We issued our original opinion in this case on August 29, 2023. Appellant Dun Huang Plaza Association, Inc. filed a motion for rehearing. We grant its motion for rehearing, withdraw our previous opinion, vacate our previous judgment and issue this opinion and judgment to clarify our holding in this matter. The issue in this appeal is whether failure to follow certain voting procedures in the Uniform Condominium Act (the Act) results in a void action that can be challenged beyond the one-year limitations period set out in the Act.[1] We conclude it does not. Appellant Dun Huang Plaza Association, Inc. amended its condominium declaration to increase the square footage attributed to the building owned by appellee SUN9028, Inc. (the building owner) in 2017. The association did not secure the building owner’s approval to the change, nor did it receive the statutory unanimity requirement for altering the allocated interest of a condominium owner within the regime pursuant to the Act. After the building owner filed suit two years later, the trial court rendered a final judgment voiding the amendment ab initio. On appeal, the association argues the building owner’s declaratory-judgment claim was time barred and it is entitled to a take-nothing judgment on the building owner’s claim as a matter of law. In addressing what appears to be an issue of first impression for this court, we conclude the amendment was voidable, not void, and the building owner’s challenge to the validity of the amendment was barred by the statute of limitations. We therefore reverse the judgment of the trial court and render the judgment the trial court should have rendered, dismissing the building owner’s declaratory-judgment claims. I. BACKGROUND Dun Huang Plaza is a shopping and dining destination in the Chinatown area of Houston, composed of nonresidential condominiums.[2] In 2014, the building owner purchased building B, a former grocery store, which conveyed an 11.8105% allocated interest in the common elements.3 [3]The other four buildings in Dun Huang Plaza have various owners and are divided up into smaller condominium units. The association governs and administers the condominium regime and its common elements.[4] In 2017, the association adopted by resolution a fifth amendment to the condominium declaration,5 [5]increasing the square footage of building B and thereby increasing its allocated interest to 17.0567%. This change resulted in increased expenses to the building owner for its share of the common-area expenses. The building owner became aware of the proposed amendment after many of the unit owners in the condominium regime had already approved by signature the proposed amendment. Although the building owner was aware of the amendment before its recordation in the county records in September 2017, the building owner explains that it was not aware of its legal right to challenge the amendment until much later. As a result, the building owner did not file suit against the association until June 2019 seeking declaratory relief to void the amendment ab initio. The building owner also sought damages for its allegations of fraudulent misrepresentation and fraud by nondisclosure. The association filed a traditional summary-judgment motion arguing that the building owner’s one-year period to challenge the validity of the amendment had expired, precluding the building owner’s declaratory-judgment claims. The association also sought summary judgment on the building owner’s fraudulent misrepresentation and disclosure claims because it alleged the building owner’s pleadings negated its fraud causes of action. In response, the building owner filed a motion for partial summary judgment on the basis that it conclusively proved that the amendment was void ab initio. The building owner further argued that Property Code section 82.067(c) did not apply because the amendment was never adopted by the association as provided in the Act. In March 2020, the trial court granted the association’s traditional motion for summary judgment and denied the building owner’s partial motion for summary judgment.[6] The building owner filed a motion for new trial arguing that the trial court erred in rendering summary judgment. The trial court agreed, granted the building owner’s motion for new trial, set aside the summary judgment in favor of the association, granted the building owner’s partial motion for summary judgment and declared the amendment void ab initio. The association next filed a no-evidence motion for summary judgment on the building owner’s fraud claims. The trial court granted the association’s no-evidence motion and signed a final judgment in May 2022.[7] Both parties filed notices of appeal; however, the building owner decided not to pursue its appeal and did not brief any appellate issues. We therefore dismiss the building owner’s appeal for want of prosecution and consider only the appellate issue raised by the association. Tex. R. App. P. 38.8(a)(1). II. ANALYSIS On appeal, the association raises a single issue asserting the trial court erred in declaring the amendment void because the building owner’s challenge was outside the statute of limitations. The building owner’s summary-judgment motion was filed on the grounds that the association did not comply with the Act in adopting the amendment and specifically that the association did not comply with (1) the statutory requirement that changes to an owner’s allocated interest require approval by all owners within the regime and (2) the statutory procedure for adopting an amendment to the declaration. Because the exhibits to the building owner’s partial summary-judgment motion are not in the record, we must conclude the exhibits support the building owner’s claims that the association did not comply with the Act.[8] See Enter. Leasing Co. of Houston v. Barrios, 156 S.W.3d 547, 550 (Tex. 2004) (“If the pertinent summary judgment evidence considered by the trial court is not included in the appellate record, an appellate court must presume that the omitted evidence supports the trial court’s judgment.”). We now consider whether the limitations period in the Act barred the building owner’s challenge notwithstanding the association’s noncompliance with the Act. A. Standard of review We review a trial court’s ruling on summary judgment de novo. Traveler’s Ins. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). In conducting that review, we examine the entire record in the light most favorable to the nonmovant, crediting evidence a reasonable juror could credit and disregarding contrary evidence unless a reasonable juror could not. Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013). Our review is limited to the issues presented to the trial court in the motion for summary judgment, as the judgment may be affirmed only on grounds presented in the motion. Tex. R. Civ. P. 166a(c); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 676 (Tex. 1979). A court must grant a “traditional” motion for summary judgment “if [the summary judgment evidence] show[s] that . . . there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law on the issues expressly set out.” Tex. R. Civ. P. 166a(c). “A defendant moving for summary judgment on the affirmative defense of limitations has the burden to conclusively establish that defense.” Exxon Mobil Corp. v. Rincones, 520 S.W.3d 572, 593 (Tex. 2017) (quoting KPMG Peat Marwick v. Harrison Cnty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999)). B. Statutory construction Construction of statutory language is a question of law we review using the de novo standard. Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex. 2009). When construing a statute, the court’s primary objective is to give effect to legislative intent. Colorado Cnty. v. Staff, 510 S.W.3d 435, 444 (Tex. 2017). “The plain meaning of the text is the best expression of legislative intent unless a different meaning is apparent from the context or the plain meaning leads to absurd or nonsensical results.” Molinet v. Kimbrell, 356 S.W.3d 407, 411 (Tex. 2011). When interpreting the legislature’s words, however, we must never “rewrite the statute under the guise of interpreting it,” and it is not appropriate to rely on documents beyond the statutory text for assistance in determining legislative intent unless the statutory text is susceptible to more than one reasonable interpretation. See In re Ford Motor Co., 442 S.W.3d 265, 284 (Tex. 2014); Tex. Mut. Ins. Co. v. Ruttiger, 381 S.W.3d 430, 452 (Tex. 2012). C. Applicable law The Act provides that at least 67% of the votes of units in the association for a condominium regime are required to amend the declaration. Tex. Prop. Code Ann. § 82.067(a). However, if the amendment is designed to “create or increase special declarant rights, increase the number of units, change the boundaries of a unit, alter or destroy a unit or limited common element, [or] change a unit’s allocated interest,” then the amendment must be approved by 100% of the votes in the association. Tex. Prop. Code Ann. § 82.067(e). The parties do not dispute that the amendment at issue changed the building owner’s allocated interest, which should have required approval by 100% of the votes in the association. It is also undisputed that the amendment was not approved by 100% of the votes in the association. The Act further provides that an “action to challenge the validity of an amendment adopted by the association under [section 82.067] must be brought before the first anniversary of the date the amendment is recorded.” Tex. Prop. Code Ann. § 82.067(c). Therefore, under the Act, the building owner had one year from September 17, 2017, when the association recorded the amendment, to bring its challenge. The building owner did not challenge the validity of the amendment until 2019. Unless the amendment was void, the building owner’s challenge is time barred under the plain language of the Act. [9] D. Statutory Analysis The Act bars challenges to the validity of an amendment brought more than one year after recording the amendment. Since the statute does not define “validity,” we look to the definition of the word “valid” to determine its ordinary meaning. See Code Construction Act, Tex. Gov’t Code Ann. § 311.011 (words and phrases construed according to common usage). “Valid” is defined as “[l]egally sufficient; binding.” See Valid, Black’s Law Dictionary (11th ed. 2019). This limitation period, then, is intended to prevent challenges to whether an amendment is legally sufficient or binding brought more than a year after recording the amendment. The building owner challenges the validity or legal sufficiency of the amendment for not receiving unanimous approval from all the owners. The building owner argues that the amendment is void—not because the association did not have the power to amend the declaration—but because the association did not follow the procedures outlined in the Act.[10] The building owner’s argument is premised on its assertion that the amendment “violates the public policy reflected in” the Act, because the amendment did not comply with the statutory requirements in the Act. However, the building owner cites no language in the Act reflecting that an amendment passed without observing the unanimity requirement is void. The building owner only cites cases which address actions taken by property owners’ associations which are contrary to statute, but no authority involving a condominium regime or similar type of limitations period.[11] The Act does specifically provide in other sections that certain actions are void, but says nothing about voiding noncompliant amendments in section 82.067.[12] Given the long-reaching repercussions, the Act does not support the conclusion that failure to comply with statutory procedures and requirements renders an amendment void. Voidable means that a contract is valid and effective unless and until the party entitled to avoid it takes affirmative steps to disaffirm it.[13], [14] See Contract, Black’s Law Dictionary (11th ed. 2019) (defining “voidable contract” as “[a] contract that can be affirmed or rejected at the option of one of the parties”); Murchison v. White, 54 Tex. 78, 81 (1880) (“[a] voidable act is one . . . which may be made finally valid . . . by subsequent ratification or confirmation”). The Act permits condominium associations to amend or change the allocated interest of condominium owners. The amendment could have been ratified or approved by the building owner, which supports the conclusion that the amendment was voidable, not void. The undisputed facts here involve a nonresidential condominium owner who was aware of the amendment before it was recorded. The building owner could have brought its challenge within the statutory limitations period but did not. Statutes of limitation are “the Legislature’s procedural device for establishing a point of repose for past actions and for ensur[ing] that the search for truth is not impaired by stale evidence or the loss of evidence.” Godoy v. Wells Fargo Bank, N.A., 575 S.W.3d 531, 538 (Tex. 2019) (internal quotation marks omitted) (quoting Segal v. Emmes Capital, L.L.C., 155 S.W.3d 267, 281 (Tex. App.—Houston [1st Dist.] 2004, pet. dism’d)). If the validity of an amendment to a condominium declaration could be challenged at any time for failure to follow statutory procedures and requirements, the statute of limitations in the Act would serve no purpose.[15] Therefore, we hold that the amendment was voidable, but not void ab initio, and conclude the trial court erred. We sustain appellant’s sole issue on appeal. III. CONCLUSION We reverse the portion of the trial court’s judgment regarding the building owner’s claims for declaratory relief and render judgment, in part, that the building owner take nothing by way of those claims. Tex. R. App. P. 43.2(c), 43.3. The remainder of the trial court’s judgment has not been challenged and remains unchanged. Charles A. Spain Justice Panel consists of Justices Wise, Bourliot, and Spain.
