Wesley Spears and Renee Jacobs v. Falcon Pointe Community Homeowner's Association ( 2015 )

ACCEPTED
03-14-00650-CV
5611340
THIRD COURT OF APPEALS
AUSTIN, TEXAS
6/9/2015 7:36:27 PM
JEFFREY D. KYLE
CLERK
WESLEY SPEARS AND RENEE JACOBS,
APPELLANTS V. FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS
FALCON POINTE COMMUNITY HOMEOWNERS’ ASSOCIATION
6/9/2015 7:36:27 PM
JEFFREY D. KYLE
Clerk
NO. 03-14-00650
JUNE 9, 2015
APPELLANTS’ REPLY BRIEF
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.
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., Suite1540, 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. 512‐474‐8585.
TABLE OF CONTENTS
Identity of the parties and Counsel …………………………………..
……………....i
Table of
Contents………………………………………………………………………
.……ii
Issues Presented For Review…………………………………….
…………………….iii
Argument…………………………………………………………………….
…………………1
1. Plaintiffs’ have not waived their first, third and fourth
appellate issues through inadequate
briefing……………………………………………..….1-6
2. Appellants dispute Appellee’s claims that Appellants
made misrepresentations of facts in Appellants’ Statement of
Facts………...7-11
3. The trial court abused its discretion by denying
Appellants’ Motion for
Continuance…………………………………………………………………
………..11-12
4. Appellants have produced clear and concise arguments
regarding Appellants two Deceptive Trade Practices Act
Claims….……………....12-13
5. Appellants’ have established that Judge Wisser and Judge
Phillips erred in failing to recuse Judge
Phillips…………………………….…..…….13-15
2
ii
ISSUES PRESENTED FOR REVIEW
1. Plaintiffs’ have not waived their first, third and
fourth appellate issues through inadequate briefing.
2. Appellants dispute Appellee’s claims that
Appellants made misrepresentations of facts in
Appellants’ Statement of Facts.
3. The trial court abused its discretion by denying
Appellants’ Motion for Continuance.
4. Appellants have produced clear and concise
arguments regarding Appellants two Deceptive Trade
Practices Act Claims.
5. Appellants’ have established that Judge Wisser
and Judge Phillips erred in failing to recuse Judge
Phillips
3
iii
ARGUMENT
The Appellants submit this reply Brief in order to respond
point
by point to certain matters raised in Appellee’s Brief.
1. Plaintiffs’ have not waived their first, third and
fourth appellate issues through inadequate briefing.
Appellant’s Brief clearly and concisely states why
Appellants’ believe Judge Wisser abused his discretion by
denying Appellant’s Motion to Recuse Judge Phillips.
Appellants cited the court to extensive testimony by Darryl
Sanders, Appellant, Wesley Spears and statements made by
the Judge on the record that clearly showed that Judge Phillips
should have been recused.1
4
The Judge according to Court Operations Officer in every
case except this case heard all Discovery Motions before
hearing Motions for Summary Judgment. Judge Phillips
violated the court’s own policy in this case. 2 The testimony of
Appellant, Wesley Spears outlined in Appellants’ Original Brief
demonstrated the hostility Judge Phillips showed toward
counsel for Appellants, refusing to hear his arguments almost
refusing to let him speak all.3
The Appellee states it is offended by the suggestion that
the
1.
Judge would be biased against the Appellants. Appellants are
even more offended by the bias that Judge Phillips
demonstrated against them. Appellee should not be offended
by Appellants’ good faith belief that they were the victim of
influence peddling and bias. Why is Appellee afraid to face this
issue head on, preferring to make light of the suggestion
influence peddling, a typical defense mechanism often used in
the past to defend against claims of bias.
5
Is it so hard to believe a Texas County Court Judge would
be susceptible to influence peddling in favor of the largest
private developer in the United States against an African-
American family. Has it never happened in the past in similar
circumstances, of course it has, countless times. The failure
to accept the possibility of influence peddling would be naïve.
This Court should take Judicial Notice of the fact that
during the pendency of this matter, a County Judge resigned
and went to jail for withholding evidence. Another Judge was
forced to step down because he allegedly illegally sold guns
that ended up across the border in Mexico. Another Judge
arrested for DUI, others were arrested for bribery. Is so hard
to believe that an elected County Judge would be susceptible
to influence peddling.
2.
In this case, as outlined in Appellants’ Brief Judge Phillips
made a number of statements regarding rulings he would
make even before Motions were filed by Appellee which was
not only inappropriate but demonstrated that the Judge’s was
biased against the Appellants.4
6
The Appellants asserted their rights to request all of the
books and records of the Homeowners’ Association. Since
Appellee failed to file a copy policy, as required by statute,
they were statutorily obligated to turn over copies of all the
books and records of the Association without cost to
Appellants.5
Appellants simply out maneuvered the Appellee and in
order to avoid producing thousands of pages of documents, it
had to resort to appealing to Judge Phillips for a biased and/or
discriminatory rulings that defy logic and are unjustified under
the relevant case law. Of course Appellants’ have stubbornly
maintained their good faith belief that Judge Phillips was
impermissibly biased against them, he would not listen to a
word counsel for the Appellant said.
This Court needs to look no further than testimony of the
Court Operations Officer who admitted he screwed up by
failing to schedule, Appellants’ Discovery Motions and/or not
responding to Appellants two
written requests that he do so.6 Whether the Court Operations
Officers
7
3.
actions were simply inadvertent, negligent or intentional the
Appellants
should not be forced to pay an unjust Judgment because of a
mistake or intentional act of the Court Operations Officer
and/or the Judge. Especially in light of the fact that Mr.
Sanders instructed the Appellants that they could not talk to
him by telephone and could only communicate in writing.
Even that action seems unusual to the Appellants and leads
them to believe they were being treated differently from every
other party.
In this case, on the day in question, Judge Phillips
announced that he was going on the record. The first matter
lasted about one minute and then he called the subject case
without any indication he was now going off the record. The
court reporter never moved from her original position. There
was no reason for counsel for the Appellant to ask the court to
go on the record since it never went off the record.
When people engage in wrong doing they most often do
it under the cover of darkness that is the reason there is no
8
record. County Court is a court of record. Why is there no
record? With no record, Appellee is free to make the
argument that their was no record of the rulings on the
parties’ Summary Judge Motions, therefore, the arguments of
Appellants’ are outside of the record. At the very least this
matter should
4.
be remanded for a new and fair trial, on the record.
One merely needs to look Judge Phillips’ clearly
erroneous rulings
denying Appellants’ Motion for Summary Judgment and not
that was based on the defective nature of the Violation Notice
as a matter of law to know he exhibited bias. The Notice was
so defective that Appellee does not even address the issue in
its brief because it is unable argue that the Notice was not
defective. Appellee chooses to ignore the defects in the
Violation Notice. The Hearing, which Appellee relies on to
justify its actions, was based on that defective Violation Notice
and, therefore, the Hearing was also defective, there is no way
9
around that argument.
Appellee also did not address the issue that they violated
Texas Property Code § 209.005, because as outlined in
Appellants’ Brief, it refused, to produce any relevant and
material documents that Appellants properly requested,
except the few documents identified in Appellants’ Original
Brief and contained in the Appendix to Appellants’ Brief.
Appellants arguments concerning its obligation to
produce documents are uncontested by the Appellee because
they could not
5.
contest the arguments at trial or here on Appeal. How can
Appellants be found to have violated rules without the
Appellee ever identifying the deed restriction(s) that
Appellants allegedly violated. It is like charging a person with
a crime and not telling them what crime they committed.
The law is clear, the Violation Notice must identify the
10
specific deed restriction(s) allegedly violated, in this case it
did not and the President of the Association testified that it did
not, which should have ended the case.7 Rather than issuing a
new Violation Notice, Appellee chose to defend the case by
refusing to cooperate with discovery. The Appellee’s refusal to
cooperate with discovery was clearly documented in the
8
Transcript of the May 2014, Hearing in front of Shepperd, J.
Phillips, J. in the first Hearing before him effectively
reversed Judge Shepperd’s prior ruling as outlined in
Appellants’ Original Brief refusing to order the release of
documents.9 The Appellee from the beginning of this case has
sought to avoid the issue of Appellants’ right to all of the
books and records of the Homeowners’ Association.
Appellee’s Brief does the same thing attempting to avoid the
two issues that have been clearly, precisely and concisely
stated by the Appellant from the beginning of the case to the
present.
6.
2. Appellants dispute Appellee’s claims that
Appellants made misrepresentation of facts in
Appellants’ Statement of Facts.
11
A. The Appellee claims that the court did not show
bias. Appellants’ claim that the Judge was biased against
them is not a misrepresentation of fact it is based on the facts.
Appellants believe that they have adequately demonstrated
that Judge Phillips was biased against them, in the facts and
arguments contained in this Appellants’ Original Brief.
B. Appellants fence was four feet high when compared
to the elevation of Appellants pool because it sits in a
drainage ditch. Appellee produced no evidence disputing this
fact.
C. Diane Bottema, Manager of the Homeowners’
Association sent an email attached to Appellants’ Original
Brief saying that in matters of clear violations the President
could speak for the Board.10 This was in response to
Appellants’ email to Ms. Bottema indicating that they intended
to request a Hearing. Ranier Ficken the President of the
Homeowners’ Association testified that he did not have the
authority to speak on behalf of the board and that Ms.
Bottema’s statement in the email was not true. 11
D. The Privacy Screen is completely free standing. The
Appellee is disputing the truth without any evidence.
E. Appellants most certainly made six formal requests
for discovery. The record will reflect four Notices to Take
Deposition, three of which were Notices to take Deposition
Duces Tecum. As well as two requests for the Production of
Documents. Evidently the Appellee does not count Notices to
take Depositions as a formal discovery requests.
F. Appellants produced the ballots from Appellee’s
website which are in the Appendix to Appellants’ Original
Brief.12 Appellee produced no evidence that contradict the
Ballots produced by the Appellants. Ranier Ficken, President
of the Association testified at his deposition that the Ballots
came from the Falcon Pointe website and that there was no
reason
12
7.
that Appellant, Wesley Spears name should have been left off
the ballot. In additions Appellants produced the sworn
affidavits of two neighbors attesting to the fact that Appellant,
Wesley Spears’ name was left off the Ballot for neighborhood
representative. Appellee has produced no contradictory
evidence.13
G. Once again in an effort to avoid discovery Appellee
suggests that the only two members of the Board of Directors
who voted at the Hearing that Appellee relies on to justify its
actions are not material witnesses in this case, which is utterly
ridiculous. Likewise, Appellee’s argument that the Property
Manager, who Appellants communicated with about the
Privacy Screen and whose name is on the Violation Notice is
not a material witness is likewise ridiculous.
Finally, the fourth person whose deposition was noticed
by Appellants, Natalie Boykin, was the new Property Manager
who conducted the election in which the Appellant, Wesley
Spears’ name was fraudulently left off the ballot and she is
therefore, material to Appellants’ Deceptive Trade Practices
Act claim that he was disenfranchised by Appellee’s actions.
She could testify, if and why Appellants’ name was left of the
Ballot.
H. Appellants certainly did challenge all of the Court’s
the rulings, including the Courts’ Ruling on Appellants’
Summary Judgment evidence. The Appendix to Appellants’
Brief includes the court’s ruling as an Order appealed from. 14
Further, Appellants’ Briefs in response Appellee’s Motion for
Summary Judgment, extensively argued against the court’s
findings.15
Appellants’ argued that because the Violation Notice is
defective as a matter of law, which is a preliminary issue that
must be determined before the court even reaches the claim
that the Appellee held a Hearing that properly found
Appellants in violation of a deed restriction of the Association.
13
That issue should have never been reached since the Violation
Notice is clearly defective. The President of the Association
testified that the Notice did not provide the specific deed
restriction that was violated and, therefore, was fatally
defective. The same holds true of Appellants right to the
records of the Association that Appellee refused to produce to
Appellants.
8.
I. Appellee filed a an objection Appellants’ Fifth Amended
Complaint but never sought or obtained a ruling seemingly
withdrawing its objection based on Appellants’ representation
that the delay in filing was caused by the myfilerunner
internet filing service and therefore, it is the operative Petition
that this Honorable Court should review in deciding this case. 16
Appellant’s Fifth Amended Complaint provides in
pertinent part
states as follows:
25. “Plaintiffs seek a declaration that all Notices of
Violation issued by defendant in this case are defective
because they fail to provide the specific rule that the
Association is claiming that the Plaintiffs allegedly violated.
Plaintiffs also seek a declaration that the defendant’s
Notices of the Violation of Rules of the Association in this case
were defective because they failed to provide a valid cure
date as provided by law.
26. Plaintiffs seek declaration that fines may not be
imposed in this case because they were based on a defective
Notice and Hearing in this matter.
27. Plaintiffs seek a declaration that the Association
may not deny Plaintiffs access to the records of the
Association and the Association must keep the records in a
manner which makes them reasonably available to the
Plaintiffs’.
28. Plaintiffs also seek a declaration that the Association
14
must not use false and/or misleading statements of the
Property Manager to prevent plaintiffs from seeking a Hearing
prior to the Board taking enforcement action against plaintiffs
dedicatory violations as defendant did in this case.
29. Plaintiffs also seek a declaration that the
Homeowners’ Association must conduct a fair and open and
verifiable elections for neighborhood representative and
Directors and that the Plaintiff, Wesley
Spears, name was intentionally omitted from the Election
Ballot.
9.
30. A declaration that the failure to cite a specific rule
before finding plaintiffs in violation of the rules of the
Association and/or denial of equal protection of the rules of
the Association.
31. Plaintiffs seek a declaration that the President of the
Association may not act in this matter for the Board in matters
requiring Board approval as falsely and deceptively
represented by the Property
Manager, Diane Bottema to the Plaintiffs.
32. Plaintiffs seeks a declaration that it is a deceptive
trade practice for the Property Manager to mislead plaintiffs
into believing they were not entitled to a Hearing upon the
receipt of the First Violation in this case.
33. Finally, the plaintiffs seek a declaration that the
Privacy Screen in question was built in substantial compliance
with the example and verbal instructions which were provided
to the plaintiffs by the Property Manager , Diane Bottema and
Ranier Ficken, President of the Homeowners’ Association and
the Developer, Newland Properties’, Property Manager and it
is not in violation of the Rules of the Association and/or that
the actions of the Board were Arbitrary and Capricious
because it was not based on a violation of the Rules of the
15
17
Association.”
Again it is the Appellee not the Appellant who mistakes
the state of the pleadings and therefore, its argument that
Appellants’ Complaint seeks an advisory opinion is without
merit because it does not.
Appellee never moved to strike the Appellants’ Fifth Amended
Complaint nor did raise any issue regarding Appellants’
Complaint in the Orders they requested the Judge to make in
regards to Appellants’ Summary Judgment evidence. The
Court made no rulings regarding the Appellants’ Fifth
Amended Petition and therefore, it is the operative pleading.
Appellee
10.
will undoubtedly argue that Appellants’ Fifth Amended
Complaint was filed six hours late. They did seek any Orders
regarding the Appellants Fifth Amended Petition seemly
agreeing that they could not have been prejudiced by the six-
hour delay caused by problems with the myfilerunner, internet
filing system.
3. The trial court abused its discretion by refusing to
Hear Appellants’ Three Motions to Compel and Motion
16
for Continuance.
Appellants’ filed the subject Motion for Continuance as a
last resort when the Court Operations Officer admittedly failed
to respond to emails from Appellants requesting that
Appellants three Motions to Compel be heard before the
Summary Judgment Hearing. Appellants, September 8 and
9, 2014, emails clearly state that they wanted their Motions to
Compel heard before parties’ Summary Judgment Motions. It
would make no sense and would be futile to hear discovery
Motions after the Judge grants Summary Judgment.
The Appellee again misrepresents the statements of
counsel of Appellants’ stating that he would leave it to the
courts discretion as the appropriate date for the Hearing of the
parties Motion to Compel. Counsel
11.
was merely relating that he would make himself available
anytime the
17
Judge requested, but as stated in the emails to the Court
Operations Officer and the Motion for Continuance, Appellants
wanted their Motions to Compel be heard before the parties
Motion for Summary Judgment anything else would not make
sense and would be futile after
the court granted Appellee’s Motion for Summary Judgment.
4. Appellants have produced clear and concise
arguments regarding their two Deceptive Trade
Practices Act Claims.
Appellants’ Original Brief clearly and concisely argues
Appellants’ Deceptive Trade Practices Act claims. First,
Appellants’ clearly demonstrated that they were lied to by the
Property Manager, Diane Bottema in an email in response to
Appellants’ email indicating they were going to request a
Hearing after conducting an investigation.18 The Property
Manager responded in in her email that in matters of clear
violations the President of the Board of the Association could
act for the Board.19 Appellants pointed to the testimony of the
President of the Association, Ranier Ficken who testified that
the statement of the Property Manager, Diane Bottema, was
untrue.20
18
12.
Second, as outlined in Appellant’s Original Brief,
Appellants, alleged that Appellant, Wesley S. Spears properly
applied to have his named put
on the ballot for neighborhood representative. Appellant
produced a copy
of the Ballot downloaded from the Appellee’s website.
Ranier Ficken the president of the Association testified
that indeed the Ballots came from the Association website. In
addition, Appellants
produced Affidavits of two neighbors attesting to the fact that
Appellant, Wesley Spears’ name was left of the Ballot for
neighborhood
representative in June of 2014, disenfranchising him. Once
again the Appellee is trying to subvert the truth and distort
the facts without producing any evidence to contradict the
representations of the Appellants.
5. Appellants’ have established that Judge Wisser
and Judge Phillips erred in failing to recuse Judge
19
Phillips
Appellants have maintained from the time of Hearing of
the parties’ Motion for Summary Judgment to the present that
Judge Phillips rulings, demeanor, including the violation of the
court’s policy that all pending Discovery Motions be heard
before hearing a Summary Judgment Motion, were biased.
The failure of the court to adhere its policy in only this
13.
case would make any reasonable person question Judge
Phillips’ impartiality based on the Court’s Operations Officer’s
own sworn testimony.
Although counsel for the Appellant suspected the Judge
was biased at the first Hearing that Judge Phillips presided
over because he overruled Judge Shepperd’s previous order,
he had not reached a good faith belief that the Judge’s was
biased against Appellants until the Summary Judgment
Hearing. Appellants’ counsel did not form a good faith belief
that the Judge was biased until he was denied a reasonable
opportunity to be heard regarding Appellants’ Motions to
20
Compel, Motion for Continuance, and, the parties’ Motions for
Summary Judgment.
Counsel for the Appellant filed a Motion to recuse Judge
Phillips within two hours of the conclusion of the Hearing of
the Parties’ Summary Judgment Motion. Appellants’ filed
their Motion to Recuse Judge Phillips at the earliest possible
moment after they formed a good faith belief that he was
biased against them.
Counsel for the Appellant had been before Judge Phillips
on only one prior occasion in this case and in his life, before
the Hearing of the parties’ Motion for Summary Judgment.
The first was at the July 1, 2014,
14.
hearing of Appellants’ Motion to Compel Documents.
In fact none of the authorities cited by the Appellee
contradict
anything the Appellants argued in their Original Brief
regarding the bias of Judge Phillips. It is up to this Honorable
Court to decide whether the facts demonstrate that a
21
reasonable person knowing all the facts would
question whether Judge Phillips was biased and the other
issues in this case.
Appellants’ Wesley Spears
and Renee Jacobs
/s/ Wesley S. Spears
By:_______________________________
Wesley S. Spears
401 Congress Avenue, Suite
1540
Austin, Texas 78701
Tel.: 512-696-2222
Fax.: 512-687-3499
Attorney For Appellants
15.
CERTIFICATE OF COMPLIANCE
In compliance with the Texas Rule of Appellate Procedure 9.4(i)
(3), I certify that based on the word count of the computer
program used to prepare the foregoing document, the
relevant sections of this document contain 3839 words.
22
/s/Wesley S. Spears
_________________________
Wesley S. Spears
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the above and
foregoing document has been served by via electronic service
on the following counsel for the Appellee on this 9 th day of
June, 2015:
David Chamberlain
David Campbell
301 Congress Avenue, 22nd floor
Austin, Texas 78701
Attorney for Defendant/Appellee
/s/Wesley S. Spears
_________________________
Wesley S. Spears
16.
FOOTNOTES
23
1 See Appellants’ Original Brief p. 20-27.
2 See Appellants’ Original Brief p. 20-27.
3 See Appellants’ Original Brief p. 20-27.
4 See Appellants’ Original Brief p. 31-32.
5 See Appellants’ Original Brief p. 14-15.
6 See Appellants’ Original Brief p. 20-25.
7 See Appellants’ Original Brief p. 48-56.
8 See Appellants’ Original Brief p. 12-14.
9 See Appellants’ Original Brief p. 15-16.
10 See Appellants’ Original Brief Appendix p. 3
11 See Appellants’ Original Brief p. 6
12 See Appellants’ Original Brief p. 24-25.
13 See Appellants’ Original Brief Appendix p. 28-29.
14 See Appellants’ Original Brief Appendix p. 38-39
15 See Court Record Plaintiffs’ Supplemental Brief in Opposition to Defendants’
Motion for Traditional and No-Evidence Summary Judgment p. 992-1021.
16 See Appellants’ Fifth Amended Complaint, Court Record p. 929-931 .
17 See Appellants’ Fifth Amended Complaint Court Record p. 929-931.
18 See Appellants’ Fifth Amended Complaint Court Record p. 929-931
19 See Appellants Original Brief p. 2.
20 See Appellants’ Original Brief p. 3.
17.