                                                                          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.
