Bryan D. Malatesta, Willie Voncille Malatesta v. Dove Meadows Homeowners Association, Inc.

Opinion issued December 22, 2009 In The Court of Appeals For The First District of Texas NO. 01-08-00772-CV BRYAN D. MALATESTA and WILLIE VONCILLE MALATESTA, Appellants V. DOVE MEADOWS HOMEOWNERS ASSOCIATION, INC., Appellee On Appeal from the 234th District Court Harris County, Texas Trial Court Cause No. 2005-67601 MEMORANDUM OPINION Bryan D. Malatesta and Willie Voncille Malatesta, record owners of a parcel on Meadowhill Drive in the Dove Meadows subdivision (the Meadowhill Drive property), appeal the trial court’s summary judgment granting Dove Meadows’s request for injunctive relief for deed restriction violations and attorney’s fees. The Malatestas contend that the trial court erred in failing to consider their appearance and response in opposition to Dove Meadows’s motion for summary judgment. They also challenge the affidavits Dove Meadows submitted with its motion, contending that they cannot support the summary judgment. Finding no error, we affirm. BACKGROUND At some point after the Malatestas purchased the Meadowhill Drive property, they arranged for Thomas and Suzanne Hayes to buy it under a contract for deed (now defined as an executory contract in the Texas Property Code)[1], under which the Hayeses would not become the record property owners until they had paid the full purchase price. At the time Dove Meadows instituted this suit, the Hayeses resided at the Meadowhill Drive property and their equitable interest under the contract appeared in the Harris County property records. During late 2004, Susan Franz, the managing agent for Dove Meadows, personally observed conditions at the Meadowhill Drive property that violated the subdivision’s deed restrictions. On December 9, 2004, Dove Meadows sent by certified mail a written notice to the Malatestas demanding that they correct the deed restriction violations by December 29. The letter cited the following violations: · storing and repairing inoperative vehicles on the driveway; · using a backyard as a residence; · storing a utility trailer on the driveway; · using the front yard to park a boat and other vehicles; · allowing trash to accumulate on the driveway; · failing to repair broken fence slats; and · failing to properly restrain dogs on the property. Dove Meadows included a copy of the subdivision’s deed restrictions with its letter. When the Malatestas did not comply with its demands, Dove Meadows sent another deed restriction demand letter on January 18, 2005. In that letter, Dove Meadows gave the Malatestas an additional ten days to cure the violations. Willie Malatesta signed the certified mail receipt for the final demand letter on January 20, 2005. Dove Meadows repeated its demands in additional letters to the Malatestas dated February 21, 2005, July 5, 2005, and August 1, 2005. In each, Dove Meadows cited the conditions in violation of the deed restrictions, and demanded that the Malatestas cure them within a specified time. Dove Meadows also advised the Malatestas of its intent to file suit for injunctive relief and attorney’s fees. When nothing had been done to cure the violations by October 19, 2005, Dove Meadows filed suit against the Malatestas, then supplemented its petition in February 2007 to name the Hayeses as additional defendants. Dove Meadows moved for summary judgment against all of the defendants in April 2008. As summary judgment evidence, Dove Meadows provided (1) proof of property ownership; (2) a copy of the subdivision’s deed restrictions; (3) an affidavit executed by Franz, in which she averred to her personal observation of the violations and attached copies of photographs she had taken of the Meadowhill Drive property showing the violative conditions, as well as the demand letters sent to the Malatestas. The Malatestas timely filed a pro se response to the summary judgment motion. When Dove Meadows objected to the Malatestas’ affidavits as conclusory and devoid of facts, the trial court postponed the submission date until June 9, 2008 to allow the Malatestas time to retain counsel. On June 2, 2008, the Malatestas, still proceeding pro se, filed a supplemental response with new affidavits with the trial court and served it on Dove Meadows’s counsel by first class mail. Dove Meadows objected to the Malatestas’ supplemental response as untimely. On June 12, 2008, the trial court granted summary judgment in favor of Dove Meadows. The trial court found that the Malatestas and the Hayeses “have violated the Restrictions for Dove Meadows, Section One (1), on file in the Deed Records of Harris County, Texas . . . as well as the Texas Neighborhood Nuisance Abatement Act, Chapter 343 of the Texas Health and Safety Code.” Based on its findings, the trial court permanently enjoined the Malatestas and the Hayeses from “causing or allowing” the cited deed restriction violations and granted Dove Meadows its attorney’s fees, entering judgment jointly and severally against the Malatestas and the Hayeses. The Hayeses did not challenge the judgment and are not parties to this appeal. DISCUSSION Summary judgment standard of review We review a trial court’s summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident Life Accid. Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). Under the traditional standard for summary judgment, the movant has the burden to show that no genuine issue of material fact exists and that the trial court should grant a judgment as a matter of law. Tex. R. Civ. P. 166a(c); KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). When reviewing a summary judgment, we take as true all evidence favorable to the nonmovant and indulge every reasonable inference and resolve any doubts in the nonmovant’s favor. Dorsett, 164 S.W.3d at 661; Knott, 128 S.W.3d at 215; Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997). Dove Meadows moved for summary judgment under both traditional and no-evidence grounds. Traditional summary judgment is proper only if the movant establishes that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c). The motion must state the specific grounds relied upon for summary judgment. Id. A defendant moving for traditional summary judgment must conclusively negate at least one essential element of each of the plaintiff’s causes of action or conclusively establish each element of an affirmative defense. Sci. Spectrum, Inc., 941 S.W.2d at 911. After adequate time for discovery, a party may move for a no-evidence summary judgment on the ground that no evidence exists to support one or more essential elements of a claim or defense on which the opposing party has the burden of proof. Tex. R. Civ. P. 166a(i). The trial court must grant the motion unless the nonmovant produces summary judgment evidence raising a genuine issue of material fact. Id. More than a scintilla of evidence exists if the evidence “would allow reasonable and fair-minded people to differ in their conclusions.” Forbes Inc. v. Granada Bioscis., Inc., 124 S.W.3d 167, 172 (Tex. 2003). Objections to summary judgment evidence The Malatestas first contend that the trial court erred in granting summary judgment because Franz’s affidavit is defective. Specifically, the Malatestas claim that, because the jurat following Franz’s signature recited that “Anita Ashmore,” rather than “Susan Franz,” personally appeared before the notary, the affidavit was fatally defective and should have been struck. “Affidavit” means a statement in writing of a fact or facts signed by the party making it, sworn to before an officer authorized to administer oaths, and officially certified by the officer under his seal of office. Tex. Gov’t Code Ann. § 312.011(1) (Vernon 1988). To constitute competent summary judgment evidence, affidavits must be made on personal knowledge, set forth facts as would be admissible in evidence, and show affirmatively that the affiant is competent to testify to matters stated therein. Tex. R. Civ. P. 166a(f). In Griffin v. Baylor College of Medicine, we encountered an error in the same portion of the affidavit as that complained of here. See 945 S.W.2d 158 (Tex. App.—Houston [1st Dist.] 1997, no pet.). In that case, the portion of the affidavit before the notary’s signature recited, “[t]his instrument was acknowledged before me on the 6th day of July, 1995, by J. Mario Gonzalez, M.D.” Id. at 159. The appellant complained that the affidavit was infirm because it was only acknowledged and not properly sworn by the affiant and, thus, lacked the required jurat. We examined the recitation at the beginning of the affidavit, which stated: BEFORE ME, the undersigned authority, on this day personally appeared J. Mario Gonzalez, M.D., known to me as the person whose name is subscribed to the following instrument, and having been duly sworn, upon his oath deposes and states the following: Id. at 160. Relying on the Texas Supreme Court’s holding in Ford Motor Co. v. Leggat, 904 S.W.2d 643 (Tex.1995), we held that “[t]his language, combined with the notary’s signature and seal, makes the document an affidavit.” Griffin, 945 S.W.2d at 160 (citing Ford Motor Co., 904 S.W.2d at 645–46). Here, Franz’s affidavit begins: “BEFORE ME, the undersigned authority, on this day personally appeared SUSAN FRANZ, who being first duly sworn, did depose and say as follows[.]” Like the language in Griffin, we hold that this language meets the requirements of an affidavit under Texas law and, accordingly, Franz’s affidavit supports the trial court’s summary judgment ruling. See id. at 159–60; see also Ford Motor Co., 904 S.W.2d at 645 (holding that defective jurat, as opposed to absence of jurat, is defect of form and noting that affidavit was proper even without jurat because it contained acknowledgment and recited that affiant was “first duly sworn,” and “on his oath” stated what followed); Billingslea v. State, 268 S.W.2d 668, 669 (Tex. Crim. App. 1954) (holding that variance between affiant’s signature and name of affiant recited in jurat is defect of form that can be corrected).[2] Deadline for filing response to summary judgment The Malatestas next complain that the trial court erred in failing to consider their response and supplemental response which, they claim, raise material fact issues precluding summary judgment. As evidence, the Malatestas attached affidavits to their responses in which they averred that they oversee the upkeep of the Meadowhill Drive property by communicating regularly with the Hayeses and with a neighbor who is a licensed attorney and irregularly monitors the property conditions for them. These statements affirmatively show a lack of personal knowledge. The mere recitation that an affidavit is based on personal knowledge is inadequate if the affidavit does not positively show a basis for such knowledge. See Leavings v. Mills, 175 S.W.3d 301, 312 (Tex. App.—Houston [1st Dist.] 2004, no pet.) In their affidavits, the Malatestas conclusorily deny having caused or allowed the cited deed restriction violations. An affidavit is conclusory if it fails to explain the basis of the affiant’s statements to link his conclusions to the facts. Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex. 1999). Because such statements are not proof, they cannot create a disputed issue of material fact. See Laidlaw Waste Sys. v. City of Wilmer, 904 S.W.2d 656, 661 (Tex. 1995) (holding that conclusory statements are not proof); see also CA Partners v. Spears, 274 S.W.3d 51, 63 (Tex. App.—Houston [14th Dist.] 2008, pet. denied); 1001 McKinney Ltd. v. Credit Suisse First Boston Mortgage Capital, 192 S.W.3d 20, 27 (Tex. App.—Houston [14th Dist.] 2005, pet. denied) (citing Wadewitz v. Montgomery, 951 S.W.2d 464, 466 (Tex. 1997)). In its reply to the Malatestas’ response, Dove Meadows objected to the Malatestas’ affidavits and requested that they be disregarded on the grounds that (1) they fail to state that the statements therein are true and correct; (2) they do not show that the Malatestas had any personal knowledge of the conditions on the property, but rather, show that the Malatestas obtained their information concerning the property conditions from others; (3) their denials of the cited violations are conclusory and therefore no evidence. The trial court’s judgment states that the Malatestas “failed to file a proper answer/response” to Dove Meadows’s motion and reflects that it did not consider the Malatestas’ filed responses in rendering the summary judgment. We hold that the record supports the trial court’s decision to disregard the Malatestas’ affidavits on these grounds.[3] CONCLUSION We hold that the trial court properly granted summary judgment in favor of Dove Meadows. We therefore affirm the judgment of the trial court. Jane Bland Justice Panel consists of Chief Justice Radack and Justices Bland and Massengale. [1] See Tex. Prop. Code Ann. § 5.062(a)(2) (Vernon Supp. 2009). [2] Dove Meadows filed and served a corrected affidavit when the error was brought to its attention. [3] Because they have not presented any basis for reversal, we need not consider the Malatesta’s challenge to the lack of a hearing on their motion for new trial. See Tex. R. App. P. 44.1.