law-missing-SJ-exhibits | failure-to-prove-damages |
Proof of actual damages
As proof of actual damages, the Association provided with its summary judgment motion an affidavit from its
records custodian, who, after making recitals to satisfy the evidentiary rule for business records,
declared that “[t]he account reflecting the maintenance charges and costs of collection assessed against
[McGlown’s] property is attached hereto as Exhibit ‘1.’” Exhibit 1, however, is not attached to the record
custodian’s affidavit, and was not included with either the original or amended motion for summary
judgment. In addition, we have reviewed the requests for admission and none ask McGlown to admit the
amount of actual damages sought by the Association. Aside from the reference to the omitted Exhibit 1
accounting, no evidence supports the amount of actual damages awarded in the summary judgment.
Resolving all doubts against the Association, therefore, we hold that it failed to meet its summary judgment
burden on damages because it did not submit competent proof of them. See TEX. R. CIV. P. 166a(c).
McGlown v. Ashford Park (Tex.App.- Houston [1st Dist.] Jun. 11, 2009)(summary judgment for home owner's
association reversed; failure to prove damages and attorney's fees,
attorney fee award in summary judgment proceeding not proper if amount disputed)
REVERSE TC JUDGMENT AND REMAND CASE TO TRIAL COURT FOR FURTHER PROCEEDINGS:
Before Justices Taft, Bland and Sharp
01-08-00619-CV Willie McGlown Jr. v. Ashford Park, et al.
Appeal from County Civil Court at Law No 2 of Harris County
Trial Court Judge: Hon. Jacqueline Lucci Smith