Wesley Spears and Renee Jacobs v. Falcon Pointe Community Homeowner's Association

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

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

of the

Case…………………………………………………………………………………………….. 1

Regarding Oral

Argument……………………………………………………………………………………...4

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.

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.

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.

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 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 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 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:

46.

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

48.

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

49.

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

50.

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:

52.

“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

53.

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

54.

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

55.

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

58.

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).

60.

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,

61.

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.

62.

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, for

which he is legally eligible, as a neighborhood representative of the

appellee because of his race or the fact he filed suit to address

71.

grievances against the appellee or for any other purported reason.

Likewise, it is a violation of the V.T.C.A., Bus., & C Section 17.50: to

represent that an agreement confers or involves rights or remedies or

obligations which it does not have or involve or which is also a violation

of the law.

In this case this appellants were denied there right to a

Hearing of the first Violation Notice due to the misrepresentation of

their rights perpetrated by the property manager, Diane Bottema as

outlined above.

Appellants produced much more than a scintilla of

evidence to support their claims.

Appellants produced an email from the property manager,

misrepresenting the law, and saying in matters of clear violations the

president of the Association can act on behalf of the Board to support

their first DTPA claim.

The laws governing the conduct of Associations,

was designed to protect homeowner’s from the arbitrary actions of

Homeowners’ Associations.

The court abused its discretion by

dismissing appellants’ DTPA claims and without hearing any argument

regarding appellants’ claims.

72.

4. DID THE TRIAL COURT PHILLIPS, J., AND WIZER J., ERR

BY DENYING APPELLANTS’ MOTION TO RECUSE JUDGE PHILLIPS

FROM PRESIDING OVER THIS MATTER.

Recusal of judge is concerned not only with actual personal or

pecuniary interests, but also the appearance of impartiality.

Beyond the

demand that judge be impartial is the requirement that a Judge appear

to be impartial so that no doubts or suspicions exist as the fairness or

integrity of the court.

Vernon’s Ann. Texas Rules of Civ. Proc., Rule

18b(b)(1).95

There is no standard of appellate review specifically

enumerated in Rule 18a for the denial of a Motion to Disqualify.

Pursuant to Texas Rules of Civ. Proc., Rule 18a (j) (2) application of an

abuse of discretion standard is the appropriate standard to review the

denial of appellants’ Motion to Recuse Judge Phillips.96

An abuse of discretion occurs when the trial court acts arbitrarily

and unreasonably, without reference to guiding rules or principles or

misapplies the law to the facts of the case.

The reviewing court must

determine whether the trial court’s action was so arbitrary as to exceed

the bounds of reasonable discretion.

Marroquin v. D & N Funding, Inc.,

943 S.W. 2d 112, 114 (Tex. App.—Corpus Christi 1997, no pet.);

Low v.

73.

Henry, 221 S.W. 2d 609, 614 (Tex. 2007); Cooper Tire & Rubber Co. v.

Mendez, 204 S.W. 3d 797, 800 (Tex. 2006);

In re Cerebus Capital Mgmt.,

L.P., 164 S.W. 3d 379, 382 (Tex. 2005); Cire v. Cummings, 134 S.W. 3d 835,

838-­‐39 (Tex. 2004); Downer v. Aquamarine Operations, Inc., 701 S.W. 2d

238, 241-­‐242 (Tex. 1985).

A trial court abuses it’s discretion when it reaches a decision so

arbitrary and unreasonable that it amounts to a clear and prejudicial

error of law.

In re Olshan Found Repair Co., 328 S.W. 3d 883, 888 (Tex.

2010); In re Cerebus Capital Mgmt., L.P., 164 S.W. 3d 379, 382 (Tex. 2005).

Essentially, when reviewing issues committed to the discretion of the

trial court, the reviewing court is not to substitute its own judgment for

the trial court’s judgment.

Walker v. Guiterrez, 111 S.W. 3d 56, 62 (Tex.

2003).

The decision whether recusal is necessary is to be assessed on a

case-­‐by-­‐case, fact intensive basis.

Abdygappariva v. State, 243 S.W. 3d

191, 198 (Tex. App.-­‐San Antonio 2007).

Even under the abuse of

discretion standard the reviewing court does not defer to the trial court

74.

on questions of law.

Perry Homes v. Cull, 258 S.W. 3d 580, 598 (Tex.

2008).

In this regard, the construction of statutes and procedural rules

are questions of law, which are reviewed de novo.

See Galbraith Eng’g

Consultants, Inc. v. Pochucha, 290 S.W. 3d 863, 867 (Tex. 2009); HCBeck,

LTD. V. Rice, 284 S.W. 3d 349, 352 (Tex. 2009); In re Christus Spohn Hosp.

Kieberg, 222 S.W. 3d 434, 437 (Tex. 2007);

State v. Gonzales, 82 S.W. 3d

322, 327 (Tex. 2002);

Brown v. Villegas, 202 S.W.

3d 803, 805 (Tex.

App.—San Antonio 2006, no pet.).

Similarly, a de novo standard of

review is applied to the interpretation of the state constitution.

See

Tesco Am., Inc., v. Strong Indus., Inc., 221 S.W. 3d 550, 554 n. 15 (Tex.

2006); Ross v. Union Carbide Corp., 296 S.W. 3d 206, 211 (Tex. App.-­‐App.—

Houston [14th Dist.] 209, pet. denied).

Under Texas law, courts have delineated that the test for recusal

on the basis of bias or lack of impartiality, is whether a reasonable

member of the public at large, knowing all the facts in the public domain

concerning the judge’s conduct in the case, would have a reasonable

doubt that the judge is actually impartial.

Hansen v J.P. Morgan Chase

p. 75

Bank, N.A., 346 S.W. 3d 769, 776 (Tex. App.-­‐Dallas 2011); Ex Parte Ellis,

275 S.W. 3d 109, 116 (Tex. App.-­‐Austin 2008); Burkett v. State, 196 S.W. 3d

892, 896 (Tex. App.-­‐Texarkana 2006).

Stated another way, if a reasonable person, knowing all of the

circumstances involved, harbors doubt as to the judge’s bias or

impartiality then the burden is met and the judge should be recused.

Mendez v. Quarterman, 625 F. Supp. 2d 415, 424 (S.D. Tex. 2009);

Abdygappariva v. State, 243 S.W. 3d 191, 198 (Tex. App.-­‐San Antonio

2007).

The comments that Judge Phillips’ directed at appellants counsel

and/or appellants identified earlier in this case taken together with

unfair and legally unsupportable rulings of the court, leave the

appellants, with the good faith belief that Judge Phillips was biased

against them.97

PRAYER

The appellants pray that the court reverse the ruling of Judge

Phillips granting appellee’s Motion for Traditional and No Evidence

Summary Judgment and direct the court to grant appellants’ Motion for

p. 76

Partial Summary Judgment and to restore appellants’ other claims to the

trial court docket and to order the trial court to hold a hearing regarding

whether appellants’ are entitled to Attorneys’ fees.

Appellants requests

that this court rule that the court erred in not hearing appellants

discovery motions before ruling on the parties’ Cross Motions for

Summary Judgment.

Further, appellants also requests that this court

rule that Judge Phillips and Judge Wisser erred in not recusing Judge

Phillips.

CONCLUSION

Based on the arguments and law stated herein

appellants

respectfully request that the Third Court of Appeals grant appellants’

prayer for relief and reverse the decision of the trial court and direct the

trial court to enter judgment on appellants’ Motion for Partial Summary

Judgment and restore appellants remaining claims to the trial court

docket for discovery and trial.

Respectfully Submitted

By Appellants

/S/Wesley Spears____________________

Wesley Spears

Their Attorney

77. CERTIFICATION OF COMPLIANCE

This is to certify that the word count on this document is in excess

of 15,000 words.

The total word count is 18,124, and is therefore, not in

compliance with the rules of the Third Court of Appeals.

Therefore,

plaintiff is filing a Motion contemporaneously herewith, requesting

permission to submit this Brief, which exceeds the word count provided

in the rules of the Third Court of Appeals.

/s/s Wesley Spears

Wesley Spears

Attorney for Appellant

78. CERTIFICATION OF SERVICE

This is to certify that a copy of the foregoing Brief in Support of

Appellants Appeal to the Third Court of Appeals was served on counsel

for appellee, David Chamberlain, Chamberlain and McHaney, 301

Congress Avenue, 22nd Floor, Austin, Texas 78701 Tel. 512-­‐474-­‐9124,

Fax. 512C 474C 8582 by hand delivery on this 6th day of March, 2015.

/s/s Wesley S. Spears Wesley S. Spears

Bar No.18898400 401

Congress Avenue,

Suite 1540

Austin, Texas 78701

Tel.: 512C 696C 2222

Fax.: 512C 687C 3499 Attorney for

Appellants

79.

1 See p. 1 Email from Wesley Spears to Diane Bottema

2 See p. 3 Email from Diane Bottema to Wesley Spears regarding the rights of

homeowners to seek a Hearing before the Board regarding alleged violations.

3 See p. 68-­‐69, Transcript of Deposition of Ranier Ficken pages 79-­‐80.

4 See p. 4-­‐6, Articles of Incorporation of the Association dated August 6, 2001.

5 See p. 90-­‐94, Texas Property Code § 209.005.

6 See p. 4-­‐5 Emails between Wesley Spears and Diane Botttema, dated

7 See p. 1 Violation Notice dated October 22, 2013.

8 See p. 49-­‐51, Transcript of Diane Bottema’s Deposition pages 81-­‐83.

9 See p. 117 Transcript of Ranier Ficken Deposition p. 56 L. 13 -­‐ L 18.

10 See p. 118

Transcript of Ranier Ficken Deposition p. 57 L. 11 -­‐ L 18.

11 See p.7-­‐23, Bylaws of the Association paragraph 22 (b) Hearing

p. 18.

12 See Certified letters requesting documents from the Association Court Record p. 788,

789 790 and 791.

13 See p. 72-­‐84, Transcript of the Depositon of Ranier Ficken, Exhibit 2,

documents produced by Mr. Ficken.

14 See Transcript of Hearing of Plaintiffs’ Motion to Compel dated May 28, 2013, p. 8.

15 See Transcript of Hearing of Appellants’ Motion to Compel Deposition Duces Tecum

of Diane Bottema dated May 15, 2013 p. 13-­‐17

16 See Transcript of Hearing of appellants’ Motion to Compel Deposition Duces Tecum

of Diane Bottema dated May 15, 2013 p. 18.

17 See Transcript of Hearing appellants’ Motion to Compel deposition of Diane Bottema

Duces Tecum dated May 15, 2014 p. 14-­‐20.

18 See Transcript of Hearing of appellants’ Motion to Compel dated May 15, 2013 p. 15-­‐

18.

19 See p. 48, Transcript of Deposition of Diane Bottema p. 9.

20 See Court Record p. 820-­‐822, Motion to Compel Deposition of Natalie Boykin.

21 See p. 103, Texas Property Code

§ 209.007.

22 See Transcript of Hearing of appellants’ Motion to Compel Deposition of Diane

Bottema dated May 15, 2014 p. 13-­‐18.

23 See Transcript of Hearing of Appellants’ Motion to Compel dated May 15, 2013 p. 13-­‐

18.

24 See p. 45, Transcript of Diane Bottema’s deposition p. 5.

25 See Court Record p. 961-­‐966, Affidavit of Appellant, Wesley Spears attached to

appellants’ Motion for Continuance to Complete Discovery.

26 See p. 72-­‐84, Budgets and minutes of board meetings produced by Ranier

Ficken which other than an insurance policy were the only documents that appellee

produced to appellants throughout the pendency of this case.

27 See Transcript of Ranier Ficken’s deposition p. 15-­‐18.

28 See Notice to take Deposition of Natalie Boykin, Duces Tecum, Court Record p.

396-­‐402.

80.

29 See p. 57-­‐58, Deposition of Ranier Ficken p. 11 -­‐12.

30 See p. 47, Transcript of Diane Bottema’s deposition p. 7.

631 See p. 24-­‐25, Election Ballots showing appellants’ Wesley Spears was left

off the ballot for Neighborhood Representative also see Court Record p.

Motion for

Continuance to Complete Discovery affidavits of two of appellants’ neighbors

attesting to the fact the Wesley Spears name was left off the ballot for neighborhood

representative.

See p. 42-­‐46, Transcript of Deposition of Ranier Ficken

verifying that the pages downloaded from appellee’s website appeared authentic and

there was no reason that appellant, Wesley Spears’, name was left off the ballot for

neighborhood representatives pages.

32 See Court Record p. 843-­‐849 and 863-­‐873.

Appellee moved to in bad faith to quash

both depositions of Natalie Boykin, who conducted the election, which took place on

June 7, 2014, and William Meyer, Board Member who voted to find appellants in

violation of unspecified deed restriction(s).

The trial court, Phillips, J., refused to hear

appellants’ Motion to Compel the Depositions of Natalie Boykin, the property manager,

who conducted the election that the appellants, allege Ms. Boykin intentionally and

fraudulently left appellant, Wesley Spears’ name off the ballot for neighborhood

representative. Mr. Meyer is also Vice President of the developer Newland Communities

and was the deciding vote to find the appellants’ in violation of unspecified deed

restrictions developer two votes, homeowners’ no votes, big surprise!

See Court

Record p. 961-­‐966, Motion for Continuance to Complete Discovery.

33 See p. 46-­‐47, Transcript of Diane Bottema’s deposition regarding her lack

of access to her own emails and the records of the Association p. 6 and 7 when Ms.

Bottema claims she has no access to her emails or other records because, although she

worked in the office where the records were located her employer Goodwin

Management, the property manager locked out her access to her emails and the

records of the Association.

Again appellee’s were playing hide the ball, a million

dollar budget with no oversight by the homeowners’.

Ms. Bottema contradicted

the sworn testimony of Ranier Ficken when she denied being replaced by Natalie

Boykin because of her poor performance and locked out of her email.

See p.

47.

34 See Court record p. 1059 and Transcript of appellants’ Motion to Recuse Judge

Phillips Exhibit 34, Vol. 3. Emails to Darryl Sanders, Court Operations Officer

requesting that appellants’ Motion to Compel be heard before the parties Cross

Motions for Summary Judgment.

35 See Transcript of Appellants’ Motion to Recuse Judge Phillips November 7, 2014,

Emails requesting appellants’ three Motions to Compel Discovery be heard prior to the

parties cross Motions for Summary Judgment p. 36-­‐39.

36 See Transcript of the appellant’s Motion to Recuse Judge Phillips November 7,

2014, testimony of Wesley Spears p. 41-­‐54.

37 See Transcript Motion to Recuse Judge Phillips November 7, 2014, testimony of

Wesley Spears p. 41-­‐54 and Darryl Sanders p. 13-­‐22.

Mr. Sanders’ admits that he was

81.

the only Court Operations Officer involved in this matter up to the hearing of the

parties Cross Motion for Summary Judgment and that he never gave counsel for the

appellants’ any instructions informing that it was in appropriate to ask for a setting by

email.

He admits in hindsight he should have given those instructions and it was his

job to give those instructions and it was his job to respond to counsel for the

appellants’ email.

Appellants’ should not lose their case because of an inadvertent

mistake by the Court Operations Officer or appellants’ counsel, especially after it was

brought to the court’s attention.

Judge Phillips abused his discretion when he refused

to correct this wrong at the Hearing of Appellants’ Motion for New Trial. Judge Phillips

again denied appellants’ request that that the court hear their three Discovery Motions

and Motion for Continuance to Complete Discovery, in their Motion for New Trial,

Court Record p. 1105-­‐1119.

See p. 116, email from Darryl Sanders, Court

Operations Officer, to counsel for the appellants specifically asking that counsel for the

appellants should contact his office only by email to avoid any ex parte

communications, with copy to opposing counsel.

Counsel for the appellants’ was

following the directions of the Court Operations Officer.

38 See Transcript of Motion to Recuse Judge Phillips November 7, 2014, p. 20.

39 See Transcript of Motion to Recuse Judge Phillips, November 7, 2014, p. 19-­‐20.

40 See Transcript of Motion to Recuse Judge Phillips November 7, 2014, p. 22 L1-­‐L12.

41 See p. 116 Email from Darryl Sanders to counsel for appellants asking

them to communicate with him by email to avoid ex parte communications.

42 See Transcript of Motion to Recuse Judge Phillips November 7, 2014 p. 21-­‐22.

43 See Transcript of Motion to Recuse Judge Phillips November 7, 2014, p. 21, L1-­‐25.

44 See Transcript of Motion to Recuse Judge Phillips Hearing November 7, 2014,

testimony of Cathy Mata P 11 L 1 through p 12 L 7.

45 See Transcript of Motion to Recuse Judge Phillips p. 12 L. 8 to L22.

46 See Transcript of Motion to Recuse Judge Phillips p. 11 L20 to page 12 L4.

47 See p. 40, Judge Wisser Order denying Appellants’ Motion to Recuse

Judge Phillips.

48 See p. 30-­‐31, Attorney Alex Valdes’ November 26, 2013, Letter announcing

the decision of the Board finding the appellants’ in violation based on it’s “business

judgment”.

49 See p.3 Bottema’s email representing that appellants’ were not entitled to

a Hearing.

50 See p. 79-­‐80, Transcript of Deposition for Ranier Ficken Appendix.

51 See Transcript of July 1, 2014, Hearing of Appellants’ Motion to Compel Deposition of

Diane Bottema p. 23-­‐26.

52 See Transcript of the Hearing Appellants’ Motion to Recuse Judge Phillips November

7, testimony of Cathy Mata p. 66 L 16 to L21 and P. 67 L 17 to L22.

53 See Transcript of Hearing Appellants Motion to Compel, July 1, 2014, p. 24 L 4

through p. 26 L. 10.

54 See Court Record p. 1176-­‐1186 bias and/or sarcastic comments made by Judge

Phillips to counsel for appellant.

82.

55 See p. 1 Email to Diane Bottema from Wesley Spears responding to the

first violation letter.

56 See p. 2, Email from Diane Bottema to requesting the fence to be moved in

front of the pool pump.

57 See p. 68-­‐69, Transcript of Deposition of Ranier Ficken 79-­‐80.

58 See p. 1, Violation Notice dated October 22, 2013.

59 See p. 1, Violation Notice dated October 22, 2013.

60 See p. 30-­‐31, Valdes letter dated November 26, 2013

61 See p. 30-­‐31, Valdes letter dated November 26, 2013.

62 See p. 100, Texas Property Code Section 209.006 and the Bylaws of the

Association.

63 See p. 7-­‐23, Bylaws of the Association.

The only notes of the 11-­‐13-­‐13,

Hearing were contained in handwritten minutes of the 11-­‐13-­‐2013, by Diane

Bottema.

Ms. Bottema’s notes do not comply with Tex. Prop. Code § 209.006

because they do not indicate the sanction imposed.

64 See p. 7-­‐23, Bylaws of the Association

65 See Violation Notice, dated October 22, 2013, p. 1.

66 See Court Record p. 788, 789, 790, 791 Appellants’ requests for documents.

67 See p. 32-­‐33, letter from Alex Valdes, Esq., January 13, 2014

68 See p. 90-­‐93 Texas Property Code § 209.005.

69 See p. 32-­‐33 letter from Alex Valdes, Esq., January 13, 2014.

70 See by Judge Phillips indicating the rules change once suit if filed

transcript July 1, 2014, Motion to Compel Court Record p. 1176 to 1186.

71 See Transcript of Motion to Compel dated May 28, 2014 p. Court Record 1176-­‐

1186.

72 See Court Record p. 792-­‐793, letter from Alex Valdes, Esq., dated January 13, 2014.

73 See Court Record p. 788, 789, 790, 791 Appellants’ requests for documents

and Appellee’s responses to Appellants’ requests for records 792-­‐793, 794, 793-­‐ 796, 797.

74 See Court Record appellants’, December 9, 2013, letter to Diane Bottema p. 788.

75 See Court Record letter from Alex Valdes Esq., to Wesley Spears, dated January 13,

2014 p. 792-­‐793.

76 See p. 34 appellants’ letter to David Campbell dated May 23, 2014

77 See Court Record p. 788-­‐791, letter from David Campbell to Wesley Spears dated

June 10, 2014.

78 See Court Record 788-­‐791, Appellants’ letter to Diane Bottema dated June 12,

2014.

79 See Court Record p. 788-­‐791, letter from David Campbell to the appellants dated

June 18, 2014.

See Court Record 788-­‐791 and Court Record p. 407, Plaintiff’s Motion

for Partial Summary Judgment, Exhibit 15, letter to Diane Bottema requesting copies

of all the books and records of the Association, dated June 18, 2014.

83.

80 See Court Record 788-­‐791, Letter from David Campbell to appellants dated June

20, 2014.

81 See Court Record p. 788, 789, 790, 791 Appellants’ requests for documents.

82 See

p. 72-­‐84, Transcript of the Depositon of Ranier Ficken, Exhibit 2,

documents produced by Mr. Ficken at his deposition.

83 See Court record appellee’s responses to appellants’ requests for records 792-­‐793,

794, 793-­‐796, 797.

84 See Court Record p. 804-­‐816 appellants’ Fourth Amended Complaint 804-­‐816.

See

also Court Record appellants’ Fifth Amended Complaint p 922-­‐939.

85 See p. 119, U.S. Const. Amendment 14.

86 See p. 120, Texas Const. Art. 1 § 19.

87 See Court Record p 965-­‐966, Affidavit of Wesley Spears attached to appellants’

Motion for Continuance.

88 See p. 37, Court’s Order Granting Appellee’s Motion for Traditional and

No-­‐Evidence Summary Judgment.

89 See Court Record Affidavit of Wesley Spears attached as an exhibit to Appellant’s

Motion for Continuance 961-­‐968.

90 See p. 113-­‐114,Texas Deceptive Trade Practices Act §§ 17.50 and 1746.

91 See p. 63-­‐67, Transcript of Deposition of Ranier Ficken pages 42-­‐46.

92 See Court Record p. 966-­‐968, Affidavits of Jonathan Concepcion and Vahness

Swilley Concepcion attached to Appellants’ Motion for Continuance attesting to the

fact that appellant, Wesley Spears’ name was left off the ballot for neighborhood

representative in support of appellants DTPA claims.

93 See Court Record Motion for Continuance election ballots with appellant, Wesley

Spears name omitted Court Record 961-­‐968 not legible.

See also, p.

legible copies of election ballots with appellant, Wesley Spears’ name omitted

Exhibit to Ranier Ficken’s deposition.

94 See Court Record p. 863-­‐873, Appellee’s Motion to Quash the deposition of Diane

Boykin.

95 See p. 121,Texas Rules of Civ. Proc., Rule 18b(b)(1).

96 See p. 122, Texas Rules of Civ. Proc., Rule 18a (j) (2)

97 See Statements by Judge Phillips demonstrating his bias:

See Transcript of July 1,

appellants’ Motion to Compel Deposition of Diane Bottema p. 23-­‐26, Judge Phillips

made the following comments: “The Court: You got good common sense I hope.

Mr.

Spears: I think so.

The court: That’s what were counting on… Counsel, when they first

came here and filed their motion for summary judgment, they felt there wasn’t any

discovery that was necessary before the summary judgment motions were heard.

I

know agree with them…. The court: I was going to ask if you filed a request for

production.

Mr. Spears: Yes. And I requested all the Books and Records of the

Association, which is everything.

The Court: You’re not going to get that.

Mr. Spears:

Well, I will get whatever I’m going to get.

The Court:

Well, no.

They’re going to object

that it’s overly broad and burdensome and I’m going to sustain it… The Court:

Shakespeare wrote a play about this case didn’t he? I can’t remember whether it was a

84.

“Comedy of Errors” or “Much Ado about Nothing.

Mr. Spears: Well, it is much ado

about nothing.

I agree with you there.”

85.