                                                                                     ACCEPTED
                                                                                 03-14-00208-CV
                                                                                         5780768
                                                                      THIRD COURT OF APPEALS
                                                                                 AUSTIN, TEXAS
                                                                           6/23/2015 10:01:16 AM
                                                                               JEFFREY D. KYLE
                                                                                          CLERK

                         No. 03-14-00208-CV

     IN THE COURT OF APPEALS FOR THE THIRD DISTRICTFILED IN
                                            3rd COURT OF APPEALS
                   OF TEXAS AT AUSTIN            AUSTIN, TEXAS
                                                       6/23/2015 10:01:16 AM
                                                          JEFFREY D. KYLE
                                                                Clerk
 CANYON LAKE ISLAND PROPERTY OWNERS ASSOCIATION,
CYNTHIA M. GRIFFIN, RICHARD A. CONLEY AND BILL LESTER,

                                        Appellants-Plaintiffs

                                  v.

 STERLING/SUGGS LIMITED PARTNERSHIP, NEAL E. SUGGS
               AND NADINE R. SUGGS,

                                       Appellees-Defendants.


  Interlocutory Appeal from Cause No. C2012-1457B, the 207th Judicial
                  District Court, Comal County, Texas


            APPELLEES' MOTION FOR REHEARING


                                MARTIN & DROUGHT, P.C.
                                GERALD T. DROUGHT
                                State Bar No. 06134800
                                gdrought@mdtlaw.com
                                MATHIS B. BISHOP
                                State Bar No. 24045500
                                mbishop@mdtlaw.com
                                Bank of America Plaza, 25th Floor
                                300 Convent Street
                                San Antonio, TX 78205
                                Telephone: (210) 227-7591
                                Facsimile: (210) 227-7924
                                ATTORNEYS FOR APPELLEES
                                         TABLE OF CONTENTS

TABLE OF CONTENTS ........................................................................................... i

TABLE OF AUTHORITIES .................................................................................... ii

I.     INTRODUCTION ............................................................................................. 1

II.    THE TRIAL COURT ACTED WITHIN ITS DISCRETION
       IN CERTIFYING THE CLASS ........................................................................ 2

III. THE NUMEROSITY REQUIREMENT IS SATISFIED ................................. 5

IV. THE NAMED CLASS REPRESENTATIVES ARE ADEQUATE ................. 6

V.     CONCLUSION .................................................................................................. 8

CERTIFICATE OF SERVICE ............................................................................... 10

APPENDIX ............................................................................................................. 11
                                    TABLE OF AUTHORITIES


CASES                                                                                                    PAGE

Bowden v. Phillips Petroleum Co.,
247 S.W.3d 690 (Tex. 2008) ...................................................................................... 3

Riemer v. State,
392 S.W.3d 635 (Tex. 2012) ...................................................................................... 7

Southwestern Ref Co. v. Bernal,
22 S.W.3d 425 (Tex. 2000) ....................................................................................... .4

Sullivan v. Barnett,
471 S.W.2d 39 (Tex. 1971) ........................................................................................ 3

Thill ens, Inc. v. Community Currency Exch. Ass 'n ofIllinois, Inc.,
97 F.R.D. 668 (N.D. Ill. 1983) ................................................................................... 7

Wright v. Vernon Compress Co.,
296 S.W.2d 517 (Tex. 1956) ...................................................................................... 3

RULES AND STATUTES

Federal Practice & Procedure§ 1762 ...................................................................... 6

Federal Practice & Procedure§ 1762, 7.2.A.2. Commonality ................................ 6

Federal Practice & Procedure§ 1762, 7.2.A.3. Typicality ...................................... 6

Federal Practice & Procedure 1768 ......................................................................... 8




                                                         11
                 APPELLEES' MOTION FOR REHEARING

      Sterling/Suggs Limited Partnership, Neal E. Suggs and Nadine R. Suggs,

Appellees, file the following Motion for Rehearing, and in support of such motion,

would show as follows:

                                         I.
                                INTRODUCTION

      The background facts are well known to the Court and need not be recited

again at length. In a nutshell, this is an easement dispute brought by Canyon Lake

Island Property Owners Association (hereinafter the "Association"), a voluntary

association of owners of lots in the Canyon Lake Island Subdivision. The

Association filed suit alleging trespass and interference with its members' property

rights related to a claimed prescriptive easement, which the Appellees deny.

      The Appellees filed a motion to certify the case as a class action, and a

joinder seeking to add Cynthia M. Griffin, Richard A. Conley and Bill Lester

(hereinafter referred to as "Representative Association Members") as parties and to

designate them as class representatives. The trial court granted the motion to

certify. This interlocutory appeal was then commenced by the Appellants.

      On June 5, 2015 this Court reversed and remanded the trial court's class

certification. Appellees believe there are issues that require further review by the

Court in the interest of justice. This Motion requests that the Court reconsider its

ruling and permit a rehearing on these issues.


                                          1
                                   II.
                    THE TRIAL COURT ACTED WITHIN ITS
                   DISCRETION IN CERTIFYING THE CLASS

       It is hard to imagine a scenario more appropriate for a class action. It is

undisputed that there are approximately 163 lots in the Canyon Lake Island

subdivision, approximately 300 current individual property owners, and that

joining each of the owners as parties to this suit would cost approximately $50,000

in filing fees. The Court could take judicial notice that the Comal County

Appraisal District lists the property on which the prescriptive easement is claimed

with a value of $134,300, making the $50,000 in filing fees very relevant. It is

further undisputed that membership in the Association is voluntary, and that each

non-member owner (current or future) could assert claims similar to the

Association's claims in the case at bar, and these claims would not be barred by res

judicata or collateral estoppel. It is undisputed that subsequent similar suits could

result in inconsistent rulings and judgments. Nevertheless, this Court concluded

the trial court failed to conduct a "rigorous analysis" in certifYing the class. The

rigorous analysis should take into consideration the alternatives to a class action.

No suitable alternative to a class action is mentioned by this Appellate Court.

There is none. 1


1
  While not a gronnd for appeal, but rather for the Court's information, the Appellees continue to
assert the Association has no standing to bring this suit because it is a voluntary association with
far less than I 00% of the property owners being members, and it is seeking to assert rights on


                                                 2
       This Court recognizes that these basic facts are uncontroverted, and does not

cast doubt on the veracity of the Appellees' undisputed assertions. Nevertheless,

the Court would require more evidence, the nature of which is left a mystery, and a

more rigorous analysis of undisputed issues. This is an invasion of the trial court's

discretion and an unprecedented requirement of a more rigorous analysis of

undisputed issues.

       In a jury trial context, it has long been the law that undisputed issues are not

submitted to the fact finder. The reasoning behind this principle is obvious. When

a matter is undisputed, there is no need to present evidence to prove what is not in

controversy. See Sullivan v. Barnett, 471 S.W.2d 39, 44 (Tex. 1971); Wright v.

Vernon Compress Co., 296 S.W.2d 517, 523 (Tex. 1956) ("The trial court is

required to submit only controverted issues. No jury finding is necessary to

establish undisputed facts.").

       It is well-settled and undisputed by the parties that a trial court's certification

of a class action is reviewed under an abuse of discretion standard. A trial court

abuses its discretion if it acts arbitrarily, unreasonably, or without reference to any

guiding principles. See Bowden v. Phillips Petroleum Co., 247 S.W.3d 690, 696

(Tex. 2008). Here the Court criticizes the trial court's class certification with little


property that is not even in the subdivision. The trial court denied the Defendants' motion to
dismiss for lack of standing presumably because the trial court believed the Plaintiffs could bring
their case as a class action. If there is no class certification, the Defendants will reurge their
motion to dismiss for lack of standing.


                                                3
indication why class certification is inappropriate in this case.              The only

substantive criticism of the certification is that the named class representatives

claim to be unwilling to serve, which is addressed below. Otherwise, this Court's

opinion provides no guidance to trial courts. It is a vague mandate to scrutinize

uncontroverted issues, and would require voluminous evidence to establish matters

not in dispute.

      In a class certification proceeding, the trial court must perform a rigorous

analysis to determine whether all the prerequisites to class certification have been

met and how the claims will be tried. See Southwestern Ref Co. v. Bernal, 22

S.W.3d 425, 435 (Tex. 2000). The trial court in this case analyzed and made

findings as to each of the prerequisites to class certification, as set forth in the trial

court's thorough and well-reasoned order. Despite the acknowledged abuse of

discretion standard, this Court allows the trial court no discretion in concluding this

case is appropriate for class certification.

      The trial court recognized the appropriateness of a class action.              The

alternatives to class certification are unjust and unwieldy: Either the Appellees

spend approximately $50,000 in fees to join 300 individual property owners (not to

mention the additional attorney's fees and expenses, which would far outstrip the

value of the Appellee's property), or the parties proceed with the litigation despite




                                               4
the known risk of subsequent suits and inconsistent judgments. These are the

undisputed alternatives to class certification, which this Court does not deny.

         This Court improperly substitutes its own judgment for that of the trial

court's. Moreover, this Court's opinion would for the first time ever require trial

courts to somehow more "rigorously" analyze undisputed facts and issues - an

unprecedented and wholly improper holding.           The trial court performed the

required rigorous analysis required, and acted within its discretion in certifying the

class.

                                          III.
              THE NUMEROSITY REQUIREMENT IS SATISFIED

         This Court would apparently require some additional unspecified evidence

to prove that joining 300 additional property owners and trying the case with

hundreds of parties would be "impracticable." It is, of course, possible in theory to

join thousands or even millions of parties to any lawsuit. But our courts have long

recognized that it becomes impracticable at a certain point.       This is the class

action's raison d'etre.

         Here the facts are undisputed that in the absence of class certification the

Appellees would have to spend tens of thousands of dollars and join hundreds of

parties. The trial court quite reasonably concluded that joining every property

owner is impracticable. What additional evidence beyond the undisputed facts, or

what additional analysis this Court would require from the trial court is uncertain.


                                           5
The trial court acted well within its discretion in finding the proposed class meets

the requirements of numerosity and impracticability.

                            IV.
       THE NAMED CLASS REPRESENTATIVES ARE ADEQUATE

      This Court voices concern because the class representatives own lakefront

lots, and some class members' lots are not on the lakefront.            There is no

requirement that all class members' claims be identical.       Federal Practice &

Procedure § 1762 notes: "Plaintiffs' grievances generally must share a common

question of law or fact. In fact, only one question of law or fact must be common

to the proposed class.    Some factual differences among class members do not

defeat commonality."        Federal Practice & Procedure § 1762, 7.2.A.2.

Commonality (internal citations omitted). "The typicality requirement centers on

'whether the class representative's claims have the same essential characteristics as

those of the putative class. If the claims arise from a similar course of conduct and

share the same legal theory, factual differences will not defeat typicality.' Put

another way, typicality can be determined by whether there is a sufficient nexus

between the claims of the named representatives and those of the class. As with

commonality, factual differences do not defeat typicality if the course of conduct

and the claims are based on the same legal theory." Federal Practice & Procedure

§ 1762, 7.2.A.3. Typicality (internal citations omitted).




                                          6
      The class representatives' lakefront lots do not make them inadequate

representatives, nor would they be inadequate if their lots did not have lakefront

locations. The central issue in this case - what easement rights the owners have

across the Appellees' property - affects all property owners in the subdivision

identically. The possibility that a prescriptive easement might affect the value of

the various lots differently does not make the representation inadequate.         This

conflict, even assuming it exists, is neither "fundamental," nor does it "go to the

heart of the litigation." See Riemer v. State, 392 S.W.3d, 635 639 (Tex. 2012).

      This Court recognizes the three named class representatives are "subdivision

property owners, Association members, involved in and knowledgeable about the

litigation generally, and would be available for trial." In a calculated effort to

avoid certification, the class representatives claim to be unwilling to participate.

As pointed out in the Appellee's brief, a named defendant class representative's

unwillingness to serve as a representative "should not deter a court from naming it

as it representative." Thillens, Inc. v. Community Currency Exch. Ass 'n ofIllinois,

Inc., 97 F.R.D. 668, 678 (N.D. Ill. 1983).

      This Court recognizes the rule discussed in Thillens and other cases cited by

the Appellees, but finds a distinction between a plaintiffs class representative and

a defendant's class representative.     This distinction is misplaced.    Here the

Appellees bring their own declaratory judgment action to determine the absence of



                                             7
any prescriptive easement, among other issues.        (Exhibit A, Defendants' First

Amended Counterclaim).        Thus, the class is in effect a defendant class, even

though the class representatives might be called plaintiffs.

      This Court's "logical concern" about the willingness of the named

representatives to represent the class overlooks the more glaring logical concern:

How can the Appellees proceed with class certification if each named

representative need only profess her unwillingness to serve in order to defeat

certification?   This is precisely the concern of the many courts that have

recognized that unwilling representatives of a defendant class can still be adequate.

See Federal Practice & Procedure 1768.

      Finally, the Court's concern that the class representatives might opt out is

merely hypothetical.     They have not opted out or even stated they intend to.

Regardless, should they opt out in the future, additional representatives may be

named. There mere possibility that the representatives could opt out is hardly

grounds for reversal of class certification.

                                          v.
                                   CONCLUSION

      For the foregoing reasons, the Appellees request that the Court grant this

Motion for Rehearing, withdraw the June 5, 2015 Memorandmn Opinion, uphold

the class certification, and grant any other reliefto which they may be entitled.




                                           8
                                      Respectfully submitted,

                                      MARTIN & DROUGHT, P.C.
                                      Banl( of America Plaza, 25th Floor
                                      300 Convent Street
                                      San Antonio, Texas 78205
                                      Telephone: (210) 227-7591



                                      ::~
                                        GERALD T. DROUGHT
                                        State Bar No. 06134800
                                        gdrought@mdtlaw.com
                                        MATHIS B. BISHOP
                                        State Bar No. 24045500
                                        mbishop@mdtlaw.com
                                      ATTORNEYS FOR APPELLEES


                      CERTIFICATE OF COMPLIANCE

      As required by TEx. R. APP. P. 9.4(i)(3), I certifY that the Appellees' Motion
for Rehearing contains 1,834 words, excluding the parts of the Motion that are
exempted by TEx. R. APP. P. 9.4(i)(l).


                                             MATHIS B. BISHOP




                                         9
                         CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the above and foregoing
instrument will be sent to the following parties of record by:

                         Regular Mail
                         Certified Mail, Return Receipt Requested
                         Hand Delivery
                         Facsimile

Mr. Tom Newton, Jr.
Allen Stein & Durbin
6243 IH-10 West, Ste. 700
San Antonio, TX 78201
Facsimile: 738-7488

on the 23rd day of June, 2015.



                                     GERALD T. DROUGHT
                                     MATHIS B. BISHOP




                                       10
                              APPENDIX

Tab No.

A         Defendants' First Amended Counterclaim




                                   11
                                                                                                     Filed
•I                                                                                                   13 March 8A11:28
                                                                                                     Kathy Faulkner
                                                                                                     District Clerk
                                                                                                     Coma! District
                                             CAUSE NO. C2012-1457B

     CANYON LAKE ISLAND PROPERTY                                 §        IN THE DISTRICT COURT
     OWNERS ASSOCIATION                                          §
                                                                 §
     vs.                                                         §        207TH JUDICIAL DISTRICT
                                                                 §
     STERLING/SUGGS LIMITED PARTNERSHIP,                         §
     NEAL E. SUGGS AND NADINE R. SUGGS                           §        CO MAL COUNTY, TEXAS

              DEFENDANTS' FIRST AMENDED COUNTERCLAIM, JOINDER OF
           CYNTHIA GRIFFIN, RICH CONLEY AND BILL LESTER AND MOTION TO
                  CERTIFY CLASS, SUBJECT TO SPECIAL APPEARANCE

              Defendants Sterling/Suggs Limited Partnership, Neal E. Suggs and Nadine R. Sttggs, file

     this First Amended Counterclaim, Joinder of Cynthia Griffin, Rich Conley and Bill Lester, and

     Motion to Certify Class Pursuant to TEx. R. Crv. P. 42(c), subject to their Plea to the Jurisdiction,

     and respectfully show the Court as follows:

                                                 I.
                                    FIRST AMENDED COUNTERCLAIM

             Pursuant to Texas Civil Practice & Remedies Code Chapter 37, Defendants seek a

     declaration that Plaintiff Canyon Lake Island Property Owners Association, Cynthia Griffin,

     Rich Conley and Bill Lester and others similarly situated have never had, and do not have, an

     easement by prescription o1· adverse possession to any portion of Defendants' prope1ty, and that

     Defendants have not interfered with or caused damage to any express easement.

                                                           II.
              JOINDER OF CYNTHIA GRIFFIN. RICH CONLEY AND BILL LESTER

             Defendants join Cynthia Griffin, Rich Conley and Bill Lester as class representatives

     along with Plaintiff Canyon Lake Island Property Owners Association.              Cynthia Griffin is

     President of the Canyon Lake Island Propetty Owners Association, and she lives in the

     subdivision. Rich Conley and Bill Lester own homes in the subdivision.



     Defendants' First Amended Counterclaim, Joinder of Cynthia Griffin, Rich Conley        Page I
     and Bill Lester, and Motion to CertifY Class, Subject to Special Appearance


                                                     APPENDIX A
         Cynthia Griffin is an individual who resides in Texas and can be served with process at

her residence at 956 Military Drive, Canyon Lake, Texas, 78133.

         Rich Conley is an individual who resides in Texas and can be served with process at his

residence at 1045 Marine Circle, Canyon Lake, Texas, 78133.

         Bill Lester is an individual who resides in Texas and can be served with process at his

residence at 620 Lake Island Drive, Canyon Lake, Texas, 78133.

                                        III.
                     MOTION FOR CERTIFICATION OF CLASS ACTION

Factual and Procedural Background

         Defendant Sterling/Suggs LP owns the property at 1054 Military Drive, Canyon Lake,

Texas 78133. Defendants Neal and Nadine Suggs live at the property at 1054 Milital'y Drive,

which is located in the Canyon Lake Island Subdivision,

         Plaintiff Canyon Lake Island Property Owners Association is a voluntary association of

property owners within the Canyon Lake Island Subdivision, On October 10, 2012, Plaintiff

Canyon Lake Island Property Owners Association brought suit against the Defendants claiming

that "owners and residents of propetty" in the subdivision have acquired an easement by

prescription over the Defendants' property by allegedly using the property for ingress and egress

to Canyon Lake and as a connnunity park.

        Plaintiff Canyon Lake Island Propetty Owners Association sued the Defendants for

trespass and obtained a Temporat·y Injunction ordering the Defendants to allow access to Canyon

Lake during the pendency of this suit.              Plaintiff Canyon Lake Island Property Owners

Association also seeks a declaratory judgment that owners and residents have an easement by

prescription or adverse possession across the Defendants' property.




Defendants' First Amended Counterclaim, Joinder of Cynthia Griffin, Rich Conley       Page2
and Bill Lester, and Motion to CertifY Class, Subject to Special Appeamnce
         The Canyon Lake Island Property Owners Association contends it is a proper party with

standing to act on behalf of owners and residents in the subdivision. The Canyon Lake Island

Property Owners Association cites no authority for its position, and importantly does not allege

that a judgment as to the Canyon Lake Island Property Owners Association would be binding on

all area residents (including non-Canyon Lake Island Property Owners Association members),

have the affect of res judicata.

Class Certification is Proper and NecessaJ'V

         The Defendants seek a declaratory judgment that Plaintiff Canyon Lake Island Property

Owners Association, Cynthia Griffin, Rich Conley and Bill Lester and others similarly situated

have never had and do not have an easement by prescription or adverse possession to any pmiion

of Defendants' property, and that Defendants have not interfered with or caused damage to any

express easement. However, if Cynthia Griffin, Rich Conley and Bill Lester are not joined and

class action status is not conferred, such a declaratory judgment would be granted only as to the

Canyon Lake Island Property Owners Association itself. Arguably any other resident, whether a

member or not of the Canyon Lake Island Property Owners Association, could contend that he or

she has established an easement across to the Defendants' property by prescription or adverse

possession. Defendants seek class action certification to avoid multiple claims and multiple

lawsuits on the same issues. All prerequisites of a class action are satisfied:

        (I)      the class is so numerous that joinder of all members is impracticable,

        (2)      there are questions of law or fact common to the class,

        (3)      the claims or defenses of the representative parties are typical of the claims or
                 defenses of the class, and

        (4)      the representative parties will fairly and adequately protect the interests of the
                 class.



Defendants' First Amended Counterclaim, Joinder of Cynthia Griffin, Rich Conley           Page3
and Bill Lester, and Motion to Cettil)' Class, Subject to Special Appearance
 TEX. R. Crv. P. 42(a).

          Further, a class action is maintainable under each of the considerations of TEX. R. Crv. P.

 42(b).    In sho1t, the existence or non-existence of an easement by prescription should be

determined as to all parties who might claim such an easement.                     The Canyon Lake Island

Property Owners Association cannot bind the interest of all potential claimants. Separate suits

may result in inconsistent adjudications between claimants.

          For these reasons, the Defendants move the Comt to certify this action as a class action

pursuant to TEx. R. Crv. P. 42(c) to bind all past, present and future owners ofprope1ty in the

subdivision.

                                                      IV.
                                            ATTORNEY FEES

          Defendants are entitled to recover reasonable and necessary allomey fees under Texas

Civil Practice & Remedies Code § 37.009 because this is a suit for declaratory relief.

Defendants may likewise be entitled to recover costs and reasonable and necessary attorney's

fees under Texas Civil Practice & Remedies Code § 16.034. Defendants seek attomey's fees

against the Canyon Lake Island Property Owners Association, Cynthia Griffin, Rich Conley and

Bill Lester under T!lx. R. Crv. P. 42(h) and (i).

                                                  PRAYER

          For these reasons, Defendants ask the Court to grant its Motion to Ce1tify this suit as a

class action, and award all other relief to which Defendants are entitled, either at law or in equity.




Defendants' First Ame~tded Counterclaim, Joinder of Cynthia Griffin, Rich Conley             Page4
and Bill Lester, and Motion to Cettify Class, Subject to Special Appearance
                                                        Respectfully submitted,

                                                        MARTIN & DROUGHT, P.C.
                                                        Bank of America Plaza, 25 1h Floor
                                                        300 Convent Street
                                                        San Antonio, Texas 78205
                                                        Telephone: (210) 227·7591
                                                        Telecopier: (210) 227·7924


                                                        By:
                                                                                  .   '
                                                                                      e------
                                                                                                --~
                                                              GERALD T. DROU HT
                                                              State Bar No. 06134800
                                                              LAURIE N. BURNS
                                                              State BarNo. 24059515
                                                              MATI-IIS B. BISHOP
                                                              State Bar No. 24045500

                                                       ATTORNEYS FOR DEPENDANTS/
                                                       COUNTER--PLAINTIFFS

                                     CERTIFICATE OF SERVICE

        I hereby certify that a true and correct copy of the above and foregoing instrument will be
sent to the following counsel of record by:

                                  Regular Mail
                                  Certified Mail, Retum Receipt Requested
                                  Hand Delivery
            X                     Facsimile

Mr. Tom Newton, Jr.
Allen Stein & Durbin
6243 IH·lO West, Ste. 700
San Antonio, TX 78201
Facsimile: 738·7488

on this the _ _S'_~day of March 2013.
                                                       ~
                                                       LAURIE N. BURNS
                                                       MATHIS B. BISHOP




Defendants' First Amended Counterclaim, Joinder of Cynthia Griffin, Rich Conley                 Page5
and Bill Lester, and Motion to Certify Class, Subject to Special Appearance
