On Appeal from the County Court at Law No. 2 Galveston County
The appellants owned a unit in the Maravilla Condominiums in Galveston, Texas. The appellee Association was the governing body of the condominiums. The Association filed suit against the appellants in county court to recover monthly assessments and late fees the Association claimed were owing in connection with the appellants’ ownership of a unit in the condominiums. The Association also sought to recover the attorney’s fees, costs of collection, prejudgment interest, and post judgment interest. The appellants included in their answer to the suit a verified denial of the account that was the foundation of the Association’s action. They asserted the defenses of offset and credit, accord and satisfaction, promissory estoppel, waiver, and payment. The Association moved for a traditional summary judgment, asserting that there was no genuine issue of material fact regarding each element of their claim and that the Association was entitled to judgment as a matter of law. The appellants did not file a response to the Association’s motion, nor did they appear at the summary-judgment hearing. The trial court granted summary judgment, awarding $5,930 as the principal amount due, prejudgment and post judgment interest, $4,609.25 for the attorney’s fees and costs of collection in the past, and any additional attorney’s fees or costs of collection incurred after a day until the date the judgment was paid. The appellate court noted that the summary-judgment evidence included a certified copy of the Declaration, which required owners like the appellants to pay assessments levied by the Board of Directors of the Association. Under their first issue, the appellants complained that the summary-judgment evidence did not contain specific evidence that the assessments in question were levied by the association’s Board of Directors. Though the Association’s accounts receivable manager, could have testified more specifically that the Association’s Board of Directors levied the assessments, her testimony and the Declaration conclusively proved a promise, express or implied, by the appellants to pay the indebtedness. Further, the court found that the billing statement reflected that $682.50 of the attorney’s fees that the Association’s counsel testified were reasonable and necessary were incurred for the review of a separate lawsuit by the appellants against the Association and the preparation of an answer to the appellants’ petition in that lawsuit. The summary-judgment evidence did not show how that attorney’s fees were reasonable fees for the collection of the assessments owed by the appellants to the Association. Thus, the court concluded that the trial court erred in awarding fees based upon that amount, and sustained the second issue to that extent. Finally, the court determined that the trial court did not require that the additional fees be reasonable, a requirement under the Declaration and any potentially applicable statute and even if the attorney’s fees would accrue after filing of the motion for summary judgment or after judgment, Texas law required proof of the amount of any such reasonable fees before they could be recovered. The Association provided no evidence of the amount of any reasonable fees that might be incurred in the future, and the trial court rendered a blanket award of all fees incurred, even if unreasonable. The trial court erred in awarding future fees and costs. Accordingly, the court modified the trial court’s judgment to delete those fees and costs and affirmed the judgment as modified.