DAVID SCHINDLER AND SHERRY SCHINDLER, Appellants v. STACIE BAUMANN, Appellee

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Laws-info.com » Cases » Texas » 5th District Court of Appeals » 2008 » DAVID SCHINDLER AND SHERRY SCHINDLER, Appellants v. STACIE BAUMANN, Appellee

State: Texas

Court: Texas Northern District Court

Docket No: 05-08-00265-CV

Case Date: 12/09/2008

Plaintiff: DAVID SCHINDLER AND SHERRY SCHINDLER, Appellants

Defendant: STACIE BAUMANN, Appellee

Preview:DAVID SCHINDLER AND SHERRY SCHINDLER,
Appellants v. STACIE BAUMANN, Appellee
AFFIRM; Opinion issued December 9, 2008
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-08-00265-CV
DAVID SCHINDLER AND SHERRY SCHINDLER, Appellants
V.
STACIE BAUMANN, Appellee
On Appeal from the 382nd Judicial District Court
Rockwall County, Texas
Trial Court Cause No. 1-06-1104
OPINION
Before Justices Morris, Whittington, and Lang-Miers
Opinion By Justice Morris
This is an appeal from a take-nothing summary judgment on David and Sherry Schindler's claims against Stacie
Baumann. See Footnote 1 The Schindlers sued Baumann for damages to their condominium after water allegedly
leaked into their unit from Baumann's condominium. In two issues, appellants assert the trial court erred in granting
Baumann summary judgment and in denying their motions for rehearing and to reopen the evidence. For the reasons
that follow, we affirm the trial court's judgment.
I.
As revealed by the summary judgment record, Baumann owned the condominium unit above the one owned by
appellants. Appellants' condominium flooded after a water filtration unit in Baumann's condominium leaked. The
Schindlers sued Baumann for damages asserting causes of action for breach of contract, negligence, and violations of
the Texas Uniform Condominium Act.
Baumann filed a no-evidence motion for summary judgment on all of appellants' claims. Appellants filed a response
that included the affidavit of David Schindler, an uncertified copy of the Amended and Restated Condominium
Declaration, and photos of the water damage. Baumann filed objections to appellants' summary judgment evidence.
After a hearing at which appellants did not appear, the trial court signed an order sustaining Baumann's objections and
granting her summary judgment. Appellants filed a motion for rehearing and a motion to reopen evidence to include
certified copies of the Declaration, Annexation Declaration, and the Schindler and Baumann deeds. The trial court
denied appellants' motions. This appeal followed.
II.
In their first issue, appellants assert the trial court erred in granting Baumann's no-evidence summary judgment
motion because they presented sufficient evidence to support each element needed for their breach of contract,
negligence, and statutory claims. See Footnote 2
We review a no-evidence summary judgment under the same legal sufficiency standard used to review a directed
verdict. See TEX.R. CIV. P. 166a(i); Gen. Mills Rests., Inc. v. Tex. Wings, Inc., 12 S.W.3d 827, 832-33 (Tex.App.-
Dallas 2000, no pet). Thus, we must determine whether the nonmovant produced more than a scintilla of probative
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evidence to raise a fact issue on the material questions presented. Gen. Mills, 12 S.W.3d at 833. We consider the
evidence in the light most favorable to the nonmovant. See id.
Among the elements necessary to succeed on their breach of contract claim, appellants needed to present evidence
of a valid contract existing between them and Baumann. See Petras v. Criswell, 248 S.W.3d 471, 477 (Tex. App.-
Dallas 2008, no pet.). Appellants contend the amended and restated condominium declaration and annexation
declaration for their condominium project, filed with the Rockwall County Clerk by the project developers, satisfy this
element. Nothing in these declarations, however, purports to create a contract between appellants and Baumann or
vests appellants with the right to sue to enforce the declarations. Although appellants cite two cases for the proposition
that such declarations are treated as contracts, those cases are inapposite here as they did not involve claims between
two owners but rather claims between condominium or homeowners' associations and owners. See Aghili v. Banks, 63
S.W.3d 812 (Tex. App.-Houston [14th Dist.] 2001, pet. denied); Herbert v. Polly Ranch Homeowners Ass'n, 943
S.W.2d 906 (Tex. App.-Houston [1st Dist.] 1996, no writ). Absent any evidence of a valid contract between appellants
and Baumann, the trial court did not err in granting summary judgment against appellants on their breach of contract
claim.
Appellants also assert a negligence claim against Baumann. In their petition, they alleged Baumann was negligent
in installing and failing to maintain the filtration unit, failing to change the filter, and failing to maintain the water
system. To prevail on their negligence claim, appellants must establish Baumann breached a legal duty proximately
resulting in appellants' damages. See Praesel v. Johnson, 967 S.W.2d 391, 394 (Tex. 1998). The only evidence that
purportedly addresses Baumann's alleged negligence, however, is contained in the affidavit of David Schindler.
Schindler's affidavit identifies the source of the water causing the flooding as Baumann's water filtration unit and
contends that water stains in the cabinet beneath the unit suggest the unit was leaking for “an extended period of time.”
Schindler also states that the manufacturer of the filtration unit advises the filter should be replaced every 1,000
gallons or six months. Schindler concludes every reasonable unit owner would have seen the water leak long before
there was a large leak and discovered the leak upon replacing the filter.
To be competent summary judgment evidence, an affidavit must be based on personal knowledge, present facts
admissable in evidence, and affirmatively demonstrate the affiant's competency to testify as to the matters stated
therein. Tex. R. Civ. P. 166a(f). Schindler's affidavit does not provide any facts about the condition of the water
filtration unit and resulting water damage. Additionally, there are no facts to support Schindler's conclusion that
Baumann would have discovered the leak had she replaced the filter as recommended. As such, Schindler's statements
on Baumann's responsibility for the water leak damage are conclusory. A conclusory statement is one that does not
provide the underlying facts to support the conclusion. Rizkallah v. Conner, 952 S.W.2d 580, 587 (Tex. App.-Houston
[1st Dist.] 1997, no pet.). Conclusory statements are not competent summary judgment evidence because they are not
credible or susceptible to being readily controverted. Id. Moreover, there is no evidence that Baumann did not change
the filter as recommended. Because appellants did not present summary judgment evidence that raised a fact issue on
the challenged elements of their negligence claim, the trial court did not err in granting Baumann summary judgment.
Appellants also assert they are entitled to recover damages caused by the water leak under section 82.117 of the
Texas Uniform Condominium Act, which requires Baumann to pay for damage caused by negligence or wilful
misconduct. We note at the outset that the fact that a person has suffered harm from an alleged violation of statute does
not automatically give rise to a private cause of action. See Witkowski v. Brian, Fooshee and Yonge Props, 181
S.W.3d 824, 831 (Tex. App.-Austin 2005, no pet.). Appellants have presented no argument or authority to support their
position that a private cause of action exists under this section of the Act. Moreover, even if we were to assume a
private cause of action exists under the statute, appellants would still be required to present evidence of Baumann's
negligence or wilful misconduct in order to recover damages. See Tex. Prop. Code Ann. § 82.117(3) (Vernon 2007). In
their petition, appellants alleged Baumann failed to maintain her unit, resulting in the water leak. Once again, the only
evidence appellants present with respect to Baumann's alleged negligence is contained in the Schindler affidavit. We
have already determined this affidavit is insufficient to raise a genuine issue of material fact on the required elements
of appellants' negligence claim. Thus, like their negligence claim, their statutory claim based on Baumann's alleged
negligence, even if permissible, cannot survive Baumann's no- evidence summary judgment motion. We resolve
appellants' first issue against them.
In their second issue, appellants contend the trial court erred in denying their motion for rehearing and motion to
reopen evidence. Specifically, appellants challenge the trial court's rulings on Baumann's objections to their summary
judgment evidence and argue that they were deprived of an opportunity to cure any alleged defects in their evidence.
We have already considered in our disposition of appellants' first issue all the evidence appellants sought to include by
their motions for rehearing and to reopen evidence. Accordingly, we conclude that even if the trial court erred in
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denying these motions, appellants have failed to establish they were harmed by the trial court's rulings. See Tex. R.
App. P. 44.1. We resolve appellants' second issue against them.
We affirm the trial court's judgment.
JOSEPH B. MORRIS
JUSTICE
080265F.P05
Footnote 1 Although the style of the case on appeal and in the court below identify appellee as Staci Baumann,
documents in the appellate record containing appellee's signature indicate the correct spelling of appellee's name is
Stacie Baumann.
Footnote 2 Appellants' argument relies on all of their summary judgment evidence, including the evidence to which
Baumann objected and the trial court excluded, as well as the evidence appellants submitted in connection with their
motion to reopen the evidence. For purposes of our analysis under this issue, we will consider all of appellants'
proffered evidence.
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