price or causation arg ument s . See Tex. R. App. P. 47.1. Additionally, b ecause the Dou glases ’ unjust

- enric hment and tre spass

- to

- try

- tit le clai ms hinge in part on their wrongful

foreclosure and not ice arguments, we l ik ewise overrule t hese portions of their first
and second issues

. A nd w e overrule thei r third iss ue as to H a r ris ’ s summary

- judgment
motion because it s disposition also turn s on their wrongful

- fo reclosure ar guments.
C. Theft a nd conve rsion
T he Do uglases sued for t heft u nder the TTLA wit h an alter native t heory of
conversion. See T ex. Civ. Prac. & Rem. Code Ann. §§ 134.0 01

– .005

. To prevail on a
TTLA claim , a plaint iff mus t establ i sh th at he owned th e property , that t he defendant unlawfully appropriated the property in violation of the P enal Co de, an d that the

20 T o th eir summary

- j udgment response, the Doug lase s attached a portion of Reed ’s d eposi tion in which he testified that no heirship search was undertaken and that he did not rec all w he ther The Casti llian h ad perf o r me d an independent investigation to determine wher e Charles and Derek l ived

.20 plainti ff sustained damages as a result of the theft. Morrison v. Gage , No. 02

- 15

- 00026

- CV, 2015 WL 4043260, at *4 n.7 (Tex. App.

— Fort Worth Ju ly 2, 201 5, no p et .) (mem. op.) ( c iting Tex. Civ. Prac. & Rem. C o de An n. §§ 134.002

– .003, . 005) ; se e T ex. Penal Code Ann. § 31.0 3( a), (b)(1) ( stating that a person com mits theft if he unlawfully appropria tes property with the i n tent to deprive the owner th ereof and t hat

a pp ropriation is unlawful if it is without the ow n er ’ s effective consent). Under the
Pe nal Code, an “ owner ” is a person who has title to the property ; possession of the property, whether lawful or not; or a greate r right to possession of the property t han

t he actor who appropriates it . Tex. Penal Code Ann. § 1.07 (a) (35 )(A). Property that is aba ndoned cannot be the subject of theft. Sharpe v. Turley , 191 S.W.3d 362, 366 (Tex. App.

— Dallas 2006, pet. denied)

. “ Abandon ” means to give up

— it is a t otal deser tion, a n ab solute relinquishment

. I ngram v. State , 261 S.W.3d 749, 753

– 54 (Tex . App.

— Tyler 2008, no pet.) ( noting , in bur glary case, that when a n indiv idual trespasses onto real property and takes possession of aba ndon ed personal
property , such a n act is w rongf ul because title to the personal property “ rests in the
owner of the soil ” ). Title to aba ndoned person al property vests in the first person lawfully reducing it to possession. Trenolone v. Cook Expl. Co. , 166 S.W. 3d 495,
500 (Tex. App.

— Texar kana 2005, no p et .) ( explaining that to ripe n title to personalty, a person must reduce it to lawful possession after it has been a bandoned)

. 21

21 The Property Code ’ s general presumption tha t p e rsonal property is abandoned if , for longer than three years, the property ow ner ’s lo catio n is unkn own21 A conversion claim requires establishing that the plaintiff o wn ed or had legal
posses sion of t h e pro perty or was entitled t o pos se ss it , that the defenda nt unlawfully
and without authorization assumed and exe rcised dominion and control over the property to the exclusion of or inconsistent with the plaintiff ’ s rights a s an owner, that the p laintiff d emand ed return of the proper ty, a nd that the defendant refused to

ret urn the property. Morrison , 2015 WL 4043260, at *4 n.7 ; see Fernandez v. Peters , No. 03

- 09

- 00687

- CV, 2010 WL 4137491, at *5 (Tex. App.

— Austin Oct. 19, 2010 , no pet.) (mem. op.) (affirming appellee ’ s summar y judgment on a pp ellant ’ s convers ion
clai m when she testified in her affidavit that she acquir ed the real property at a foreclosure sale, that there was personal property located on it, that there was no
claim or notic e of cla im to the p ersonal property, a nd that sh e dis po sed of it ) ; cf. Tex

. Pearl, LLC v. Koegel , No. 03

- 14

- 00556

- CV, 2015 WL 6119491, at *5 (Tex. App.

— Austin Oct. 14, 2015, no pet.) (affirming ju dgment on conversion claim when tenant paid rent through the en d of J anuary and landlord ’ s prope rt y manager test if

ied that the cleaning crew “ got rid of ” things they found in the apartment prior to the end of January )

. In the no

- evidence p art of its motion, The Castillian argued t hat the Douglases
ha d n o evidence (1) that T he Ca stil lian had taken a ny u nlawful a ction , (2) that the
and a clai m t o the property has not been asserted or an act of ownership of the property has not been exer cised , see T ex. Prop. Code Ann. § 72.101(a) , do es not ap ply here because three years did not pass between Dolores ’s death (May 16, 2 014) an d The Castill ian ’ s di sposal of the property (April 28, 2017)

.22 Douglas es were owners of the property on A pril 28, 2017 , when it was destroyed , (3) that the Douglases had demanded a return of the property, or (4) t hat The
Castillian had refused to re turn the pro perty. In t h e traditio nal p ar t of its motion , The
Cast illian argued tha t the Douglases h ad no claim for statutory theft when the
Castilli an did not unlawfully appropriate any one ’ s property because it had acquired

ow nership and possession of the condo at th e tim e it e ntered and d isp o s e d of the

“ abandoned pe rsonal property insi de

. ” 22 It a rgued that th e Douglases had no claim
for conversion because they had made no demand f or the property ’ s return an d had failed to give any notice that they had a claim to it

. T he Cast i ll ian attached the
af fi davit of one of its bo ard memb ers, sta ting that The Castillian had received no claims or n otices of any claims to the personal property in the condo before the
property ’ s removal on April 28, 2017. 23
In t heir response, t he D o u g lases argued that the re was no summary

- ju dgmen t evidence that the y had aba n d oned the pro perty. The Castillian demonstrated that the property had been abandoned by attaching t o its summary

- j udgment motion photographs taken on the day Jun k Gur u

22 In its fifth amended answer, The Castillian raised the defense of abandonment. S ee Cargal v. Carg al

, 750 S.W.2d 382, 384 (Tex. App

. — Fort Worth 1988, no writ) ( stating that a bando nm ent is an affirmative defense that must be pleaded).

23 Although the Douglases objected to this affidavit , the trial court overruled their objection , and the Dougl a ses do no t app e al that ruli ng.23 hauled t h e p roperty a way, showing th e con dition o f the condo and the property , as

we ll as its ample notice of i ts i ntent to foreclose on th e condo that contained the
property , with no response from the Dougla ses during that time or after t he
foreclosure , when it ob tai ned title to the condo in whi ch the personal property had
been left

. 24 See Tex. Penal Code Ann. § 1.07(a)(35) (A) (defining “ owner ” to include someone who has possession of the property). And t he Douglases provided no
evid ence th at they had deman ded the p rop erty or that T h e Castilian ha d refused to return the property

. Accordingly, b ecause the Douglases fai led to ra ise a genuine issue
of material fact with re gard to a t least one element each of the ir TTLA and
conversion cla ims, th e trial court did not err by granting summar y judgment, an d we overrule this portion of their first and second issues.

24 The record reflects that The Castillia n had n o ma ilin g address es f or the Douglases beyond Dolores ’ s addresses at the ti me of her death and that it disposed of her personal property only after acquiring the condo at foreclosure (Sept emb er 1 , 2015) , ove r a year after her death. Cf. Tex. Prop. Co de An n. § 9 2.014(c) (5) (stat ing that a landlord may discard a deceased tenant ’s property if it has mailed a written request by certified mail, return receipt requested, to a person designated by th e te nant to cont act in the event of the tenant ’s death, req uesti ng the proper ty ’s remov al; the cont acted person fails to remove the property within 30 days ; and prior to the date of discarding the property, the landlord has not been contacted by anyone cla imin g the proper ty) , § 93.00 2 (e) ( stating that a landlord m ay re mo ve and store any prop erty of a commercial tenant that remains on aba ndoned premises and may dispose of it if the tenant does not c laim it within 60 days); Tex. C ode Crim. Proc. Ann. art. 18. 17 (a )

– (b) (stating t hat unclaimed or abandon ed personal propert y sei ze d by a peace officer that remains unclaimed for 30 days shall be d elivered for disposition to a designated official wh o is required to mail a notice to the property owner ’s last known addres s by
ce rtified m ail, warning that the property will be disp o sed of within 90 days and w here the sales proceeds will be placed ).24 D . Negligence
The Douglases argue that they we re tenants at sufferance t o whom The Castillian owed a duty to file a forci ble

- deta iner ac tion , entitling them t o re cov er for negligen ce. The Castil lian argued in the no

- evidence portion of its summary

- judgment motion that the Dougl ases had no eviden ce that it was n egligent in failing to file a
forcible

- detai ner action be cause t he Douglases had no e vidence that they wer e e ver

ten ants or that there wa s a la ndlord

– tenant relationship at any time

. It argued in the
traditiona l part that the Douglases cou ld no t recover for negligence for failure to file a
for cible

- d e tain er action because the y were not tenants or te n ants at su ffe ra n ce

— t h ere were no agreement s of any kind between them that could be construed as having
created a l andlord

– tenant relationship

. The Dougl ases responded that the purchaser at a forec l o sure sale must dispos sess all occupants by u sing the forcib l e

- detain er procedure and that there is n o

su mmary

- judgment evidence that The Castil lian d emanded p ossession of the condo
after the f oreclo sure sale. A person commits a forcible ent ry an d detainer if the perso n enters the real
prope rty of another w ithout legal auth ori ty or by forc e and refuses to surrender possession on demand. T ex. Pr op. Code A n n. § 24.001. A person who refuse s to surrender possession of real property on demand comm its a f orcible detainer if h e (1) is a tenant or su b tenant wil l ful l y and without f or ce holding over after the25 termin ation of the tenant ’ s right of pos sessio n; (2) is a tenant at will or by suffer ance , including an occupant at the time a lien su perior to th e ten an t ’ s l ease is foreclos ed ; or (3) is a tenant of a person w ho acquired possessi on by forcible entry. Id. § 24.0 02(a).
U nder S ection 24.005, if the occupant is a tenant under a written lease or o ral rental
agreemen t , a tenant at will or by suffer ance, or a te nant of a person who acquired possession by forcible entry, the landlord must ge nerally give a t least three d ays ’

wr i tten notice to vacate the pr emises before filing a forcible

- detainer sui t. Id. § 24.005(a)

– (c )

. Key to all these provisions is the requi re ment that a tenant be in possession of the
real property in question because t he only issue in a forcible

- d eta iner action i s which
pa rty has the superior right to immediate possession. Jimenez v. Mc G eary , 542 S.W. 3d 810, 812 (Tex. App.

— Fort Worth 20 18, p et . denied)

. The Proper ty Code defines

“ tenant ” as “ a person who is authorized b y a lease to occupy a dwelling t o the
exclusion of others and . . . who is obligated under the lease to pay rent

. ” Tex. Prop.
Code Ann. § 92.001(6 ) ; see also id. § 92.001( 3) (d ef ining “ lease ” as “ any written or oral

a greement between a landlord and a tenan t t hat esta blishes or modifies t he terms, conditions, rules, or other pr ovisions regarding the use and occupancy of a dwelling ” ) ; Soto v. Pantalion , No. 01

- 20

- 003 21

- CV, 2 02 1 WL 2931363, at *5 ( Tex. App.

— Houston [1st Dist.] July 13, 2021, no pet.) (mem. op. ) ( explaining that a lease is no t necessari ly required to establish a landlord

– tenant relationship but defining other relationships

— hol dover tenant at will, holdover tena nt at suffer ance

— i n ter ms of the occupant ’ s26 actual possession of the property) ; Martin v. Brown , No. 03

- 15

- 00492

- CV,
2 016 WL 4690308, at *2 (Tex. App.

— Austin Aug. 25, 2016, pet. denied) (mem. op.) ( explaining that , in a legal context, an “ occupant ” is gene ra lly the person who is actually present and living on the propert y)

. 25
Becaus e there i s n o evidence that the Dou glases were ever tenants of any sort ,

see Tex. Prop. Code Ann. § 92.001(6) , o r that the y occupied the condo at any point
after Charles turn ed of f the electricity in 20 15 , there is no evidence that The Castillian
owed them a d uty t hat would subject i t to a neglig ence claim . W e overrule the
remainder of the Douglases ’ first and second issues.
IV. Conclusion Having overruled all of the Dou g lase s ’ is su es, we affirm the tri al court ’ s judgment.

25 Charles testified that between May 16, 2014 and June 25, 201 5, h e did not occupy the condo for any amount of time other than oc casionally staying overnight when he attended a Dallas Cowb oy s f oo tball game. H e tu rned off the condo ’ s elec tricity at some point before June 25, 2015

. Between June 25, 201 5, and March 3, 2017, he did not occupy the condo or stay in it overnight , and betwe en March 3 , 2017 and J uly 2 7, 2017, he did not eve n go by the condo. Derek testified that he lived in Cin cinnati ; he d id not occupy the condo at any point

.27 /s/ Elizabeth Kerr E lizabeth Kerr Ju st ice
Delivered : Sep tem ber 22, 2022