The opinion
ACCEPTED
03-14-00650-CV
4396595
THIRD COURT OF APPEALS
March 18, 2015 AUSTIN, TEXAS
3/6/2015 10:46:40 AM
JEFFREY D. KYLE
CLERK
WESLEY SPEARS AND RENEE JACOBS, APPELLANTS
RECEIVED IN
3rd COURT OF APPEALS
V. AUSTIN, TEXAS
3/6/2015 10:46:40 AM
FALCON POINTE COMMUNITY HOMEOWNERS' ASSOCIATION,
JEFFREY D. KYLE APPELLEE
Clerk
NO. 03-‐14-‐00650
MARCH 5, 2015
APPELLANTS’ OPENING BRIEF WITH SEPARATE APPENDIX
Wesley S. Spears, State Bar No. 18898400, Spears Law, 401 Congress
Avenue., Suite 1540, Austin, Texas 78701, Tel. 512-‐696-‐2222, Fax. 512-‐
687-‐3499 Attorney for Appellants, email, wesleys637@yahoo.com.
ORAL ARGUMENT IS REQUESTED
Appeal from County Court One of Travis County, Texas
C-‐1-‐CV-‐13-‐010214
IDENTITY OF PARTIES AND COUNSEL
Appellants, Wesley Spears and Renee Jacobs
Appellants’ counsel
Wesley S. Spears, State Bar No. 18898400, Spears Law, 401 Congress
Avenue., Suite 1540, Austin, Texas 78701, Tel (512)696-‐2222, Fax. 512-‐
687-‐3401.
Appellee, Falcon Pointe Community Homeowners’ Association
Appellee’s Counsel
David Chamberlain, Chamberlain and McHaney, 301 Congress Avenue,
22nd Floor, Austin, Texas 78701 Tel. 512-‐474-‐9124, Fax. 512-‐474-‐8582
TABLE OF CONTENTS
Identity of the parties and
Counsel…………………………………………………………… …………………………i
Table of
Contents………………………………………………………………………………………ii-‐iii
Index of
Authorities………………………………………………………………………………….iv-‐ix
Issues Presented For
Review………………………………………………………………………………………... x
Statement of the
Case…………………………………………………………………………………………….. 1
Statement Regarding Oral
Argument……………………………………………………………………………………...4
Statement of
Facts……………………………………………………………………………………………5-‐28
Summary of
Argument…………………………………………………………………………………29-‐32
Argument………………………………………………………………………………….33
Did the trial court, Phillips, J., err in granting appellee’s Motion for
Traditional and No Evidence Summary Judgment and denying
appellants’ Motion for Partial Summary Judgment and Motion for New
Trial?............................................................................................................................33-‐41
(A) The subject Notice of Violation is defective……………..……..41-‐48
ii
(B) Appellee violated Texas Property Code § 209.005 and refused
to produce relevant documents that appellants are entitled to obtain by
statute……………………………………………………………………………………….48-‐57
Did the trial court, Phillips, J., err in refusing to hear appellants’
Three Motions to Compel Discovery and their Motion for Continuance to
Complete Discovery, before granting appellee’s Motion for Traditional
and No-‐Evidence Summary Judgment and denying appellants’ Motion
for Partial Summary Judgment?.......................................................................58-‐65
Did the trial court err in dismissing appellants’ two Texas
Deceptive Trade Practices claims without allowing any oral argument
on the matter and without any basis in law to dismiss the
claims?.........................................................................................................................65-‐72
Did the trial court Phillips, J., and Wisser, J., err in denying
appellants’ Motion to Recuse Judge Phillips?.………………………………72-‐76
Prayer……….………………………………………………………………………………..76-‐77
Conclusion………………………………………………………………………………..…77
Certificate of Compliance….…...……………………………………………………..78
Certificate of Service…………………………………………………………………….79
iii
INDEX OF AUTHORITIES
Abdygappariva v. State, 243 S.W. 3d 191, 198 (Tex. App.-‐San Antonio
2007), p. 74.
Ashcreek Homeowner’s Association v. Smith, 902 S.W.2d 586 (App. 1 Dist.
1995), p. 43, 46, 47.
Axelson, Inc., et al., v. The Honorable Grainger W. McIIhany, 798 S.W. 2d
550, 555 (Tex. 1990), p. 59.
Benitz v. Gould Group, 27 S.W. 3d 109, 112 9Tex. App.—San Antonio
2000), no writ), p. 33.
Brewer & Pritchard, PC v. Johnson, 167 S.W. 3d 460, 469 (Tex. App
Houston (14th Dist.) 2005, rehearing overruled), p. 60 and 64.
Brown v. Galleria Area Ford, Inc., 752 S.W. 2d 114, 116 (Tex. 1988), p. 70.
Burton v. Cravey, 759 S.W. 2d 160 (Houston 1st District 1988), p. 57.
Celotex Corp., v. Catrett, 477 U.S. 317, 323-‐324, 106 S. Ct. 2548, 2553
(1986), p. 33.
Chastain v. Koonce, 700 S.W. 2d 579, 584 (Tex. 1985), p. 70-‐71.
Cire v. Cummings, 134 S.W. 3d 835, 838-‐39 (Tex. 2004), p. 73.
City of Houston v. Clear Creek Basin Authority, 589 S.W. 2d 671, 678 (Tex.
1979), p. 33.
City of Pasadena v. Gennedy, 125 S.W. 687 (Tex. App. – Houston [14th
District]), p 45.
Cf. Creel v. Dist. Attorney for Medina County, 818 S.W. 2d 45, 46 (Tex.
iv
1991) p. 63.
Clary Corp., v. Smith, 949 S.W. 2d 452, 464 (Tex. App.—Fort Worth 1997,
no writ), p. 70.
Cooper Tire & Rubber Co. v. Mendez, 204 S.W. 3d 797, 800 (Tex. 2006), p.
73.
Crispin v. Paragan Home, Inc., 888 S.W. 2d 78 (Tex. App.-‐Houston [1st
Dist.] 1994, writ denied.), p. 46.
Davis v. Huey, 620 S.W. 2d at 566, p. 45.
Downer v. Aquamarine Operations, Inc., 701 S.W. 2d. 238, 241-‐242 (Tex.
1985), cert denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed. 2d 721 (1986),
p. 73.
Peter Enters, Inc., v., 51 S.W. 3d 616, 623 (Tex. App-‐-‐Tyler 2000, pet.
denied), p. 71.
Estate of William H. Arlitt v. Paterson, 995 S.W. 2d 713, 717 (Tex. App.—
San Antonio 1999), p. 35.
Flamont Design v. Pennzoil Casplan, 994 S.W. 2d 830, 834 (Tex. App.—
Houston [1st Dist.] 1999), p. 36.
Friesenhahn, 960 S. W. 2d 656, 654 (Tex. 1998), p. 35.
See Galbraith Eng’g Consultants, Inc. v. Pochucha, 290 S.W. 3d 863, 867
v
(Tex. 2009), p. 74.
Gaines v. Hamman, 163 Tex. 618, 626, 358 S.W. 2d 557, 563 (Tex. 1962), p.
34.
Helfand v. Coane, 12 S.W. 3d 152, 155 (Tex. App. Houston [1st Dist.] 2000,
pet denied), p. 58.
Hodas v. Scenic Oaks Property Ass’n, 47 S.W. 2d 747 (App. 4 Dist. 2000),
p. 43
Horizon/CMS Healthcare Corp., v. Auld, 34 S.W. 3d 887, 897 (Tex. 2000), p.
35.
In re Cerebus Capital Mgmt., L.P., 164 S.W. 3d 379, 382 (Tex. 2005), p. 73.
In re Olshan Found Repair Co., 328 S.W. 3d 883, 888 (Tex. 2010), p. 73.
In re Ramirez, 994 S.W. 2d 682, 683 (Tex. App. San Antonio 1998, orig.
proceeding), p. 63.
Jackson v. Fiesta Mart, 979 S.W. 2d 68, 70-‐71 (Tex. App.—Austin1998), p.
36.
Jampole v. Touchy, 673 S.W. 2d 569, 573 (Tex. 1984) p. 64.
J. P. Bdg. Enterprises, Inc., v. Timberwood Development Co., 718 S. W. 2d
841 (Tex. App. Corpus Christi 1986 , writ refused n.r.), p. 45.
Kindred v. Con/Chemical, Inc. 650 S.W. 2d 61, 63 (Tex. 1983), p. 36.
Lear Siegler, Inc., v. Perez, 819 S.W. 2d 470,471 (Tex. 1991), p. 33.
vi
Limestone Products Distributor v. McNamara, 71 S.W. 3d 308, 310 (Tex.
2002), p. 34.
State Farm Lloyds v. Nicolau, 951 S.W. 2d 444, 451 (Tex. 1997). P. 70.
Low v. Henry, 221 S.W. 2d 609, 614 (Tex. 2007), p. 73.
Macdonald v. Painter, 441 S. W. 2d 179 (Tex. 1969), p. 45.
Marroquin v. D & N Funding, Inc., 943 S.W. 2d 112, 114 (Tex. App.—
Corpus Christi 1997, no pet.), p. 73.
Matinez v. City of San Antonio, 40 S.W. 3d 587, 591 (Tex. App.—San
Antonio 2001, pet denied), p. 60.
Merrill Dow Pharmaceuticals, Inc. v. Havner, 953 S.W. 2d 706, 711 (Tex.
1997), p. 36.
M.D. Anderson Hospital, Willrich, 28 S.W. 3d 22, 23 (Tex. 2000), p. 34.
Moorehouse v. Chase Manhattan Bank, 76 S.W. 3d 587, 591 (Tex. App—
San Antonio 2002, no writ), p. 60.
Moore v. K-‐Mart Corp., 981 S.W. 2d 266, 269 (Tex. App.—San Antonio
1998, pet. denied), p. 34.
Munson v. Milton, 948 S.W. 2d 813 (Tex. App.-‐ San Antonio 1997), p. 45.
Nast v. State Farm Fire & Cas. Co., 82 S.W. 2d 42, 47 ( Tex. App.—Corpus
Christie 1990 (no pet.), p. 70.
vii
Nelson v. PNC Mortgage Corp., 139 S.W. 3d 442 (2004), p. 62, 63, 64.
Nixon v. Mr. Property Management, Co., 690 S.W. 2d 546, 548-‐549 (Te
1985), 34-‐35.
Perry v. S.N., 973 S. W. 2d. 301,303 (Tex. 1998), p. 35.
Perry Homes v. Cull, 258 S.W. 3d 580, 598 (Tex. 2008), p. 74.
Pheasant Run Homeowners Ass’n, Inc., v. Kastor, 47 S.W. 2d 74 (Tex. App. _
Houston [14th District]) 2001), p. 45.
Stephan v. Baylor Med. Ctr. At Garland, 20 S.. 3d 880,891 (Tex. App.—
Dallas 2000, no pet.), p. 34.
Simon Property Group (Texas) L.P. v. May Dept. Stores Co., 943 S.W. 2d 64
(Tex. App. Corpus Christi 1997), p. 45.
Tempay, Inc., v. TNT Concrete & Construction, Inc., 37 S.W. 3d 517, 521-‐
522 (Tex. App.—Austin 2001, no writ) citing Robert W. Clore, Texas Rule
of Civil Procedure 166a(1); A New Weapon for Texas Defendants, 29 St.
Mary’s L. J. 813, 843 (1998), p. 61, 64.
Walker v. Guiterrez, 111 S.W. 3d 56, 62 (Tex. 2003), p. 73.
Walker v. Harris, 924 S.W. 2d 375, 378 Tex. 1996), p. 35.
West v. Solite, 563 S.W. 2d 240, 243 (Tex. 1978), p. 58.
Wilmoth v. Wilcox, 743 S.W. 2d at 658, p. 46-‐47.
Tex. R. Civ. Proc. 192.3 (a), p. 58-‐59.
U.S. Const. Fourteenth Amendment, p. 58.
Texas Constitution Article 1 § 19, p. 58.
viii
Tex. R. Civ. Proc. 166a(i), p. 28, 46, 47, 49.
Texas Property Code § 209.002 et. seg.
Texas Property Code § 209.009, p. 11.
Texas Property Code § 209.005, p. 11, 29, 48, 49, 50, 51, 52, 55, 56.
Texas Property Code § 209.006 P. 41, 44, 45.
Texas Property Code § 209.007, p. 7, 14, 19.
Texas Deceptive Trade Practices Act (DTPA) section(s):
V.T.C.A., Bus. & C., §17.50, p. 65, 68 and 71.
V.T.C.A., Bus. & C. §17.46, p. 69.
ix
ISSUES PRESENTED FOR REVIEW
1. Did the trial court, Phillips, J., err in granting appellee’s
Motion for Traditional and No Evidence Summary Judgment and
denying appellants’ Motion for Partial Summary Judgment and Motion
for New Trial?
2. Did the trial court, Phillips, J., err in refusing to hear
appellants’ Three Motions to Compel Discovery and their Motion for
Continuance to Complete Discovery, before granting appellee’s Motion
for Traditional and No-‐Evidence Summary Judgment and denying
appellants’ Motion for Partial Summary Judgment?
3. Did the trial court err in dismissing appellants’ two Texas
Deceptive Trade Practices claims without allowing any oral argument
on the matter and without any basis in law to dismiss the claims?
4. Did the trial court Phillips, J., and Wisser, J., err in denying
appellants’ Motion to Recuse Judge Phillips.
x.
TO THE HONORABLE THIRD DISTRICT COURT OF APPEALS:
Appellants, Wesley Spears and Renee Jacobs submit this Brief in
Support of their Appeal and request that this court reverse the ruling of
the Honorable David Phillips, from County Court One, Travis County,
Texas granting appellee’s Motion for Traditional and No-‐Evidence
Summary Judgment. Appellants also request that the this court order
the trial court to enter an order granting appellants’ Motion for Partial
Summary Judgment and order the trial court to hold a Hearing
regarding appellants’ right to attorneys’ fees and to restore the
remainder of appellants’ claims to the trial court docket to complete
discovery and for trial.
STATEMENT OF THE CASE
This matter involves a declaratory judgment action brought by the
appellants, Wesley Spears and Renee Jacobs (hereinafter “appellants”)
against Falcon Pointe Community Homeowners Association (hereinafter
“appellee”). The action was brought by the appellants asking the court
to determine whether the actions taken by the appellee, Falcon Pointe
1.
Community Homeowners’ Association which found the appellants in
violations of unspecified deed restrictions of the appellee was done in
violation of the Texas Property Code.
Appellants’ pled in their Petition that the appellee’s Violation
Notice was defective and therefore, unenforceable because it failed to
cite a specific deed restriction that appellants allegedly violated. In
addition, the appellants pled, the Violation Notice gave an invalid cure
date of “before the August inspection” even though the Notice was dated
October 22, 2013. The Hearing, which appellee relies on to support it’s
actions finding the appellants in violation of the deed restrictions
occurred on November 13, 2013. Therefore, the cure date provided in
the Violation Notice was defective because it did not give appellants a
reasonable opportunity to cure the alleged defect and contained an
invalid date.
The Trial Court, Phillips, J., erred in granting appellee’s Motion for
Traditional and No-‐Evidence Summary Judgment and denying
appellants’ Motion for Partial Summary Judgment prior to hearing
appellants’ three outstanding Motions to Compel Discovery and
2.
appellants’, Motion for Continuance to Complete Discovery.
The court also, erred in dismissing appellants Texas Deceptive
Practices Act, claims without allowing oral argument and without
indicating any reason for the dismissal. Appellants alleged that
appellee had violated the Texas Deceptive Practices Act by refusing to
provide the appellants with a Hearing in regards to first Violation
Notice. Appellants also alleged that appellee fraudulently omitted
appellant, Wesley Spears’ name from being placed on the Ballot for the
election of Neighborhood Representatives on June 7, 2014, in violation
of his rights to due process and equal protection of the law.
The court in it’s rulings, demeanor and behavior in this case
exhibited extreme bias against the appellants, who are African American
and in favor of appellee, which is controlled by Newland Communities
the largest private developer in the United States . The appellants
moved for the Court to recuse itself on the basis of bias. The court,
Phillips, J., and Wisser J., erred when it denied appellants’ Motions to
Recuse Judge Phillips.
3.
STATEMENT REGARDING ORAL ARGUMENT
Appellants’, request that court allow oral argument in this matter.
There is no record of the Hearing of the parties cross Motions for
Summary Judgment Motion, therefore, appellants believe oral argument
would be very helpful to the court. This court should hear from counsel
and the justices should have an opportunity to inquire of counsel, in
order to get a clear picture of what took place at the September 15,
2014, Hearing of the parties’ Cross Motions for Summary Judgment and
the question of whether the appellee refused to cooperate with
discovery and the other issues raised in this Appeal.
4.
STATEMENT OF FACTS
Appellants purchased a home in Falcon Pointe, a planned
community, developed by Newland Communities, the largest private
developer in the United States on January 15, 2013. Thereafter, with the
permission of the Falcon Pointe Community Homeowners’ Association
(hereinafter the “appellee” or the “Association), appellants installed a
swimming pool on the subject property in April, 2013. After the pool
was installed, appellants became aware that the fence on their property
sat in a depression and was only four feet high along the side of the pool.
Appellants sought to extend the height of the fence to the full six-‐
foot height allowed by the rules and bylaws of the Association and did
so using lattice. By Violation Notice dated July 26, 2013, Diane Bottema,
appellee’s property manager notified appellants that the lattice
extension that appellants installed to their fence violated the rules of the
Association.
Ms. Bottema deposition testimony was the property inspector
assigned to inspect the properties in the Association, Mr. Morales,
prepared the letter and stamped it with Diane Bottema’s signature using
5.
a rubber stamp. Appellants advised appellee that they wanted a
Hearing and would request a Hearing in writing within the thirty (30)
days provided in the Violation Notice and applicable law. 1
Thereafter, Ms. Bottema sent appellants an email that stated
despite the clear language of the Violation Notice and the Texas
Property Code appellants were not entitled to a Hearing. The email
stated that in matters of clear violations of the rules of the Association,
the President of the Association, Ranier Ficken, could act for
the Board without a Hearing.2
At his deposition, Ranier Ficken, president of the appellee,
testified that contrary to Ms. Bottema’s email he had no authority to act
for the board of the appellee, in matters of clear violations of the rules of
the Association.3 The Association was established in 2002, more than
ten years before the appellants’ purchased their home.4 The Board of
the appellee is still under the control of the Developer, Newland
Communities.
The Board of the Association is comprised of two employees of the
developer and a member selected by the Neighborhood Representatives
of the Association. Appellants requested a meeting with Ms. Bottema
6.
and the President of the Association, Ranier Ficken after Ms. Bottema
refused to grant appellants a Hearing in violation of Texas Property Code
§ 209.007 and the rules and regulations of the appellee.5
A meeting was scheduled and held as a result of the emails that
were exchanged between Ms. Bottema, the property manager and
appellants.6 Prior to that meeting appellants removed the lattice
addition to the fence as requested in the first Violation Notice. At the
meeting, Ms. Bottema and Mr. Ficken gave appellants oral instructions
regarding what kind of privacy screen, appellants, could build.
Pursuant to that meeting and further emails that were exchanged
between the parties, appellants built a completely free standing privacy
screen, which was not attached to the existing fence in any way in
September of 2013.
Appellants did not receive any Notices of Violation in either
August or September of 2013. By letter dated October 22, 2013,
appellee sent appellants a purported Violation Notice that they were in
violation of the rules of the Association as a result of the privacy screen
that appellants built on their property, based on the instructions given
to appellants, by the president of the Association, Ranier Ficken and
7.
Diane Bottema, the property manager.7
The Notice did not cite any specific deed restriction(s) that
appellants were alleged to have violated. The Notice provided a cure
date of before the “August inspection”, even though the Notice is dated
October 22, 2013, Ms. Bottema claimed to have no knowledge as to how
the cure date was determined. Ms. Bottema, the property manager
whose name appears on the Violation Notice answered as follows
concerning the cure date in subject the Violation Notice during her
deposition:
Q. What cure dates were you trained to put on notices of
violation?
A. I don’t know.
Q. Well the date of the letter is what?
A. The date on the letter is October 22nd.
Q. What year?
A. 2013.
Q. And it states a cure date of August?
A. With no date.
Q. And what do you believe the August they were referring to?
8.
A. I don’t know.
Q. So you don’t even know if I still have time to cure the
defect?
A. I don’t know.
Q. So you don’t know if the date refers to 2014, correct?
A. Right.
Q. You don’t know if the August date refers to 2015?
A. No.
Q. You don’t know if the August date refers to 2016?
A. No.
Q. So what date did I have to cure?
A. I don’t know.
Q. Well, you said that the cure date could have been the August
2014 August, 2015, August, 2016 August. I am asking which
date it was intended to be .
A. I don’t know.8
When asked about the notice Ranier Ficken, President of the
appellee testified regarding the subject October 22, 2013, Violation
9.
Notice:
Q. Let’s assume that letter is dated correctly for the purposes
of this question.
A. Okay.
Q. Then the cure date would have been wrong, correct, if that
date was right.
A. Well, certainly August comes before October, yes.9….
Q. And so from this Letter could you tell me which particular
regulation it is that I was alleged to have – the plaintiffs’ were alleged to
have violated.
A. The letter just list in violation of the CCR’s.
Q. How would someone know what regulation they were in
violation of with that notice letter?
A. Relative to this particular letter I don’t see the specific
regulation.10
The Appellee held a Hearing regarding the October 22, 2013,
Violation Notice on November 13, 2014. The By-‐Laws of the Association
10.
provide that if, appellants appear at the Hearing they waive their right
to contest lack of legal notice.11 Because appellants wished to contest
the validity of the Notice, they did not appear at the Hearing.
Thereafter, appellants began to make a series of requests directed
to the appellee to produce documents. Appellants made five requests
for documents as homeowners’ in the Association. The Requests were
sent certified mail return receipt requested pursuant to Texas Property
Code § 209.005.12
Appellee refused to produce any documents pursuant to
appellants’ six requests for Production of Documents to appellee as
homeowners’, in violation of the Texas Property Code § 209.005.
Thereafter, appellants made six formal requests for the Production of
Documents in the subject case. Appellants also filed six
Motions to Compel, the production of documents and witnesses.
Appellee refused to produce any documents that appellants requested
except for its liability insurance policy and less than twenty pages of
minutes of Board meetings, which had nothing to do with this case and
two budgets.13
Appellee refused to produce any correspondence between the
11.
parties. The appellee, refused to produce the Violation Notice, which it
relied on to find the appellants in violation of the rules of the
Association. Throughout the short history of the case the appellee has
refused to cooperate with any discovery. Appellee admittedly, refused
to cooperate with discovery simply asserting it believed that discovery
was unnecessary.14
Mr. Campbell stated as follows at plaintiffs’ first Motion to Compel
responding to a question by the court Sheppard, J.:
The court: Here is me (sic) question, I understand your position
and I grant that can have that position. But it’s an unusual
circumstances to decide that because that is your position, you can’t
give discovery. In any other situation—I mean I’m trying to figure out
how it’s and unreasonable request for him to ask for the deposition of
the key person who’s been telling him and communicating with him.
MR. CAMPBELL: In terms of the deposition which is the only issue
he brought before the court; trying to compel this deposition. If we
need to that we can. That was one issue I raised with him. We got the
summary judgment arguments. I do no think we need to go through the
process doing the deposition.15
12.
The counsel for the appellants’ asked the following questions to
the court:
MR. SPEARS: If he says he is not going to produce the
documents, how do we get that resolved before the deposition.
THE COURT: I recessed this hearing. This hearing is in recess
and it is not over. Call my Court set the date and we will talk about what
in subpoena duces tecum he doesn’t want to turnover. We will have
that discussion. When we are through with that discussion we will
figure out what discussion needs to be had next. I am likely to set a
scheduling order and then we will figure out where we are.16 During the
first Hearing the court Sheppard, J., granted appellants’ Motion to
Compel the Deposition, Duces Tecum, of Diane Bottema.17
In the second Hearing, the court, Sheppard, J., denied appellants’
Motion to Compel finding that the Appellee did not have to produce a
document that was not in existence, since appellee did not maintain
records of the dedicatory violation history of the Association. As a
result the court ruled appellants must request the minutes of the Board
meetings and compile the records themselves. Appellants maintained
13.
that, the Association was required by, Texas Property Code, § 207.009,
to maintain and compile the requested information. Judge Sheppard
further ruled that if the appellee had any objections to appellants’
document requests they must submit the objections to the court before
the deposition of Diane Bottema, the property manager.18
Appellants did not learn that Ms. Bottema was replaced by, Natalie
Boykin until appellants’ took Ms. Bottema’s deposition. Accordingly,
appellants were then forced to attempt to depose Natalie Boykin, the
new property manager.19 After appellants noticed Ms. Boykin’s
deposition appellee moved to quash appellants’ Notice to Take
Deposition and appellants filed a Motion to Compel Ms. Boykin’s
Deposition.20
Based on the court’s ruling appellants amended their production
requests to specifically request the minutes of all board meetings,
financial records and all other records of the Association. The
Association has never filed a copy policy as required by Texas Property
Code, § 209.007, and therefore, it was obligated by statute to produce
copies of all the records of the Association without cost to any
homeowner who properly requests the records, with private
14.
information redacted.21
Appellants’ pursuant to Judge Sheppard’s Order filed a new Notice
to take the Deposition, Duces Tecum of Diane Bottema. Appellants filed
another Motion to Compel after the appellants and appellee exchanged
emails regarding whether Ms. Bottema would produce the documents
requested in appellants’ Notice to take Deposition Duces Tecum.
Appellee’s counsel indicated, that although he was going to object to
producing documents, he refused to submit appellee’s objections to the
court prior to Ms. Bottema’s, Deposition as ordered by Judge
Shepperd.22
The court, Phillips J., denied appellants’ Motion to Compel ruling
since the deposition has not taken place, the Motion was premature
despite Judge Sheppard’s order requiring the appellee to submit it’s
objections before Ms. Bottema’s, Deposition.23 Judge Phillips’ Order
ruling the Motion was premature and Judge Shepperd’s Order are
inconsistent since the Hearing of the parties Motion to Compel was
simply adjourned to deal with any objections by appellee to the
15.
production of records.
Appellants subsequently took the deposition of Ms. Bottema and
she produced absolutely no documents pursuant to appellants’ Notice to
take her Deposition Duces Tecum, not even her correspondence with
appellants claiming she no longer had access to her own emails even
though she now worked for the property manger, Goodwin
Management in the office where the records were maintained because
the Goodwin Management locked her of her email account and the
records of the Appellee.24 The transcripts of both Ms. Bottema and Mr.
Ficken’s deposition were not available prior to the Hearing of the
parties cross Motions for Summary Judgment, because of the delays
caused by appellee.
Appellants were deprived of their right to produce evidence
obtained from those depositions to refute appellee’s claims in support of
it’s Summary Judgment Motion.25 Appellants also filed a Notice to take
the Deposition Duces Tecum of Ranier Ficken, the president of the
Association and the developer, Newland Communities’ Project Manager.
The appellee oversees yearly dues of the Association, in an amount over
one million dollars per year, while allowing no oversight by the
homeowners.26
The Association is under the control of the developer, Newland
Communities that has through its actions demonstrated that it will
not comply with the Texas Property Code and make the records of the
Association available to the homeowners’ especially the appellants. Mr.
Ficken testified that he had access to all the documents of the
Association but relied on his attorney to determine what documents he
would produce. Mr. Ficken testified that he made no effort to comply
with appellants’ Notice to Take his Deposition Duces Tecum27
Appellants also served appellee with notice of their intent to take
the Deposition Duces Tecum, of Natalie Boykin, the property manager of
the Association, who assumed Ms. Bottema’s position on or about May 1,
2013.28 Ms. Boykin replaced Ms. Bottema who was reassigned because
of poor performance, including complaints by other residents, according
to the deposition testimony of Ranier Ficken.29 Ms. Bottema denied that
she was replaced for poor performance.30
As property manager, Ms. Boykin oversaw the June 7, 2014,
election. Appellant, Wesley Spears, properly applied to be included on
the ballot, for neighborhood representative, nevertheless his name was
fraudulently left off the ballot by Natalie Boykin, the new property
manager.31 17.
Appellant also Noticed the Deposition of William Meyer, vice
president of the Association and vice president of Newland
Communities, the developer, who was one of only two people who voted
at the Hearing finding the appellants in violation of rules of the
Association, based on the Board’s “business judgment”, not because of a
violation of specific deed restriction.32
Ms. Bottema and Ms. Boykin were the property managers
responsible for the issuance of Violation Notices, conducting elections,
collecting dues, and the overall management of the property of the
Association. Ms. Boykin became custodian of records when she
replaced Ms. Bottema, as property manager and she conducted the
election, which is the subject of one of appellants’ two DTPA claims.
After Ms. Bottema was replaced she testified at her deposition that she
did not have access to the records of the Association.
Obviously, this was another attempt to hide the ball by appellee,
allowing Ms. Bottema to claim she did not have access to her records not
even her own emails or letters related to this matter even though she
18.
was still employed by Goodwin Management the property management
company. Clearly, the four witnesses noticed for deposition by the
appellants, were not only material witnesses, they were critical
witnesses.
Appellants’ Fourth and Fifth Amended Complaint alleged that the
appellee fraudulent left the appellant, Wesley Spears’ name off of the
election Ballot, which was held on or about June 7, 2014, for
Neighborhood Representative in violation of the DTPA. The election
took place approximately seven months after suit was filed in this
matter and approximately three months before the court granted
appellee’s Motion for Summary Judgment. Nevertheless, the court
dismissed this claim without allowing argument on the matter or stating
any reason for the court’s ruling.
Appellants also alleged a violation of the Texas Deceptive Trade
Practices Act (hereinafter “DTPA”) against the appellee based on
appellee’s property manager, Diane Bottema’s, misrepresentation of the
law and the rights and obligations between the parties when she
advised the appellants that they were not entitled to a Hearing as
provided in Texas Property Code § 209.007, and the by-‐laws of the
19.
Association regarding the first Violation Notice.33
Appellants’ counsel sent two emails to court operations officer,
Darryl Sanders requesting that appellants’ three outstanding Motions to
Compel Discovery be heard before appellee’s Motion for Traditional No-‐
Evidence Summary Judgment and appellants’ Motion for Partial
Summary Judgment was heard.34 Mr. Sanders was also copied on a
series of emails between the parties in which appellants’ were
attempting to get the appellee to agree on a hearing date for appellants’
three Motion to Compel Discover prior to a Hearing of the parties’ Cross
Motions for Summary Judgment.35
All disputed court dates were scheduled in the exact same manner
through the Court Operations Officer, Darryl Sanders pursuant to emails
throughout this case.36 Mr. Sanders would only communicate with the
parties by email, which copied opposing counsel, because of his belief
that an oral conversation might constitute an improper ex parte
communication.37
Despite appellants’ requests Mr. Sanders testified at the Hearing
of appellants’ Motion to Recuse Judge Phillips, that he did not advise
Judge Phillips of appellants’ request that their three Motions to Compel
20.
be heard prior to the hearing of the parties’ Cross Motions for Summary
Judgment.38 Further, Mr. Sanders testified, without explanation, that he
did not even respond to either appellants’ emails requesting a Hearing
of their three Discovery Motions, before the hearing of the parties’ Cross
Motion for Summary judgment. After instructing counsel to
communicate with him only by email Mr. Sanders’ testified that he did
respond to appellants’ crucial emails. The following colloquy is
contained in one email to Mr. Sanders testified he did not respond to or
advise the court of:
A. I mean, I have one that’s to you—I mean, I’m sorry . I have
one September 9th at 3:27 p.m. where it is copied to Mr. Chamberlain.
And you’re indicating in the e-‐mail that –well, can I just read the e-‐mail?
Q. Yes.
Mr. Spears I think it is short enough, Judge, that it
wouldn’t be objectionable.
A. It says, “Dear Mr. Sanders. Attorney Campbell would give
me October 14 and 15 as dates he is available for hearing on the above
reference motions. The discovery cutoff is September 30th, is the
discovery cutoff”, period. “Therefore, since we reserved two hours on
21.
September 15, 2014 for the parties’ motions for summary judgment, I
thought September 15, 2014. I will leave to the court’s discretion as the
as to the appropriate date for the hearing on the above motions. Please
advise. Thank you, Wesley Spears.”39 The testimony of Mr. Sanders
went on:
Q You ever have an occasion, (sic) that you can recall where
someone asked you to set a discovery motion before a summary
judgment motion and you did not do so?
A. In this cause or any other cause?
Q. Any other cause?
A. No.
Q. So it is the court’s policy to hear discovery motions before
summary judgment motions?
A. It can be, yes.
Q. It can be or it is?
A. It can be, yes.
Q. Well, is it or isn’t it?
A. Well it depends on the setting party.
22.
Q. Well, no. I am asking, isn’t it the court’s policy to hear discovery
motions before hearing summary judgment motions?
A. Yes.
Q. And in this case there were three outstanding discover motions
that were pending before the summary judgment motions. That’s what
those emails were about Correct?
A. I believe so.
Q. So the court did not follow its own policy in failing to hear those
motions before ruling on summary judgment.
A. I can’t—…
There was a serious of objections and the questioning continued:
Q. So as court operations officer, you don’t know if there is a practice
that discovery motions are heard before summary judgment motions?
A. Well there can be moyiond—discovery motions before summary
judgment, yes.
Q. And have you ever experienced an occasion where someone asks
for a discovery motion to be heard before summary judgment it was
denied before it could be hear?
A. I don’t know of any.
23.
Q. You don’t know of any other situation where that has occurred?
A. No sir….
Q So you would not dispute if I testified that I had not received the
instruction because you don’t recall giving them. Correct?
A. That would be true, sir. I can’t I don’t have anything.
Q. And in hindsight, you would have given me those instructions had
you realized that I did not have such instructions?
A. If I had been the one, yes sir.
Q. And then the only other question is, again, why would you not
respond to that e-‐mail?
A. I don’t have answer for you, sir.40
Mr. Sanders took the civil equivalent of asserting his Fifth
Amendment privilege against self-‐incrimination. He scheduled every
Hearing in this matter that was not set by the Judge in court, or agreed
to by the parties, pursuant to emails from the parties. He even sent an
email to the parties requesting that the parties communicate with him
by email with copy to the opposing counsel.41 The parties could not
agree on a date for the appellants’ First Motion to Compel. Counsel for
appellee stated to Judge Shepperd that Hearing was set up by email to
24.
Mr. Sanders.42 Mr. Sanders also testified that he never advised counsel
for the appellants that his requests were not proper nor did he have an
explanation as to why he did not respond to appellants’ emails.43
Mr. Sanders testified that he was not aware of a single case, other
than this case, in which the court did not hear all outstanding discovery
motions before ruling on motions for summary judgment. Mr. Sanders
testified he had no answer why he did not respond to counsel for the
appellants’ emails. There were emails addressed directly to Mr. Sanders
and several others he was copied on between the parties because the
parties could not agree on a date for the hearing appellants’ three
Discovery Motions.
Mr. Sanders clearly establishes that the court showed bias against
appellants, who are African American, in favor of the largest private
developer in the United States, Newland Communities who is in control
of appellee by violating the court’s policy to hear discovery motions
before deciding motions for summary judgment.
On September 15, 2015, the court Phillips, J., convened a Hearing
of the
25.
parties Cross-‐Motions for Summary Judgment. Counsel for the
appellants advised the court of appellants’ three outstanding Discovery
Motions and Motion for Continuance to Complete Discovery. Appellants
have only filed one Motion for Continuance to Complete Discovery in
this matter. The court refused to hear the appellants’ Motions to
Compel, because despite appellants’, timely requests for a hearing to Mr.
Sanders, the Court Operations Officer did not schedule the Motions,
which the court used as an excuse for not hearing them.
Despite the anticipated two hours to hear the parties’ Cross
Motions for Summary Judgment the courtroom was full of lawyers’ with
much shorter matters waiting to be heard. Other than a one minute
hearing at the beginning of the call of cases, appellants’ case was called
before all other matters.44
Judge Phillips refused to recuse himself, after appellants’ filed a
Motion to Recuse Judge Phillips and the matter was referred to the
Administrative Judge, Billy Ray Stubblefield, who denied the appellants’
first Motion to Recuse because it did not request an immediate Hearing.
Appellants’ filed a second Motion to Recuse, amending the original
26.
motion to request an immediate Hearing. Again Judge Phillips refused
to recuse himself and the matter was again assigned to the
Administrative Judge Stubblefield. Judge Stubblefield assigned the
matter for a Hearing in front of Judge Wisser.
On November 7, 2014, Judge Wisser held a Hearing of appellants’
Motion to Recuse Judge Phillips. During the Hearing, Judge Phillips
Court reporter, Cathy Mata, Court Operations Officer, Darryl Sanders,
David Campbell, attorney for appellee and Wesley Spears, counsel for
appellant testified at the Hearing of appellants’ Motion to Recuse.
The court reporter, Ms. Cathy Mata testified that although she was
on the record for the first matter on September 15, 2014, which lasted
one minute, she went off the record although there was no
announcement that the court was going off the record or that the
Summary Judgment Hearing was not on the record.45 The court
reporter, Ms. Mata was still seated in her court reporter’s station
throughout the Hearing of the parties’ Cross Motions for Summary
Judgment.46
Counsel for Appellants was not familiar with the operations of this
27.
trial court since this was the first time he had ever argued a Summary
Judgment Motion in this Court, therefore, counsel believed the Hearing
of the parties’ Cross Motions for Summary Judgment was on the record.
Judge Wisser denied appellants’ Motion to Recuse Judge Phillips.47
Appellants’ filed a Motion for New Trial and a Motion for
Reconsideration. The court Phillips, J., denied Appellants Motion for
New Trial and/or for Reconsideration on December 1, 2014.
28.
SUMMARY OF THE ARGUMENT
The trial court erred by denying appellants’ Motion for Summary
Judgment which was based on their claim that the subject Violation
Notice was defective because it failed to provide a citation to the specific
deed restriction(s) the appellants were alleged to have violated. The
Violation Notice was also defective because it gave a cure date of “before
the August inspection” even though the Violation Notice was dated
October 22, 2013. The appellee held a Hearing based on the subject
Violation Notice on November 13, 2013.48 The subject Hearing which
was based on a defective Notice is also defective.
The trial court also erred in failing to grant appellants’ Motion for
Partial Summary Judgment regarding appellants’ claim that the appellee
was in violation of Texas Property Code § 209.005, because of
appellee’s failure to produce the books and records of the Association.
The court also erred in failing to hear appellants’ three Motions to
Compel Discovery and Motion for Continuance to Complete Discovery
before granting appellee’s Motion for Traditional and No-‐Evidence
Summary Judgment. The court refused to hear appellants’ Motions
29.
finding that they were not scheduled for the day of the hearing of the
parties’ Cross Motion s for Summary Judgment. The court abused it’s
discretion and/or denied appellants due process and violated court’s
policy, as the Court Operations Officer testified, by failing to hear
appellants’ three Discovery Motions and Motion for Continuance to
Complete Discovery before granting appellees’ Motion for Traditional
and No-‐Evidence Summary Judgment.
The appellants also alleged a violation of the DTPA as a result of
the false and misleading written statements of the property manager,
Diane Bottema, representing that the appellants’ were not entitled to a
hearing in matters of clear violations because the president of the
Association, Ranier Ficken could speak on behalf of the Board.49 Ranier
Ficken the president of the Association testified at his deposition that
Ms. Bottema’s claim that he could speak for the Board of the appellee on
matters of clear violations was false.50
Appellants also alleged that appellant, Wesley Spears was
subjected voting fraud when his name was left off the ballot for the
election of neighborhood representatives on or about June 7, 2014. This
claim only existed for three months before the court ruled on the
30.
parties’ Cross Motions for Summary Judgment.
The court erred in refusing to recuse itself based on it’s refusal to
hear appellants’ three Motions to Compel Discovery and Motion for
Continuance to Complete Discovery that violated court’s policy and by
showing bias against the appellants by refusing to allow counsel time to
argue, as well as making demeaning remarks to counsel for appellants.
The trial court’s bias was also demonstrated, by the Court verbally
abusing counsel for the appellants, giving no consideration to appellants
arguments, as outlined in the appellants’ Motion to Recuse.51 Even the
court reporter, Cathy Mata, testified when she was called as a witness by
appellee’s counsel, that Judge Phillips does raise his voice and is
sarcastic. Counsel was attempting to impeach, appellants’, Wesley
Spears testimony that Judge Phillips was shouting at him and acting
sarcastically toward appellants’ counsel at the Hearing.52 As an example
of the bias shown by Judge Phillips on July hearing plaintiffs’ third
Motion to Compel:
“Counsel when they first came here and filed their Motion for
Summary Judgment, they felt there wasn’t any discovery that was
31.
necessary before the summary judgments motions where heard. I now
agree with them…” the court went on … The court: And if you asked for
that before file a lawsuit you’d have them in your hands right now. But
once you file a lawsuit, things change….”53 The Judge also made a
number of other comments which counsel for the appellant felt were
derogatory.54
Finally, the court Wisser, J., erred by failing to grant appellants’
Motion to Recuse Judge Phillips. A reasonable person presented with
the facts appellants presented to the court would lead a reasonable
person to question the impartiality of Judge Phillips. Judge Phillips
rulings were so clearly against the rules and laws of the State of Texas
and the United States to constitute bias.
32.
ARGUMENT
I. Did the trial court, Phillips, J., err in granting appellee’s
Motion for Traditional and No Evidence Summary Judgment and
denying appellants’ Motion for Partial Summary Judgment and
Motion for New Trial
Summary Judgment is available to the movant only when the
movant establishes that there is no genuine issue of material fact; and
that the movant is entitled to summary judgment as a mater of law. City
of Houston v. Clear Creek Basin Authority, 589 S.W. 2d 671, 678 (Tex.
1979). A defendant/movant is entitled to summary judgment only if no
evidence exists to support the plaintiff’s causes of action. Celotex Corp.,
v. Catrett, 477 U.S. 317, 323-‐324, 106 S. Ct. 2548, 2553 (1986); See Benitz
v. Gould Group, 27 S.W. 3d 109, 112 9Tex. App.—San Antonio 2000), no
writ).
Further a defendant is entitled to summary judgment only if he
disproves, as a matter of law, one of the essential elements of each of the
plaintiffs’ causes of action. Lear Siegler, Inc., v. Perez, 819 S.W. 2d
470,471 (Tex. 1991). A no-‐evidence summary judgment is essentially a
pretrial directed verdict, and courts apply the same legal sufficiency
standard in reviewing a no-‐evidence summary judgment as they apply
33.
in reviewing a directed verdict. Stephan v. Baylor Med. Ctr. At Garland,
20 S.W. 3d 880,891 (Tex. App.—Dallas 2000, no pet.); Moore v. K-‐Mart
Corp., 981 S.W. 2d 266, 269 (Tex. App.—San Antonio 1998, pet. denied).
Courts are to consider all the evidence in the light most favorable
to the party against whom the no-‐evidence summary judgment is to be
rendered disregarding all contrary evidence and inferences. Stephan, 20
S.W3d at 887, see also, Havner, 953 S.W. 2d at 711.
It is not the purpose of the summary judgment rule to provide
either a trial by deposition or a trial by affidavit, but rather to provide a
method of summarily terminating a case when it clearly appears that
only a question of law is involved and there is no genuine issue of fact.
See Gaines v. Hamman, 163 Tex. 618, 626, 358 S.W. 2d 557, 563 (Tex.
1962).
At summary judgment, the court must consider all the non-‐
movant’s proof is true. Limestone Products Distributor v. McNamara, 71
S.W. 3d 308, 310 (Tex. 2002); M.D. Anderson Hospital, Willrich, 28 S.W. 3d
22, 23 (Tex. 2000); Nixon v. Mr. Property Management, Co., 690 S.W. 2d
546, 548-‐549 (Tex. 1985).
Judge Phillips should have also given appellants an opportunity to
34.
amend their pleadings to cure any alleged defects in the pleadings.
Perry v. S.N., 973 S. W. 2d. 301,303 (Tex. 1998); Horizon/CMS Healthcare
Corp., v. Auld, 34 S.W. 3d 887, 897 (Tex. 2000); Friesenhahn, 960 S. W. 2d
656, 654 (Tex. 1998).
At summary judgment, the court must consider the record as
whole, viewing the summary judgment evidence and inferences from
such evidence and giving the non-‐movant the benefit of all reasonable
inferences that may be drawn from such evidence. Nixon v. Property
Management Co., 690 S.W. 2d 546, 548-‐549 (Tex. 1985).
At summary Judgment, the court must indulge every inference in
favor of the non-‐movant. M.D. Anderson Hospital v. Willirich, 28 S.W. 3d
22, 23 (Tex. 2000); Walker v. Harris, 924 S.W. 2d 375, 378 Tex. 1996);
Nixon v. Property Management Co., 690 S.W. 2d 546, 548-‐549 (Tex.
1985).
A motion for summary judgment should be denied if the non-‐
movant produces more than a scintilla of evidence thereby raising a
genuine issue of fact as to an essential element of a cause of action of
which the non-‐movant would have the burden of proof at trial. See
Estate of William H. Arlitt v. Paterson, 995 S.W. 2d 713, 717 (Tex. App.—
35.
San Antonio 1999), rehearing overruled). Evidence is more than a
scintilla when it “rises to the level that would enable reasonable and
fair-‐minded people to differ in their conclusions”. Merrill Dow
Pharmaceuticals, Inc. v. Havner, 953 S.W. 2d 706, 711 (Tex. 1997).
Evidence is less than a scintilla when it is so weak as to do no
more than create a mere surmise or suspicion of the existence of fact.
Tex. R. Civ. Proc. 166a; Kindred v. Con/Chemical, Inc. 650 S.W. 2d 61, 63
(Tex. 1983); Flamont Design v. Pennzoil Casplan, 994 S.W. 2d 830, 834
(Tex. App.—Houston [1st Dist.] 1999); Jackson v. Fiesta Mart, 979 S.W. 2d
68, 70-‐71 (Tex. App.—Austin1998).
As will be demonstrated, appellee’s Motion for No-‐Evidence and
Traditional Motion for Summary Judgment should have been denied and
appellants’ Motion for Partial Summary Judgment based on the
defective Violation Notice and the other reasons stated herein should
have been granted.
Appellants received a first Violation Notice bearing the signature of
Diane Bottema, the property manager, which indicated that the lattice
36.
extension that appellants installed to their fence, was in violation of the
rules and/or deed restrictions of the Association. By e-‐mail appellants
notified the property manager that they intended to ask for a Hearing
after they conducted their own investigation.55
By e-‐mail the property manager told the appellants that they were
not entitled to a Hearing in this matter because in matters of clear
violations the president of the Association could act for the Board of
Directors; see text of e-‐mail below:
“Yes the fence in the attached photo needs to be moved forward to
screen the pool pump and the lattice removed from the fence. In a
situation such as this, the Board President may speak on behalf of
the Board of Directors when the home is in direct violations of the
Deed Restrictions.”56
Mr. Ficken testified that as President of the Association he did not
have authority to speak on behalf of the Board.57 Based on Ms. Bottema
false and deceptive statements the appellants removed the lattice from
the fence all to their loss and damage and requested a meeting with the
association president, Mr. Ficken and Ms. Bottema, the property at
appellants’ home to discuss what type of privacy screen could be built
37.
on appellants’ property. No Violation Letters were issued in August,
September or November of 2013.
On October 22, 2013, appellants received a second Violation Notice
stating the Privacy Screen as rebuilt violated the rules and deed
restrictions of the Association.58 In response to the October 22, 2013,
Second Violation Notice the appellant, Wesley Spears sent a letter to the
property manager, Diane Bottema, dated October 23, 2013, which states
in pertinent part:
“In that letter you cite an alleged violation of the rules of the
Homeowners’ Association”:
“Improvement-‐improvement not in conformance with the
CCRs/Rules of the association. Comments: Lattice work on top of
the fence not in conformance with Falcon Pointe Community HOA
guidelines…”59
The Violation Notice did not cite the specific deed restriction
appellant(s) allegedly violated. The subject Violation Notice also
38.
provides an invalid cure date of “before the August inspection” even
though the Violation Notice was dated October 22, 2013, and the
Hearing on the subject Violation Notice was held on November 11, 2013.
In regards to defective Violation Notice as outlined in Appellants’
Motion for Partial Summary Judgment, the Texas Property Code and the
Bylaws of the Association, provide that in order for a Homeowner’s
Association to take enforcement action it must provide the homeowner
with Notice that provides the specific deed restriction that the
Homeowner is alleged to have violated and to provide a reasonable cure
date. Appellants’ Motion for Summary Judgment provided in pertinent
part as follows regarding the issue of defective Violation Notices:
The Second Violation Notice, just like the First Violation Notice
does not cite any specific rule(s) and/or deed restriction(s) that the
Association claims that the appellants violated, on that basis alone
appellants’ Motion for Partial Summary Judgment should have been
granted.
A Hearing of the subject Violation Notice was held by the Board of
the appellee, on November 11, 2013. The matter was heard by two
39.
directors, Ranier Ficken, president and William Meyers, vice president
of the appellee, who are also both high ranking employees of the
Developer, Newland Communities. The neighborhood representative on
the board did not appear or vote at the subject hearing.
The Hearing was conducted at the direction of Alex Valdes, an
attorney for the appellee. Mr. Valdes announced the decision of the
Board, on November 26, 2013, in a letter to appellant, Wesley Spears,
which states as follows:
“Upon careful consideration of all the facts and circumstances
exercise their business judgment as to the best interests of the
Association, the Board has made a final determination regarding your
installation of improvements and modifications that were not approved
by the Association. The Board hereby reaffirms and upholds it’s
previous decision regarding the violation set forth in its prior
correspondence to you.”60
Just like the subject Violation Notice, Attorney Valdes’ letter cites
no deed restriction that appellants were alleged to have violated or
upon which the Board’s decision was based. The decision of the board
of the Association was based on the “business judgment” of the Board of
Directors of the Association.61
Accordingly, the Hearing, which was based on a defective Notice
40.
and which cites no specific deed restriction upon which the board’s
ruling was based was invalid as a matter of law. The only valid basis for
the taking the enforcement action by a homeowners’ association against
a homeowner is the violation of a specific deed restriction.
A “business decision” is not a valid basis for finding the appellants
where in violation of unspecified deed restrictions. In fact, the Texas
Property Owners’ Protection Act was intended to protect homeowners’
from Homeowners’ Associations from exercising of business judgments
that restricts the homeowners’ use of their property, based on any
reason other than the violation of a deed restriction.
(A) THE SUBJECT NOTICE OF VIOLATION IS DEFECTIVE.
The subject Notice of Violation, which was sent to the appellants,
at the direction of appellee’s, property manager, Diane Bottema was
defective and did not comply with the requirements of Texas Property
Code § 209.006, and the Bylaws and Rules of the Association.62
The Bylaws of the Association provide in pertinent part as
follows:
(a) Notice. Prior to the imposition of any sanction hereunder,
the Board or its delegate shall serve the alleged violator with written
notice describing (i) the nature of the alleged violation, (ii) the proposed
sanction to be imposed, (iii) a period of not less than the (10) days
41.
within which the alleged violator may present written request to the
Board of Directors for a hearing; and (iv) a statement that the proposed
sanction shall be imposed as contained in the notice unless a challenge
is begun within ten days (10) days of the notice. If a timely challenge is
not made, the sanction stated in the notice shall be imposed.
(b) Hearing. If a hearing is requested within the allotted ten
(10) day period, the hearing shall be held in executive session affording
the alleged violator a reasonable opportunity to be heard. Prior to the
effectiveness of any sanction hereunder, proof of proper notice shall be
placed in the minutes of the meeting. Such proof shall be deemed
adequate if a copy of the notice, together with a statement of the date
and manner of delivery is entered by the officer, Director, or agent who
delivered the notice. The notice requirement shall be deemed satisfied
if the alleged violator appears at the meeting. The minutes of the
meeting shall contain a written statement of the results of the hearing
and the sanction, if any, imposed. The Board of Directors may, but shall
not be obligated to, suspend any proposed sanction if the violation is
cured within the ten (10) day period. Such suspension shall not
constitute a waiver of the right to sanction future violations of the same
or other provisions and rules by any Person.63
Appellants did not appear at the Hearing because the Violation
Notice were defective and failed to give the appellants’ adequate notice
of the specific deed restriction that appellants’ were alleged to have
violated. Further, the bylaws provided that a homeowner waives notice,
if they appear at the Hearing, so appellants did not appear and,
therefore, appellants did not waive proper notice.
The Bylaws require the Association to send a Notice, which
42.
provides the “nature”, (emphasis added) of the alleged violations.
Restrictive covenants are subject to general rules of construction.
Hodas v. Scenic Oaks Property Ass’n, 47 S.W. 2d 747 (App. 4 Dist. 2000).
Accordingly, the court must give a restrictive covenant’s words and
phrases their commonly accepted meaning. In this case, the by-‐laws of
the Association requires it to state the specific deed restriction and rule
that the appellants’ are alleged to have violated. The explicit language of
the by-‐laws requires the Association to identify the “nature” of the
violations, which requires the Association to identify the specific deed
restriction the appellants were alleged to have violated.
The Court of Appeals, in Ashcreek Homeowner’s Association v.
Smith, 902 S.W.2d 586 (App. 1 Dist. 1995), the leading case on defective
Notice(s) under the Texas Property Code as it relates to Homeowners’
Associations held that a Notice was defective and a Hearing invalid
because of the Association’s failure to identify the specific deed
restriction the homeowner’ was alleged to have violated. The Ashcreek
by-‐laws, which the court interpreted, were almost identical to the By-‐
laws of the Association in this case.64 The Court in the Ashcreek case
43.
held, that the Notice of Violation must cite the specific deed restriction
that the homeowner is alleged to have violated and the Association must
hold a Hearing based on the specific provision of the deed restriction(s)
the homeowner is alleged to have violated.
Therefore, as a matter of law the subject Violation Notice was
defective because the failed to cite the specific deed restriction(s)
and/or rule(s) the appellants are alleged to have violated. Further, the
subject Violation Notice also failed to identify a specific cure date simply
saying comply before the “August inspection”, which was particularly
invalid in regards to the subject Notice of Violation which is dated
October 22, 2013.65
Even if the Appellee argues that no cure date was necessary
because this was a second violation, once the subject Violation Notice
provides a cure date, it must provide a valid cure date, which complies
which the Texas Property Code, § 209.006, and the bylaws of the
Association. A cure date of before the August inspection for a violation
that allegedly occurred in October is clearly defective.
44.
Texas Property Code § 209.006 provides that Notice is Required
Before Enforcement Action:
(a) Before a property owners’ association may suspend an owner’s
right to use a common area, file a suit against an owner other than
a suit to collect a regular or special assessment or foreclose under
an association’s lien, charge, an owner for property damage or
levy a fine for a violation of the restrictions or bylaws or rules of
the association, the association or it’s agent must give written
notice to the owner by certified mail, return receipt requested.
(b) The notice must:
(1) describe the violation or property damage that is the basis for
the suspension, action, charge, or fine and state the amount
due the association from the owner, and…
“While a restrictive covenant should be liberally
construed to give effect to the purpose and intent, equitable
principles require that covenants restricting free use of land
which give rise to ambiguity or substantial doubt as to
interpretation be construed strictly in favor of the homeowner
and the ambiguity is resolved in favor of the free and unrestricted
use of the premises.” Simon Property Group (Texas) L.P. v. May
Dept. Stores Co., 943 S.W. 2d 64 (Tex. App. Corpus Christi 1997);
Macdonald v. Painter, 441 S. W. 2d 179 (Tex. 1969); J. P. Bdg.
Enterprises, Inc., v. Timberwood Development Co., 718 S. W. 2d 841
(Tex. App. Corpus Christi 1986 , writ refused n.r.); City of Pasadena
v. Gennedy, 125 S.W. 687 (Tex. App. – Houston [14th District]).
Pheasant Run Homeowners Ass’n, Inc., v. Kastor, 47 S.W. 2d 74 (Tex.
App. _ Houston [14th District]) 2001; Munson v. Milton, 948 S.W. 2d
813 (Tex. App.-‐ San Antonio 1997).
In Davis v. Huey, 620 S.W. 2d at 566, the Texas Supreme
45.
Court addressed the validity of covenant requiring submission of
construction plans to an “architectural control committee”, while
applying Texas common-‐law rules of construction. In this case, the
subdivision developers attempted to enjoin Davies from building a
home on their lot, citing a refusal of the architectural control
committee to approve their plan for construction. The court found
that the developers had exceeded their authority, and determined
that the restrict covenant was void. Id. at 566.
The Texas Supreme Court extended the rules in the Davis
Case in Wilmoth v. Wilcox, 743 S.W. 2d at 658.
“The court again employed the strict construction
standard requirements established in the Davis case to construe
restrictive covenants strictly against the party seeking to enforce
it. Davis and its progeny provide a common-‐law strict
construction of restrictive covenant to protect property owners
by construing covenants with ambiguous language in favor of the
free and unrestricted use of real property. In 1987, the Texas
legislature enacted chapter 202 of the Texas Property Code. This
chapter was intended to create a mechanism for developers and
property owner associations to enforce restrictive covenants.”
In the Ashcreek case the court stated:
“This Court recently addressed this issue in Crispin v. Paragan
Home, Inc., 888 S.W. 2d 78 (Tex. App.-‐Houston [1st Dist.]
1994, writ denied.) There we concluded that:
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We are unable to discern a conflict between liberally
construing a restrictive covenant to give effect to its
purpose, and construing a restrictive covenant either in
favor of the free and unrestricted use of land or to strictly
construe it against a party seeking enforce it
Furthermore, section 201.003(a) was effective… The
supreme court in Wilmoth on July 1, 1987, and denied a
motion for rehearing on September 16, 1987. In its
decision, the Supreme Court also failed to recognize that
the property code had overruled the principles upon
which relied.
Id. At 81, n.1.
In this case, appellants were not given any indication of what
specific deed restriction they are alleged to have violated and, thus
appellants were denied legal Notice and a fair Hearing. The court’s
ruling in Ashcreek reiterates a simply principle that before a
homeowner’ can be found in violation of the deed restriction(s) of the
Association they must receive Notice of the specific provision of
the deed restriction(s) they are alleged to have violated and they must
be given a fair Hearing based on the specific deed restriction the
homeowner’ is alleged to have violated.
In this case, the appellee clearly based its decision on a business
decision and said so in a letter from their counsel announcing the
decision of the Board. The Board’s decision was based on a “business
47.
decision” as to the best interests of the Association (in other words the
best interest of the developer, Newland Properties, who the only voting
members of the Board worked for), not because a violation of a deed
restriction.
The appellants were denied their most basic rights, that of
reasonable Notice and a fair Hearing with a reasonable opportunity to
be heard and present evidence, “due process”. Allowing a homeowners’
association to take enforcement action without giving a homeowners
specific notice of the deed restriction that it claimed the homeowner
violated is a denial of due process. It would be akin to charging a
person with a crime and not telling them what offense they were
charged with.
(B) APPELLEE VIOLATED TEXAS PROPERTY CODE 209.005
AND REFUSED TO PRODUCE RELEVANT DOCUMENTS TO WHICH
APPELLANTS WERE ENTITLED TO OBTAIN BY STATUTE
Appellee has violated the Texas Property Code § 209.005, by failing
to provide appellants with the properly requested records of the
appellee. Appellants’ have made numerous requests pursuant to Texas
Property Code § 209.005, for records of the Association.66 As part of
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appellee’s dilatory strategy, counsel for appellee objected to producing
the records primarily arguing that since suit has been filed all requests
for documents must be made by a formal document requests.67
Appellants are unaware of any legal authority, which suspends
appellee’s obligations under Texas Property Code § 209.005, to make
the books and records of the Association reasonably available to
homeowners’ after they have filed suit.
Texas Property § 209.005 in pertinent part provides:
(c) Notwithstanding a provision in a dedicatory instrument, a
property owners’ association shall make the books and records of
the association, including financial records, open to and
reasonably available to for examination by an owner, or a person
designated in a writing signed by the owner as the owners’ agent,
attorney, or certified public accountant, in accordance with this
section. An owner is entitled to obtain from the association
copies of information contained in the books and records…
(i) ….An Association may not charge an owner for the compilation,
production, or reproduction of information requested under
this section unless the policy prescribing those costs has been
recorded as required by this subsection.
The appellee is in violation of the Texas Property Code § 209.005,
because of its failure to produce any records pursuant to appellants’
many requests for the production records. Appellants’ first request
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sent, pursuant to the Texas Property Code, was dated December 9, 2013,
and was sent to the Appellee by certified mail.
The letter requested a summary of the dedicatory violation history
of the Association, with confidential information redacted as specifically
provided in Texas Property Code § 209.005.68 The Appellee has refused
to provide any records pursuant to appellants’ five requests for
documents pursuant to Texas Property Code § 209.005.69 The appellee
has never communicated to the appellants that they were unable to
produce the records as required by, § 209.005 (f)(1)(2) of the Texas
Property Code.
The appellee and the trial court took the position that the Texas
Property Code is not applicable after appellants filed suit with regards
to the Association’s obligation to make the books and records of the
Association reasonably available to appellants.70 The court Phillips J.,
went so far as to say that appellants should have obtained the records
before filing suit.71
In fact, the limited authority discovered by appellants’ counsel,
suggests that the statutory rights of the appellants to records of appellee
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do not change after suit is filed. Appellee has refused to produce
documents requested pursuant to a series of requests that Appellants’
have made pursuant to Texas Property Code, § 209.005, saying while
this matter is in litigation any requests for documents must be made as
a formal document request.72
From December 9, 2013, until the parties’ Cross Motions for
Summary Judgment the appellants’ have made several other Formal
Discovery Requests for records which complies with Texas Property
Code § 209.005 and the Association has failed to follow the procedure
laid out in Texas Property Code § 209.005, and simply refused to provide
the requested information.73
Appellants’ first formal request dated December 9, 2013, was
contained in a certified letter to Diane Bottema, property manager,
requested:
“I am again requesting a copy of the dedicatory violation history of
the Falcon Pointe Community Association. I am also requesting a
summary of the fines imposed for each violation identified. To be
perfectly clear, I am not seeking the identity or names and addresses of
the Homeowners’ involved. I agree any information regarding the
identity of homeowners may be redacted or otherwise deleted.”74
51.
In response to that request appellants were advised pursuant to a
letter dated January 13, 2013, letter from an attorney who represented
the Association:
“The Association will comply with all lawful requests for
documents submitted under the Property Code. Under Texas
Property Code § 209.005, certain records must be made available;
however, a property owners’ association “is not required to release or
allow inspection of any books or records that identify the dedicatory
instrument violation history of an individual owner of an association.”
“To the extent that you wish for a summary of information. I
believe that should be requested through an interrogatory now that this
matter is in litigation and the parties are conducting discovery. To the
extent that your letter constitutes a discovery request, Falcon Pointe
Community Association objects to the discovery request, as vague,
overbroad, unduly burdensome, and seeking information that is neither
relevant nor likely to lead to the discovery of any relevant or admissible
evidence. In addition, objection is made insofar as the requests (sic)
seek information that is confidential under Texas law”.75
Appellants’ request for production of a summary dedicatory
violation history of the Association, with all confidential information
redacted was entirely consistent with Tex. Prop. Code § 209.005. On May
23, 2014, appellants’ sent a letter certified mail to counsel for appellee
asking for copies of all financial records of the Association.76
Appellants’ received the following response to that request pursuant to
a letter from David Campbell dated June 10, 2014:
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“I write this correspondence in response to your letter dated May
23, 2014, in which you state that you “wish to get copies of the financial
records” of appellee, Falcon Pointe Community Association. Any
requests for documents should be submitted as a formal discovery
requests as this matter is in litigation. After receiving your letter, we
have received a request for production “any and all of the books and
records of the Falcon Pointe Community Association, including but not
limited to all financial records….” Defendant Falcon Pointe Community
Association will respond to this discovery request pursuant the Texas
Rules of Civil Procedure.77
On June 12, 2014, appellants’ sent a certified letter to Diane
Bottema, Property Manager for the Association requesting the following
documents:
“I hereby requests copies of all of the books and records of the
Falcon Pointe Community Association pursuant to the Texas Property
Code”.78
Appellants’ received the following reply to that request in
pertinent part:
“As this matter is in litigation, all requests for documents should
be submitted as a formal discovery request to the Falcon Pointe
Community association (“Falcon Pointe”) through it’s counsel.”79
By letter dated June 20, 2014, appellee reiterated its position that
any request for documents had to be made by formal document
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request.80 Appellee’s attorneys’ have also requested that appellants
make discovery requests formally in court.81 The only documents
appellee’s have released to appellants were a copy of it’s policy of
insurance, and less than twenty pages of minutes of irrelevant board
meetings and two Budgets. Those documents were produced by Ranier
Ficken, President of the Association pursuant to the Notice to take his
Deposition Duces Tecum that requested virtually all of the records of
the Association.82
Those documents were produced pursuant to the Notice to Take
the Deposition Duces Tecum, of Ranier Ficken, the president of the
Association. Appellee has refused to produce any correspondence
between the parties or any other document relevant to this case. The
appellee even refused to produce copies of the subject Violation Notice.
Appellants have requested formal discovery in the form of
Requests for Production of Documents and Notice to take Depositions
Duces Tecum. Appellants have requested copies of all books and
records of the Association. The attorney for the appellee indicated that
appellee would not comply with future requests for documents unless
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they were submitted and ordered through the court in violation of Texas
Property Code § 209.005.83
Appellants’ requests were made to the appellee pursuant to Texas
Property Code, § 209.005 which grants to the appellants a statutory right
to the requested documents. Appellee cannot escape its responsibilities
under Texas Property Code § 209.005, by relying on the claim that once
appellants’ filed suit they must make a formal discovery requests to
obtain the requested documents and then appellee is free to assert
standard discovery objection to the production.
The appellee has circumvented the rights granted homeowners’
under Texas Property Code § 209.005. The books and records of the
Association belong to the homeowners’ of the Association, and
therefore, the rules of evidence do not effect the obligation of the
appellee to release records requested pursuant to Texas Property Code§
209.005. The appellants have made numerous formal requests under
Texas Property Code § 209.005, after filing suit in this matter, as well as
numerous discovery requests.
The appellee has refused to produce the requested documents
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responding by saying since suit has been filed, appellants must make an
official document request in the lawsuit in order to obtain the books and
records of the Association and the trial court must order the same.
Appellee is basically saying any homeowner’ except the appellants are
entitled to copies of the books and records of the Association, because
they filed suit.
Homeowners’ who have filed suit are the homeowners’ who need
the books and records of the Association the most. Appellee should
have been found by the trial court, as a matter of law to have violated
Texas Property Code § 209.005, for failing to produce the books and
records of the Association pursuant to appellants’ many requests
enumerated above.
The trial court should have also granted appellants’ Motion for
Partial Summary Judgment and denied appellee’s Motion for Traditional
and No-‐Evidence Summary Judgment. Further the trial court refused to
hear appellants’ three Motions to Compel the production of documents
and witnesses in violation of its’
own policy.
56.
In Burton v. Cravey, 759 S.W. 2d 160 (Houston 1st District 1988):
The Court of Appeals, Duggan, J., held absent proof by association of
improper purpose for inspecting records, owners were entitled to
inspect all pertinent records including those of association’s attorney.
In this case, appellants’ numerous requests for documents were
necessary in order for the appellants to prosecute their Declaratory
Judgment Action, which included claims of deceptive trade practices.84
In the Burton case the court, rejected appellee’s argument that the
request for inspection of records were subject the rules of discovery,
specifically rejecting the appellee’s argument that the request was
unduly burdensome. Ruling that unduly burdensome was not
applicable to appellants’ statutory requests for records. Accordingly,
this court should also reject the appellee’s argument that appellants’
requests were unduly burdensome and not relevant which are the only
reasons appellee has put forth for not producing the requested copies of
the books and records of the appellee.
57.
2. DID THE TRIAL COURT, PHILLIPS, J., ERR IN REFUSING TO
RULE ON APPELLANTS’ THREE MOTIONS TO COMPEL AND MOTION
FOR CONTINUANCE TO COMPLETE DISCOVERY PRIOR TO RULING
ON THE PARTIES’ CROSS MOTIONS FOR SUMMARY JUDGMENT.
Fundamental requirements of due process demand that a party be
given a reasonable opportunity to be heard U.S. Const. Amendment 14.85
Similarly, the Constitution of the State of Texas provides that “no citizen
of this State shall be deprived of life, liberty, property, privileges or
immunities, or in any manner disenfranchised, except by the due course
of the law of the land. Texas Const. Art. 1 §19.86
The purpose of discovery is to allow the parties to obtain the fullest
knowledge of facts and issues prior to trial. West v. Solite, 563 S.W. 2d
240, 243 (Tex. 1978). Thus, orders prohibiting discovery may constitute
an abuse of discretion. See Helfand v. Coane, 12 S.W. 3d 152, 155 (Tex.
App. Houston [1st Dist.] 2000, pet denied), also Tex. R. Civ. P. 192.3, (“A
court abuses its discretion in unreasonably restricting a party’s access
to information through discovery.”).
The rule regarding the scope of discovery is broad. “In general a
party may obtain discovery regarding any matter that is not privileged
and is relevant to the subject matter of the pending action, whether it
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relates to the claim or defense of the party seeking discovery or the
claim or defense of any other party.” TEX CIV. 192.3 (a). This rule
reflects the ultimate purpose of discovery, which is to “seek truth, so
that disputes may be decided by those facts that are revealed, rather
than concealed.” Axelson, Inc., et al., v. The Honorable Grainger W.
McIIhany, 798 S.W. 2d 550, 555 (Tex. 1990). Due process in all cases is
necessary to insure that all people have equal rights to petition the
court and to be heard and have equal protection of the law. A trial court
abuses its discretion when it acts without reference to any guiding rules
and principles, or in other words acts in an arbitrary or unreasonable
manner. Downer v. Aquamarine Operations, Inc., 701 S.W. 2d. 238, 241-‐
242 (Tex. 1985), cert denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed. 2d 721
(1986).
Before granting a no-‐evidence motion for summary judgment the
trial court must allow the non-‐movants an adequate time for discovery.
Tex. R. Civ. Proc. 166a(1). In determining whether the trial court has
allowed adequate time for discovery, the reviewing court should
determine (a) the nature of the case; (b) the nature of evidence
59.
necessary to controvert the no evidence motion; (3) the length of time
the case was active; (4) the amount of time the no evidence motion was
on file; (5) whether the movant for summary judgment had requested
stricter deadlines for discovery; (6) The amount of discovery that had
already taken place; and whether the discovery deadlines in place were
specific or vague. Moorehouse v. Chase Manhattan Bank, 76 S.W. 3d 587,
591 (Tex. App—San Antonio 2002, no writ); Martinez v. City of San
Antonio, 40 S.W. 3d 587, 591 (Tex. App.—San Antonio 2001, pet denied).
Appellants’ have been denied due process by the refusal of Judge
Phillips to allow them to be heard on their three Discovery Motions and
Motion for Continuance to Complete Discovery, before ruling on the
parties’ Cross Motions for Summary Judgment. There is no justifiable
reason why Judge Phillips refused to hear Appellants’ properly filed
three Motions to Compel Discovery and Motion for Continuance to
Complete Discovery. The discovery sought by appellant was intended to
respond to the appellee’s Motion for Summary Judgment. Brewer &
Pritchard, PC v. Johnson, 167 S.W. 3d 460, 469 (Tex. App.—Houston (14th
Dist.) 2005, rehearing overruled).
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A litigant who blocks discovery and withholds evidence cannot
use the non-‐movant’s lack of evidence to win a summary judgment.
Tempay, Inc., v. TNT Concrete & Construction, Inc., 37 S.W. 3d 517, 521-‐
522 (Tex. App.—Austion 2001, no writ) citing Robert W. Clore, Texas Rule
of Civil Procedure 166a(1); A New Weapon for Texas Defendants, 29 St.
Mary’s L. J. 813, 843 (1998). “The ultimate purpose of Discovery is to
seek the truth so that disputes are decided by what the facts reveal, not
by what facts are concealed.” Jampole v. Touchy, 673 S.W. 2d 569, 573
(Tex. 1984).
In this case, the Motion for Continuance to Complete Discovery
was not only timely filed but it states a number of irrefutable reasons
why the Motion should have been heard and granted. The Motion was
also verified and had a detailed affidavit explaining the specific need for
the requested discovery.87
The subject case has been on file for ten months prior to the court
granting Appellee’s Motion for Traditional No-‐Evidence Summary
Judgment. The discovery cutoff set by Judge Phillips was September 30,
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2014. The court granted appellee’s Motion for Traditional and No-‐
Evidence Summary Judgment on September 15, 2014.88 Appellants
have filed Six Motions to Compel Discovery and, only three have been
heard.
The Motions were made necessary by the planned dilatory actions
of defense counsel in refusing to cooperate with discovery. Appellants
did not even have the transcripts of the two depositions they were
allowed to take of Ranier Ficken, president of the appellee and Diane
Bottema, the property manager, at the time the Summary Judgment
Briefs in this matter were due in the trial court.89
The appellate court, in Nelson v. PNC Mortgage Corp., 139 S.W. 3d
442 (2004), held: “But Nelson, even as an incarcerated prisoner was
entitled to a ruling on the numerous discovery motions he filed and
requests to be heard. The trial court’s failure to rule on Nelson’s
discovery motions foreclosed any possibility of Nelson exercising his
right to obtain reasonable discovery before summary judgment was
rendered against him.” Id. at 444, 445. The court also ruled that the
court should have held a hearing on Nelson’s Motion for Continuance.
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The court went on to state:
“In reviewing this case on appeal our concern is not so much with
the alleged errors in the trial court rulings. Instead, our concern lies
with the trial court’s repeated failure to hear or rule on the numerous
Motions filed by Nelson despite Nelson’s persistent requests for action.
A trial court is required to consider and rule upon a motion within
a reasonable time. See In re Ramirez, 994 S.W. 2d 682, 683 (Tex. App.
San Antonio 1998, orig. proceeding). In this case the vast majority of
Nelson’s Motions were never ruled on. Yet Washington Mutual and
Barrett Burke’s were set promptly and ruled on in Nelson’s absence. ” Id.
at 444.
“The trial court granted summary judgment against Nelson
without giving any apparent consideration to his discovery motions
before ordering that he take nothing by his claims, Nelson was not given
a reasonable opportunity to be heard on the significant issue of his
access to evidence that may have supported his claims. Fundamental
requirements of due process demand that a party to cause be given and
opportunity to be heard. Cf. Creel v. Dist. Attorney for Medina County,
63.
818 S.W. 2d 45, 46 (Tex. 1991).
“In his motions to continue the hearing on Washington Mutual
and Barrett Burke’s Motion for Summary Judgment, Nelson made the
trial court aware of the fact it had not ruled on his pending discovery
motions including motions to compel discovery.” Id. at 444. The Nelson
case is factually analogous to this case. Appellants filed six Motions to
Compel Discovery, three of their Motions remain unheard. Appellants’
Motion for Continuance to Complete Discovery also remains unheard.
Repeatedly in this case the trial court, Phillips, J., refused to grant
the discovery requested by appellants. The trial court repeatedly
granted appellee’s requests that the appellants’ requested discovery be
blocked and stopped. However, appellee cannot block discovery and
then be granted dismissal of appellants’ causes of action. Fair play, Rule
166a and due process do not allow this maneuver. Tex. R. Civ. Proc.
166a; Tempay, Inc. v. TNT Concrete Construction, Inc., 37 S.W. 3d 517,
521-‐522 (Tex. App—Austin 2001, no writ) citing Thomas R. Phillips, Texas
Supreme Court Update, 60 Tex. B.J. 858, 861 (1997); Brewer & Pritchard,
PC v. Johnson, 167 S.W. 3d 460, 469 (Tex. App.—Houston [14th Dist.] 2005,
rehearing overruled); Jampole v. Touchy, 673 S.W. 2d 569, 573 (Tex.
64.
1984).
The trial court erred and abused its discretion, when it granted
appellees’ demands to block and stop appellants’ requested Discovery,
and then dismissed appellants’ causes of action by granting appellee’s
No-‐Evidence and Traditional Motion for Summary Judgment and
awarding attorneys’ fees. The trial court’s granting of the No Evidence
and Traditional Motion for Summary Judgment should be reversed and
the court ordered to direct a verdict for the appellants’ on their Motion
for Partial Summary Judgment and to remand appellants’ other claims
for full discovery and a trial on the merits.
3. DID THE TRIAL COURT, PHILLIPS, J., ERR IN DISMISSING
APPELLANTS’ TEXAS DECEPTIVE TRADE PRACTICES ACT CLAIMS
CONTAINED IN THEIR FOURTH AND FIFTH AMENDED COMPLAINTS
Appellee has violated the Texas Deceptive Trade Practices Act,
(hereinafter “DTPA”).90 V.T.C.A., Bus. & C., Section 17.50: (a), in two
regards. First, as outlined above the property manager, Diane Bottema
made false and misleading statements orally and in writing that
appellants’ were not entitled to a Hearing of their alleged violations of
the deed restrictions, in matters of clear violations of the rules of the
65.
Association.
Based on the property managers misrepresentation of the
appellants did not request a Hearing regarding the first Violation Notice
and tore down the lattice from their fence, as demanded by appellee.
Appellants consequently suffered damage for the fair value of the
materials and labor expend to add the lattice to the fence and to remove
it.
While this matter was pending, appellant, Wesley Spears applied to
be on the ballot to be a voting Neighborhood Representative of the
Association, the election was held on June 7, 2014. Appellant, Wesley
Spears’ name was intentionally omitted from the Ballot for
Neighborhood Representative by Appellee, effectively disenfranchising,
appellant, Wesley Spears, an African American attorney.
What is very ironic is this occurred in a courthouse named for the
first african-‐american student at the University of Texas, School of Law.
Heman Marion Sweatt was denied of his dream of becoming a lawyer,
because of discrimination. After climbing the ladder on the backs of
great men like Marion Sweat, appellant, Wesley Spears, who was born in
the same year
66.
Marion Sweat became the first african-‐american law student at the
University of Texas, and appellant, Wesley Spears, became a lawyer in
1979, twenty five years later. Nevertheless, appellant, Wesley Spears
was denied his most basic human rights that is to serve in an elected
position.
Ranier Ficken, President of Appellee, testified at his deposition, that
there was no reason why Appellant’, Wesley Spears’ name was not
placed on the Ballot for Neighborhood Representative.91 It was a
violation of DTPA for the appellee to deny appellant, Wesley Spears of
his basic civil and human rights to apply and serve in an elective
position because he has brought a lawsuit or because he is African-‐
American.
Appellants, in addition, to the affidavit of appellant, Wesley Spears,
provided two affidavits from residents of Falcon Pointe who live on
Appellants’ street, who also affirmed that appellant, Wesley Spears
name was not on the Ballot for neighborhood representative when they
attempted to vote for him on June 7, 2014.92
Plaintiff also provided copies of the election Ballot that omitted
67.
Appellant, Wesley Spears’ name downloaded from Appellee’s website.93
Election Ballots dated June 7, 2014, the same Ballot was again
downloaded by appellants from appellee’s website on August 17, 2014,
neither ballot contained, appellant, Wesley Spears’ name.
Appellants were denied the right to fully develop their DTPA claim
regarding election fraud since the facts giving rise to the claim occurred
approximately ninety days before the court granted appellee’s No-‐
Evidence and Traditional Motion for Summary Judgment The court did
not allow any oral argument regarding plaintiffs’ DTPA. Appellants
moved to Compel the Deposition of Natalie Boykin, the Property
Manager, of the appellee who replaced Diane Bottema and conducted
the election that is the subject one of Appellant’s Deceptive Trade
Practices Act claims.
Appellee filed a Motion to Quash Appellants’ Motion to Compel the
Deposition of Natalie Boykin.94 The court refused to hear appellants’
Motion to Compel Natalie Boykin’ Deposition even though it was timely
filed and appellants made two requests, to the Court Operations for
appellants’ three Motions to Compel to before the hearing of the parties’
Cross Motion’s for Summary Judgment. The emails informed Mr.
68.
Sanders that counsel for the appellee refused to agree to a date on or
before the Hearing of the parties’ Cross Motions for Summary Judgment.
Ms. Boykin was the property manager who conducted the election,
which appellants second DTPA claim is based. Clearly, her testimony
was relevant to whether there was election fraud since she was in
charge of conducting the election and was the current property
manager.
Texas’ DTPA, V.T.C.A., Bus. & C., Section 17.50: (a) A consumer may
maintain an action where any of the following constitute a producing
cause of economic damages or damages for mental anguish:
(1) the use or employment by any person of a false, misleading, or
deceptive act or practice that is:
(A) specifically enumerated in a subdivision of Subsection (b) of
Section 17.46 of this subchapter; and…..
V.T.C.A., Bus. & C. Section 17.46:
(a) False, misleading, or deceptive acts or practices in the conduct
of any trade or commerce are hereby declared unlawful and are subject
to action by the consumer protection division…
69.
(3) any unconscionable action or course of action by any person;
or…
(12) representing that an agreement confers or involves rights, or
remedies or obligations which it does not have or involve, or which are
prohibited by law…
Appellants as homeowners are clearly consumers of the services of
the Association they pay dues and receive services. Courts liberally
construe the DTPA and give it the most comprehensive application
possible without doing damage to its terms. Clary Corp., v. Smith, 949
S.W. 2d 452, 464 (Tex. App.—Fort Worth 1997, no writ); In addition, a
appellants do not have to prove he actually acquired goods or services.
See e.g. Nast v. State Farm Fire & Cas. Co., 82 S.W. 2d 42, 47 ( Tex. App.—
Corpus Christie 1990 (no pet.) The appellee owed appellants a fiduciary
duty of good faith and fair dealing. Appellee failed to fulfill its fiduciary
obligation to the appellants by refusing to produce documents properly
requested from appellee.
The DTPA defines “unconscionable action or course of action” as
follows: (5) “Unconscionable action or course of action” means an act or
70.
practice which to a person’s detriment:
(A) takes advantage of the lack of knowledge, ability experience or
capacity of a person’s to a grossly unfair degree; or
(B) results in a gross disparity between the value received and
consideration paid, in a transaction involving transfer of consideration.
The relevant inquiry examines the entire transaction, not the
defendant’s intent. Chastain v. Koonce, 700 S.W. 2d 579, 584 (Tex. 1985);
see also Brown v. Galleria Area Ford, Inc., 752 S.W. 2d 114, 116 (Tex.
1988); State Farm Lloyds v. Nicolau, 951 S.W. 2d 444, 451 (Tex. 1997).
The relevant inquiry examines the entire transaction, not the
defendant’s intent. Chastain, 700 S.W. 2d at 583. In addition, there must
be a showing of what the consumer could have or would have done if he
had known about the information. Peter Enters, Inc., v. Hilton, 51 S.W. 3d
616, 623 (Tex. App-‐-‐Tyler 2000, pet. denied).
Clearly, it would be an unconscionable course of action for appellee
to prevent appellant, Wesley Spears, to serve in an elected position,
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