                                                                              ACCEPTED
                                                                          03-15-00498-CV
                                                                                  7196697
                                                               THIRD COURT OF APPEALS
                                                                          AUSTIN, TEXAS
                                                                     10/1/2015 5:28:23 PM
                                                                        JEFFREY D. KYLE
                                                                                   CLERK
                       NO. 03-15-00498-CV

                                                FILED IN
                                         3rd COURT OF APPEALS
               IN THE COURT OF APPEALS       AUSTIN, TEXAS
            FOR THE THIRD DISTRICT OF TEXAS
                                         10/1/2015 5:28:23 PM
                                           JEFFREY D. KYLE
                                                 Clerk


LONG CANYON PHASE II AND III HOMEOWNERS ASSOCIATION,
                        INC.,
                                   Appellant,

                                 v.

              CHRIS CASHION AND LISA CASHION,
                                      Appellees.


Appealed from the County Court at Law No. 2 of Travis County, Texas,
                   Cause No. C-1-CV-15-001016


                       APPELLANT BRIEF


FRANK O. CARROLL III
TBA No. 24082785
DAWN S. HOLIDAY
TBA No. 24046090
AMY M. VANHOOSE
TBA No. 24042085
ROBERTS MARKEL WEINBERG BUTLER HAILEY PC
2800 Post Oak Blvd, 57th Floor
Houston, TX 77056
Phone: (713) 840-1666 Fax: (713) 840-9404
fcarroll@rmwbhlaw.com, dholiday@rmwbhlaw.com
avanhoose@rmwbhlaw.com

                ORAL ARGUMENT REQUESTED
                REQUEST FOR ORAL ARGUMENT

     Pursuant to Appellate Procedure Rule 52.8(b)(4), Appellant

respectfully requests oral argument on belief it will materially aid the

Court in determination of the novel and complex legal issues presented

for review.




                                   ii
             IDENTITIES OF PARTIES AND COUNSEL

Appellant:

LONG CANYON PHASE II AND III HOMEOWNERS ASSOCIATION,
INC.

Frank O. Carroll III (Appellate Counsel)
Dawn Holiday (Appellate Counsel)
Amy M. VanHoose (Trial Court Counsel)
Mark B. Rabe (Trial Court Counsel)
Adam L. Robertson (Trial Court Counsel)
ROBERTS MARKEL WEINBERG BUTLER HAILEY PC
2800 Post Oak Blvd, 57th Floor
Houston, Texas 77056
(713) 840-1666 Telephone
(713) 840-9404 Facsimile

Appellees:

CHRIS CASHION AND LISA CASHION

William C. Davidson (Lead Counsel)
CHAMBERLAIN MCHANEY
301 Congress, 21st Floor
(512) 474-9124 Telephone
(512) 474-8582 Facsimile




                                iii
                               TABLE OF CONTENTS

REQUEST FOR ORAL ARGUMENT ....................................................... ii

IDENTITIES OF PARTIES AND COUNSEL .........................................iii

TABLE OF CONTENTS .......................................................................... iv

TABLE OF AUTHORITIES ..................................................................... vi

RECORD REFERENCES ......................................................................... 1

STATEMENT OF THE CASE .................................................................. 2

ISSUE PRESENTED ................................................................................ 3

STATEMENT OF FACTS ......................................................................... 3

               A.     The Association and the Deed Restrictions ................... 3

               B.     The Cashions Violate the Deed Restrictions ................. 4

               C.     The Cashions Continue Violating the Deed
                      Restrictions .................................................................... 4

               D.     The Association Sends a Letter to the Cashions
                      Regarding       Their          Violations             of       the         Deed
                      Restrictions .................................................................... 5

               E.     The Cashions Respond to the Letter ............................. 5

               F.     The Cashions Sue the Association ................................. 6

               G.     The Association Moves to Dismiss Under the Anti-
                      SLAPP Statute ............................................................... 7

SUMMARY OF THE ARGUMENT .......................................................... 7



                                                 iv
STANDARD OF REVIEW......................................................................... 8

ARGUMENTS AND AUTHORITIES ....................................................... 9

                A.      The Texas Anti-SLAPP Statute ..................................... 9

                        1.       The Purpose of the Texas Anti-SLAPP Statute ... 9

                        2.       The Right to Petition and the Right of Association
                                 Protected by the Texas Anti-SLAPP Statute ..... 10

                        3.       Mandatory Dismissal Under the Texas Anti-
                                 SLAPP Statute .................................................... 11

                B.      The Trial Court Erred in Failing to Dismiss the
                        Cashion’s Claims Related to the Association Sending a
                        Pre-Suit Notice ............................................................. 12

                        1.       The Cashions’ lawsuit infringes on the
                                 Association’s             constitutional                 right            to
                                 petition ................................................................ 16

                        2.       The Cashions’ lawsuit infringes on the
                                 Association’s           constitutional                 right             of
                                 association ........................................................... 18

                        3.       The Cashions’ failed to establish, by clear and
                                 specific evidence, a prima facie case for each
                                 essential element of the claim in question ......... 20

PRAYER .................................................................................................. 25

CERTIFICATE OF COMPLIANCE........................................................ 26

CERTIFICATE OF SERVICE................................................................. 26

APPENDIX .............................................................................................. 27



                                                     v
                        TABLE OF AUTHORITIES

State Cases

Better Bus. Bureau of Metro. Dall. v. BH DFW, Inc.,
   402 S.W.3d 299 (Tex. App.—Dallas 2013) ................................... 9, 21

Hot Rod Hill Motor Park v. Triolo,
  293 S.W.3d 788 (Tex. App.—Waco 2009) ........................................... 3

Rehak Creative Servs. v. Witt,
  404 S.W.3d 716 (Tex. App.—Houston [14th Dist.] 2013) ........ 8, 9, 10

Serafine v. Blunt, 03-12-00726-CV,
   2015 WL 3941219 (Tex. App.—Austin June 26, 2015) .............. 21, 24

Sierra Club v. Andrews County,
   418 S.W.3d 711 (Tex. App.—El Paso 2013) ............................... 13, 16

State Statutes

Tex. Civ. Prac. & Rem. Code Ann. § 27.001 et. seq. (West 2012) . passim

Tex. Prop. Code Ann. § 209.001 et. seq. (West 2012) ............................ 17




                                        vi
                       RECORD REFERENCES

Citations in this Appellant’s Brief to the parties are as follows:

Appellant Long Canyon Phase II and III Homeowners Association, Inc.
will be referred to as “the Association” or “Appellant.”

Appellees Chris Cashion and Lisa Cashion will be referred to as
“the Cashions” or “Appellees.”

Citations in this Appellant’s Brief to the record are as follows:

CR – Clerk’s Record (i.e. CR [page]; e.g. CR 1)

RR – Reporter’s Record (i.e. RR [page]; e.g. RR 1)

App. – Appendix (i.e. App. [tab]; e.g. App. 1)




                                      1
                 STATEMENT OF THE CASE

Nature of the Case:   This appeal arises from claims that the
                      Association acted outside its authority when it
                      sent a pre-suit notice to Appellees and allegedly
                      trespassed on their property. (CR 7–16).

Course of
Proceedings:          Appellees filed an action against five (5) former
                      and current board members and Long Canyon
                      for a declaratory judgment. (CR 7–16). Long
                      Canyon filed a Motion to Dismiss Pursuant to
                      the Texas Citizens Participation Act (“TCPA”).
                      (CR 74–130). Claims against the individual
                      board members were non-suited by Plaintiffs.
                      (CR 147–48). The trial court denied the motion
                      to dismiss. (CR 197).

Trial Court:          County Court at Law No. 2, Travis County,
                      Texas, Judge Eric M. Shepperd presiding;
                      Cause No. C-1-CV-15-001016.

Trial Court’s
Disposition:          The Court entered an order on July 22, 2015,
                      denying Long Canyon’s motion to dismiss.
                      (CR 197).




                                 2
                        ISSUE PRESENTED

1)   Did the Trial Court err when it denied the Association’s Motion to
     Dismiss?

                      STATEMENT OF FACTS

     This matter grew out of deed restriction enforcement activity by

the Association against the Cashions.

     A.   The Association and the Deed Restrictions.

     Long Canyon Subdivision is a deed restricted community located

in Austin, Texas. CR 99. All property in Long Canyon is subject to

restrictive covenants contained in the Declaration of Covenants,

Conditions, and Restrictions for Long Canyon Section III (the

“Declaration”). Id. The Declaration designates the Association as the

homeowners association for Long Canyon. CR 98. Section 1.07 of the

Declaration defines the “Drainage Easement” as the areas designated

on the Plat as a Drainage Easement and shall include any creeks,

streams, sedimentation basins or bar ditches therein designated or

constructed.” CR 98. Section 4.02 gives the Architectural Control

Committee (“ACC”) the right to approve the removal/addition of trees,

shrubs, hedges, groundcover, and all other landscaping. CR 103. Section

9.04 of the Declaration states “Each Owner covenants not to disturb or


                                   3
displace any trees or other vegetation within the drainage easements as

defined in this Declaration and shown on the Plat,” and that “there

shall be no development, Improvements or Structures, temporary or

permanent in any drainage easements except as approved in writing by

the ACC or the Association, as the situation requires.” CR 122.

     B.    The Cashions Violate the Deed Restrictions.

     The Cashions are the owners of 5920 Standing Rock (the

“Property”). CR 9. Problems began when the Cashions started clearing

trees and vegetation in the drainage easement, located across the back

end of the Property. CR 88. The Association tried to work with the

Cashions to have the drainage easement returned to its original state,

but no agreement could be reached. Id.

     C.    The    Cashions      Continue      Violating    the    Deed
           Restrictions.

     In May 2013, the Cashions again cut down a large tree which

would have required ACC approval before removing. CR 125–26. The

Cashions argued that the tree was dead and they didn’t think they had

to get approval to remove a dead tree. Id.




                                    4
     D.    The Association Sends a Letter to the Cashions
           Regarding Their Violations of the Deed Restrictions.

     On December 18, 2014, the Association, through its counsel Brad

Rockwell, sent a pre-suit notice to the Cashions advising of the

Association’s intent to file suit against the Cashions. CR 127–28. The

Association alleged that the Cashions had, over the course of the last

two years, extended their landscaped back yard into the drainage

easement, mowed the easement, and taken other actions that

constituted clearing of the easement. Id. The pre-suit notice alleged that

the Association had previously sent the Cashions notice of some of these

violations. Id. The Association indicated that they were going to fine the

Cashions $8,000 and seek $10,000 in damages or specific performance

of repairing the easement. Id.

     E.    The Cashions Respond to the Letter.

     On December 23, 2014, the Cashions, through their counsel Bill

Davidson, responded to the Association’s pre-suit notice. CR 129–30.

The Cashions alleged that the Association’s claims go back to a

2009 lawsuit and the only issue since then was the 2013 removal of a

dead tree. Id. The Cashions asked for copies of the Association’s notices

and a list of the violations. Id. The Cashions also alleged that the


                                    5
Association spies on their Property, has trespassed on the Property, and

took pictures of the Cashion property without permission. Id.

Importantly, the response from the Cashions stated:

     If the HOA elects to files suit making any of the allegations
     claimed in your letter, Mr. and Mrs. Cashion will file a
     counter-claim seeking damages for harassment, violation of
     the rules and regulations, DCCR, and authority of the Board
     of the HOA, and join each member of the Board in the
     lawsuit for acting beyond the scope of their authority.
     Mr. and Mrs. Cashion will also seek an injunction against
     further harassment by the HOA and its board of directors
     and costs and attorney’s fees. CR 130.

     E.    The Cashions Sue the Association.

     The Cashions filed suit on February 4, 2015, against the

Association, as well as present and past Board Members. CR 7–16. The

Cashions seek damages for negligence and intentional infliction of

emotional distress. Id. The Cashions also seek judicial declarations that

the Association exceeded its enforcement authority, that the Cashions’

landscaping in their backyard does not violate the Declaration, that the

Association acted outside its scope of authority, and that the

Association’s actions were made in bad faith and ultra vires. Id. The

Cashions also seek an injunction barring further bad faith and ultra

vires acts by the Association. Id.



                                     6
     F.    The Association Moves to Dismiss Under the Anti-
           SLAPP Statute.

     After filing suit against current and former board members and

the Association, the Cashions non-suited the board members, leaving

the Association as the only remaining Defendant. CR 147–48. The

Association filed a Motion to Dismiss Pursuant to Chapter 27 of the

Texas Civil Practice and Remedies Code, known as “The Texas Citizens

Participation Act” or the “Anti-SLAPP Statute.” CR 74–130. The trial

court denied the motion to dismiss, and this appeal followed. CR 197.

                 SUMMARY OF THE ARGUMENT

     The Texas Citizens Participation Act (“TCPA”), codified in Tex.

Civ. Prac. & Rem. Code § 27.001, et seq., was enacted to protect

constitutional rights, including the right to petition and the right of

association.

     The Cashions are infringing upon the Association’s constitutional

right to petition by filing this lawsuit. This lawsuit is based on the

Association sending the Cashions a pre-suit notice required by Section

209.006 of the Texas Property Code (“209 Letter”). Section 209.006

states that a property owners’ association, such as the Association,

cannot file a lawsuit against a member until a Section 209.006 pre-suit


                                   7
notice is sent. Because Section 209.006 required the Association to send

the pre-suit notice before filing a lawsuit, and because the Cashions are

claiming the Association is liable for sending that pre-suit notice, this

lawsuit is an attempt to prevent the Association from following

necessary procedures in exercising its constitutional right to petition.

     The Cashions have also infringed upon the Association’s

constitutional right of association. The Association is a collective group

that has the common interest of preserving and protecting certain

drainage easements, including the one across the back of the Property.

The Association’s pre-suit notice exercised its right to express, promote,

pursue, and defend this common interest. By filing this lawsuit, the

Cashions are attempting to prevent the Association from furthering

their common interest. By doing so, the Cashions are infringing on the

Association’s right of association. For these reasons, the trial court

should be reversed.

                       STANDARD OF REVIEW

     On a motion to dismiss brought pursuant to Chapter 27 of the

Texas Civil Practices and Remedies Code, the court reviews the trial

court’s decision de novo. Rehak Creative Services, Inc. v. Witt, 404



                                    8
S.W.3d 716, 726 (Tex. App.—Houston [14th Dist.] 2013), review denied

(Sept. 6, 2013).

                     ARGUMENTS & AUTHORITIES

     A.        The Texas Anti-SLAPP Statute.

     This appeal focuses on the “Texas Citizens Participation Act,”

which is codified in Chapter 27 of the Civil Practices and Remedies

Code under the heading “Actions Involving the Exercise of Certain

Constitutional Rights.” See Tex. Civ. Prac. & Rem. Code Ann.

§§ 27.001–.011 (Vernon 2012). This statute is an anti-SLAPP law,

which     is   an   acronym   for   “Strategic   Lawsuits   Against   Public

Participation.” See Rehak Creative Servs. Inc. v. Witt, 404 S.W.3d 716,

719 (Tex. App.—Houston [14th Dist.] 2013, pet. denied).

     1.        The Purpose of the Texas Anti-SLAPP Statute.

     The purpose of the TCPA is “to encourage and safeguard the

constitutional rights of persons to petition, speak freely, associate

freely, and otherwise participate in government to the maximum extent

permitted by law and, at the same time protect the rights of a person to

file meritorious lawsuits for demonstrable injury.” Tex. Civ. Prac. &

Rem. Code Ann. § 27.002 and Better Bus. Bureau of Metro. Dallas, Inc.



                                       9
v. BH DFW, INC., 402 S.W.3d 299, 305–06 (Tex. App.—Dallas 2013),

reh’g overruled (June 12, 2013), review denied (Jan. 17, 2014). It does so

by establishing a mechanism for early dismissal of lawsuits that

threaten the right of free speech, the right to petition, or the right of

association.             Rehak Creative Servs. Inc. v. Witt, 404 S.W.3d

716, 719 (Tex. App.—Houston [14th Dist.] 2013, pet. denied). The

statute is to be “construed liberally to effectuate its purpose and intent

fully.” Tex. Civ. Prac. & Rem. Code Ann. § 27.011(a).

     2.    The Right to Petition and the Right of Association
           Protected by the Texas Anti-SLAPP Statute.

     The TCPA provides a means for a defendant, early in the course of

a lawsuit, to seek dismissal of certain claims identified in the Act,

including a legal action based on, relating to, or in response to a party’s

exercise of the right to petition or the right of association. Id. § 27.001(4)

and § 27.001(2).

      An “exercise of the right of petition” is broadly defined under the

TCPA as:




                                     10
     • a communication in or pertaining to a judicial proceeding;
     • a communication that is reasonably likely to encourage
       consideration or review of an issue by a judicial body;
     • a communication reasonably likely to enlist public
       participation in an effort to effect consideration of an
       issue by a judicial body; or
     • any other communication that falls within the protection
       of the right to petition government under the Constitution
       of the United States or the constitution of this state.

Id. § 27.001(4)(A) (emphasis added).

     An “exercise of the right of association” is broadly defined under

the TCPA as “a communication between individuals who join together

to collectively express, promote, pursue, or defend common interests.”

Id. § 27.001(2). A “communication” is defined under the TCPA as “the

making or submitting of a statement or document in any form or

medium, including oral, visual, written, audiovisual, or electronic.” Id.

§27.001(1).

     3.       Mandatory Dismissal Under the Texas Anti-SLAPP
              Statute.

     Under the TCPA, the trial court must dismiss the action if the

moving party shows, by a preponderance of the evidence, that the legal

action is based on, relates to, or is in response to the party’s exercise of

the right of free speech, the right to petition, or the right of association,

and the party bringing the legal action fails to establish by clear and


                                     11
specific evidence a prima facie case for each essential element of the

claim in question. Id. § 27.005(b)–(c).

     Furthermore, the trial court must dismiss a legal action against

the moving party if the moving party establishes by a preponderance of

the evidence each essential element of a valid defense to the

nonmovant’s claim. Id. § 27.005(d).

     In determining whether a legal action should be dismissed under

the TCPA, “the court shall consider the pleadings and supporting and

opposing affidavits stating the facts on which the liability or defense is

based.” Id. § 27.006(a).

     B.    The Trial Court Erred in Failing to Dismiss the
           Cashion’s Claims Related to the Association Sending a
           Pre-Suit Notice.

     There was little dispute in the trial court, and no dispute under

the law, that sending a pre-suit notice is “a communication that is

reasonably likely to encourage consideration or review of an issue by a

judicial body.” Id. § 27.001(4)(A). Accordingly, the question before the

court, and the standard on appeal, is whether sending the pre-suit

notice “is the specific conduct complained of, from which all the other

allegations of wrongdoing emanate and around which they revolve



                                      12
. . . the act that led to Appellees’ claims.” Sierra Club v. Andrews

County, 418 S.W.3d 711, 717 (Tex. App.—El Paso 2013), review granted,

judgment rev’d on other grounds, 463 S.W.3d 867 (Tex. 2015). The

answer is yes.

     In the letter responding to the Association’s pre-suit notice,

counsel for the Cashions stated:

     If the HOA elects to files suit making any of the allegations
     claimed in your letter, Mr. and Mrs. Cashion will file a
     counter-claim seeking damages for harassment, violation of
     the rules and regulations, DCCR and authority of the Board
     of the HOA, and join each member of the Board in the
     lawsuit for acting beyond the scope of their authority. Mr.
     and Mrs. Cashion will also seek an injunction against
     further harassment by the HOA and its board of directors
     and costs and attorney’s fees. CR 130.

     To further support the position of the Appellant that the pre-suit

notice “is the specific conduct complained of, from which all the other

allegations of wrongdoing emanate and around which they revolve

. . . the act that led to Appellees’ claims,” one need look no further than

the Cashions’ petition.

     The petition is a mere ten pages long, including a case style,

signature block, and verification page. CR 7–16. After three pages of




                                    13
prefatory information on the parties, the petition contains a four

paragraph “facts” section:

     •     The first “fact” paragraph involves only background
           information on the Property and the Association. CR 9–
           10.

     •     The second “fact” paragraph begins “[o]n or about
           December 24, 2014 (Christmas Eve) the Cashions
           received a letter from Long Canyon at their residence
           in Travis County . . .” CR 10.

     •     The third “fact” paragraph states “[t]he letter includes
           false and unsupported claim (sic) that “during the past
           two years you (the Cashions) have unlawfully damaged
           this drainage easement and expanded your landscaped
           law (sic) into the easement.” CR 10.

     •     The fourth (and last) “fact” paragraph discusses an
           alleged    “pattern      of   harassment”      including
           “monitor[ing] visitors,” “watch[ing] whenever someone
           comes to work in the yard,” mak[ing] their presence
           known,” “trespass[ing] on the Cashion’s (sic) property,”
           and tak[ing] pictures of the Cashion’s (sic) property
           without their consent.” CR 10.

     After the “facts” section, the petition contains a one-page, five-

paragraph “causes of action” section:

     •     The first “causes of action” paragraph “incorporates by
           reference the factual allegations contained in
           paragraphs 13–16.” CR 11.

     •     The second “causes of action” paragraph states “Long
           Canyon and the Board have a duty to supervise all
           officers, agents and employees of Long Canyon and to


                                   14
           see that their duties are being properly preformed.
           Long Canyon and the Board breached that duty by
           allowing individual Board members to harass the
           Cashions over matters that are not permitted under
           the Declaration, ACC rules and HOA by-laws.” CR 11.

     •     The third “causes of action” paragraph states “Long
           Canyon and the Board acting in bad faith, intentionally
           communicated through authorizing its attorney to
           write in a coarse and offensive manner, a letter
           addressed to the Cashions and by such action, Long
           Canyon and the Board intentionally annoyed and
           alarmed the Cashions on Christmas Eve.” CR 11.

     •     The fourth “causes of action” paragraph states “[i]n the
           alternative, Long Canyon and the Board, acted with
           intent to cause emotional distress to the Cashions. By
           targeting the Cashions, the defendants conduct was
           extreme and outrageous. The actions of the defendants
           caused the Cashions emotional distress. The emotional
           distress suffered by the Cashions was severe.” CR 11.

     •     The fifth “causes of action” paragraph states “[t]he
           Cashions seek damages within the jurisdictional limits
           of this court.” CR 11.

     Analyzing the petition, half of the factual allegations relate to the

Association sending the pre-suit notice. CR 10. These “facts” are then

use to support one full “cause of action” for the “bad faith and

intentional . . . annoy[ance] and alarm [to the] Cashions on Christmas

Eve.” CR 11. The remaining “causes of action” use the three substantive

“fact” paragraphs, two of which involve the Association’s pre-suit notice,



                                   15
to support the remaining allegations of negligence, intentional infliction

of emotional distress, trespass, and perhaps, though not artfully pled,

private nuisance. CR 11.

     From a review of the petition, the Association sending the pre-suit

notice “is the specific conduct complained of, from which all the other

allegations of wrongdoing emanate and around which they revolve

. . . the act that led to Appellees’ claims.” Sierra Club v. Andrews

County, 418 S.W.3d 711, 717 (Tex. App.—El Paso 2013), review granted,

judgment rev’d on other grounds, 463 S.W.3d 867 (Tex. 2015).

Accordingly,    the   Cashions’    lawsuit   violated   two    important

constitutional rights of the Association.

     1.    The Cashions’ lawsuit infringes on the Association’s
           constitutional right to petition.

     The Cashions’ lawsuit should be dismissed because all the claims

are based on, related to, or in response to the Association’s exercise of

their right to petition. Under the TCPA, a defendant exercises its right

to petition when it makes a communication pertaining to a judicial

proceeding. Id. at §27.001(4). A communication includes the making or

submitting of a statement or document in any form or medium,

including written.


                                    16
     In the Cashions’ Original Petition, the Cashions claim that the

Association is liable for negligence, bad faith, intentional infliction of

emotional distress, declaratory judgment, and an injunction because the

Association sent the Cashions the 209 Letter informing the Cashions’

that they were in violation of the Declaration for harming a protected

drainage easement, and if they did not cure the violation, the

Association would seek relief in a judicial proceeding. CR 7–16. In

construing the TCPA liberally, the Cashions’ claims fall within the

scope of the TCPA because they are based on, related to, or in response

to a communication made by the Association in exercising its right to

petition. Tex. Civ. Prac. & Rem. Code § 27.001(4).

     Under Section 209.006 of the Texas Property Code, before a

property owners’ association is allowed to file a lawsuit (i.e. judicial

proceeding) or levy a fine against a homeowner, the property owners’

association must first give written notice to the homeowner. Tex. Prop.

Code § 209.006(a). For a property owners’ association, a pre-suit notice

pursuant to Section 209.006 is the first required step in seeking relief

through a judicial proceeding. Therefore, when the Association—a

property owners’ association—mailed the 209 Letter to the Cashions, it



                                   17
was simply attempting to comply with Section 209.006 in order to

obtain relief in a judicial proceeding. By its fundamental nature, the

209 Letter is communication pertaining to a judicial proceeding and is

protected under the TCPA.

     Deed restriction violation lawsuits—if not most lawsuits—are

rarely filed without some form of prior written efforts by the parties to

attempt to resolve the litigation before it is filed. Indeed, in Texas, a

deed restriction violation suit requires pre-suit notification of the

violation to the homeowner. The Cashions argue that pre-suit efforts to

resolve a legal dispute before actually filing the lawsuit should not be

protected under the TCPA. This would defeat the purpose of the broad

protection of the TCPA and is contrary to the language of the Act. For

these reasons, pursuant to the TCPA, the Cashions’ lawsuit should be

dismissed and the trial court should be reversed.

     2.    The Cashions’ lawsuit infringes on the Association’s
           constitutional right of association.

     The Cashions’ legal action should be dismissed because it is based

on, related to, or in response to the Association exercising its right of

association. Under the TCPA, a defendant exercises its right of

association when it communicates with individuals that are joined


                                   18
together to collectively express, promote, pursue, or defend common

interests. Tex. Civ. Prac. & Rem. Code § 27.001(2). A “communication”

includes submitting a written statement or document, such as a pre-suit

notice. Id. at § 27.001(1).

      The Cashions claim that the Association is liable for negligence,

bad faith, intentional infliction of emotional distress, declaratory

judgment, and an injunction because the Association sent the Cashions

a pre-suit notice asking the Cashions to cure damages they caused to

the   environmentally       sensitive        drainage   easement       abutting      the

Cashions’ backyard.

      To   exercise   the     right     of    association   is   to:    (1)   send    a

communication; (2) between individuals; (3) who are joined together; (4)

to collectively express, promote, pursue, or defend common interests. Id.

at § 27.001(2). First, it is undisputed that the 209 Letter is a

“communication” as defined under the TCPA. The 209 Letter was a

document submitted in written form. Id. at §27.001(1). Second, the 209

Letter was sent between individuals; the Association and the Cashions.

Third, the Cashions and the Association were joined together. Fourth,

the Association was formed to collectively express, promote, pursue, or



                                         19
defend various common interests of the Association. One of those

interests was protecting drainage easements, as expressly stated in the

Declaration.

     Therefore, when the 209 Letter was sent to the Cashions, it was

sent to individuals who were joined together to express, promote,

pursue, and defend the preservation of the drainage easement, and the

pre-suit notice was sent regarding the expression, promotion, pursuit,

and defense of the drainage easement. That is why this lawsuit, in

response to the 209 Letter, is an attempt to prevent the Association

from exercising its right of association. For these reasons, pursuant to

the TCPA, the Cashions’ lawsuit should be dismissed and the trial court

should be reversed.

     3.    The Cashions failed to establish, by clear and specific
           evidence, a prima facie case for each essential element
           of the claim in question.

     Because the Cashions’ legal action is based on, relates to, or is in

response to the Association’s right to petition and the right of

association, the burden shifts to the Cashions to establish, by clear and

specific evidence, a prima facie case for each essential element of the

claim in question. Id. § 27.005(b)–(c). “Conclusory statements are not



                                   20
probative and accordingly will not suffice to establish a prima facie

case.” Serafine v. Blunt, 03-12-00726-CV, 2015 WL 3941219, at *3

(Tex. App.—Austin June 26, 2015, no pet.) (citing Better Bus. Bureau of

Metro. Houston, Inc. v. John Moore Servs., Inc., 441 S.W.3d 345, 355

(Tex. App.—Houston [1st Dist.] 2013, pet. denied; Lipsky II, 460 S.W.3d

at 592 (explaining that “bare, baseless opinions” are not “a sufficient

substitute for the clear and specific evidence required to establish a

prima facie case” under the Act)). The Cashions did not meet this

burden.

     The petition contains a one-page, five-paragraph “causes of action”

section:

     •     The first “causes of action” paragraph “incorporates by
           reference the factual allegations contained in
           paragraphs 13–16.” CR 11.

     •     The second “causes of action” paragraph states “Long
           Canyon and the Board have a duty to supervise all
           officers, agents and employees of Long Canyon and to
           see that their duties are being properly preformed.
           Long Canyon and the Board breached that duty by
           allowing individual Board members to harass the
           Cashions over matters that are not permitted under
           the Declaration, ACC rules and HOA by-laws.” CR 11.

     •     The third “causes of action” paragraph states “Long
           Canyon and the Board acting in bad faith, intentionally
           communicated through authorizing its attorney to


                                  21
           write in a coarse and offensive manner, a letter
           addressed to the Cashions and by such action, Long
           Canyon and the Board intentionally annoyed and
           alarmed the Cashions on Christmas Eve.” CR 11.

      •    The fourth “causes of action” paragraph states “[i]n the
           alternative, Long Canyon and the Board, acted with
           intent to cause emotional distress to the Cashions. By
           targeting the Cashions, the defendants conduct was
           extreme and outrageous. The actions of the defendants
           caused the Cashions emotional distress. The emotional
           distress suffered by the Cashions was severe.” CR 11.

      •    The fifth “causes of action” paragraph states “[t]he
           Cashions seek damages within the jurisdictional limits
           of this court.” CR 11.

      The first “cause of action” (second paragraph) was non-suited and

is not at issue. CR 147–148.

      The second “cause of action” (third paragraph) states “Long

Canyon and the Board acting in bad faith, intentionally communicated

through authorizing its attorney to write in a coarse and offensive

manner, a letter addressed to the Cashions and by such action, Long

Canyon and the Board intentionally annoyed and alarmed the Cashions

on Christmas Eve.” CR 11. This purports to be a cause of action for “bad

faith.”

      Appellant has found no authority supporting a cause of action for

“bad faith” against a homeowner’s association, and further, no authority


                                  22
that a homeowner’s association owes a common-law duty of “good faith

a fair dealing.”

      If this paragraph is instead construed as an action for private

nuisance, the Cashions failed to establish the conduct complained of

affected “property rights and privileges in respect to the use and

enjoyment of the land . . .” Hot Rod Hill Motor Park v. Triolo, 293

S.W.3d 788, 790 (Tex. App.—Waco 2009, pet. denied). The Cashions

further failed to show that the alleged “annoy[ance] and alarm[ ]” were

a result of “a deprivation of enjoyment of real property.” Id. Further,

this “cause of action” contains the conclusory statement that the

Association “intentionally annoyed and alarmed the Cashions.”

      The third “cause of action” (fourth paragraph) states “[i]n the

alternative, Long Canyon and the Board, acted with intent to cause

emotional distress to the Cashions. By targeting the Cashions, the

defendants conduct was extreme and outrageous. The actions of the

defendants caused the Cashions emotional distress. The emotional

distress suffered by the Cashions was severe.” CR 11.

      This “cause of action” is rife with conclusory statements.

“Conclusory statements are not probative and accordingly will not



                                  23
suffice to establish a prima facie case.” Serafine v. Blunt, 03-12-00726-

CV, 2015 WL 3941219, at *3 (Tex. App.—Austin June 26, 2015, no pet.).

Specifically, the “cause of action” paragraph for intentional infliction of

emotional distress states:

     •     Long Canyon and the Board, acted with intent to cause
           emotional distress to the Cashions;

     •     The defendants conduct was extreme and outrageous;

     •     The emotional distress suffered by the Cashions was
           severe.

CR 11. These conclusory statements are insufficient as a matter of law

to establish the requisite prima facie case. For these reasons, pursuant

to the TCPA, the Cashions’ lawsuit should be dismissed and the trial

court should be reversed.




                                    24
                               PRAYER

     For these reasons, and all the reasons set forth above, the Trial

Court’s Order Denying the Association’s Motion to Dismiss Pursuant to

the Texas Citizens Participation Act should be reversed. Accordingly,

Long Canyon Phase II and III Homeowners Association, Inc. requests

this Court reverse the judgment of the Trial Court, and for such other

and further relief to which Appellant may be entitled.


                                Respectfully submitted,
                                ROBERTS MARKEL WEINBERG
                                BUTLER HAILEY PC

                                /s/ Frank O. Carroll III
                                _________________________________
                                FRANK O. CARROLL III
                                TBA No. 24082785
                                DAWN S. HOLIDAY
                                TBA No. 24046090
                                AMY M. VANHOOSE
                                TBA No. 24042085
                                2800 Post Oak Blvd, 57th Floor
                                Houston, TX 77056
                                (713) 840-1666
                                Fax: (713) 840-9404
                                fcarroll@rmwbhlaw.com
                                dholiday@rmwbhlaw.com
                                avanhoose@rmwbhlaw.com
                                ATTORNEYS FOR APPELLANT,
                                LONG CANYON PHASE II AND III
                                HOMEOWNERS ASSOCIATION, INC.



                                   25
                CERTIFICATE OF COMPLIANCE
     Pursuant to Rule 9.4 i(3) of the Texas Rules of Appellate
Procedure, I certify that the word count in this Appellant’s Brief is
4,361 words.


                                /s/ Frank O. Carroll III
                                ____________________________________
                                FRANK O. CARROLL III



                   CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the      foregoing
instrument was served upon the parties listed below by         facsimile,
messenger, regular U.S. Mail, certified mail, return receipt   requested
and/or electronic service in accordance with the Texas          Rules of
Appellate Procedure on this the 1st day of October, 2015.

William C. Davidson
bdavidson@chmc-law.com
CHAMBERLAIN MCHANEY
301 Congress, 21st Floor
(512) 474-9124 Telephone
(512) 474-8582 Facsimile
ATTORNEY FOR APPELLEES


                                /s/ Frank O. Carroll III
                                _________________________________
                                FRANK O. CARROLL III




                                 26
                           APPENDIX


TAB 1:   Tex. Civ. Prac. & Rem. Code Ann. § 27.001 et. seq.
         (West 2012)

TAB 2:   Tex. Prop. Code Ann. § 209.001 et. seq. (West 2012)


TAB 3:   Trial Court Order Denying Motion to Dismiss




                                27
      TAB 1
T.C.P.R.C. § 27.001 et. seq.
                      Tex. Civ. Prac. & Rem. Code § 27.001
 This document is current through the 2015 regular session, 84th Legislature,
 S.B. 45, S.B. 293 (ch. 2), S.B. 415(ch. 15), S.B. 459, S.B. 529 (ch. 37), S.B.
 835 (ch. 6), S.B. 901 (ch. 54), S.B. 903 (ch. 3), S.B. 1749 (ch. 29), and S.B.
                                  1985 (ch. 4).

Texas Statutes & Codes Annotated by LexisNexis®           > Civil Practice and Remedies Code
 > Title 2 Trial, Judgment, and Appeal     > Subtitle B Trial Matters   > Chapter 27 Actions
Involving the Exercise of Certain Constitutional Rights

Sec. 27.001. Definitions.
  In this chapter:
      (1) “Communication” includes the making or submitting of a statement or
         document in any form or medium, including oral, visual, written,
         audiovisual, or electronic.
      (2) “Exercise of the right of association” means a communication between
         individuals who join together to collectively express, promote, pursue, or
         defend common interests.
      (3) “Exercise of the right of free speech” means a communication made in
         connection with a matter of public concern.
      (4) “Exercise of the right to petition” means any of the following:
          (A) a communication in or pertaining to:
             (i) a judicial proceeding;
             (ii) an official proceeding, other than a judicial proceeding, to
                 administer the law;
             (iii) an executive or other proceeding before a department of the
                  state or federal government or a subdivision of the state or federal
                  government;
             (iv) a legislative proceeding, including a proceeding of a legislative
                 committee;
             (v) a proceeding before an entity that requires by rule that public
                notice be given before proceedings of that entity;
             (vi) a proceeding in or before a managing board of an educational or
                 eleemosynary institution supported directly or indirectly from public
                 revenue;
                                                                      Page 2 of 3
                      Tex. Civ. Prac. & Rem. Code § 27.001


      (vii) a proceeding of the governing body of any political subdivision
          of this state;
      (viii) a report of or debate and statements made in a proceeding
          described by Subparagraph (iii), (iv), (v), (vi), or (vii); or
      (ix) a public meeting dealing with a public purpose, including
          statements and discussions at the meeting or other matters of
          public concern occurring at the meeting;
   (B) a communication in connection with an issue under consideration or
      review by a legislative, executive, judicial, or other governmental
      body or in another governmental or official proceeding;
   (C) a communication that is reasonably likely to encourage consideration
      or review of an issue by a legislative, executive, judicial, or other
      governmental body or in another governmental or official proceeding;
   (D) a communication reasonably likely to enlist public participation in an
      effort to effect consideration of an issue by a legislative, executive,
      judicial, or other governmental body or in another governmental or
      official proceeding; and
   (E) any other communication that falls within the protection of the right to
      petition government under the Constitution of the United States or the
      constitution of this state.
(5) “Governmental proceeding” means a proceeding, other than a judicial
   proceeding, by an officer, official, or body of this state or a political
   subdivision of this state, including a board or commission, or by an
   officer, official, or body of the federal government.
(6) “Legal action” means a lawsuit, cause of action, petition, complaint,
   cross-claim, or counterclaim or any other judicial pleading or filing that
   requests legal or equitable relief.
(7) “Matter of public concern” includes an issue related to:
   (A) health or safety;
   (B) environmental, economic, or community well-being;
   (C) the government;
   (D) a public official or public figure; or
   (E) a good, product, or service in the marketplace.
                                                                          Page 3 of 3
                              Tex. Civ. Prac. & Rem. Code § 27.001


     (8) “Official proceeding” means any type of administrative, executive,
        legislative, or judicial proceeding that may be conducted before a public
        servant.
     (9) “Public servant” means a person elected, selected, appointed, employed,
        or otherwise designated as one of the following, even if the person has
        not yet qualified for office or assumed the person’s duties:
          (A) an officer, employee, or agent of government;
          (B) a juror;
          (C) an arbitrator, referee, or other person who is authorized by law or
             private written agreement to hear or determine a cause or controversy;
          (D) an attorney or notary public when participating in the performance of
             a governmental function; or
          (E) a person who is performing a governmental function under a claim of
             right but is not legally qualified to do so.

History

Enacted by Acts 2011, 82nd Leg., ch. 341 (H.B. 2973), § 2, effective June 17,
2011.

Texas Statutes & Codes Annotated by LexisNexis®
Copyright © 2015 Matthew Bender & Company, Inc.
a member of the LexisNexis Group. All rights reserved.
          TAB 2
Tex. Prop. Code § 209.001 et. seq.
                            Tex. Prop. Code § 209.001
 This document is current through the 2015 regular session, 84th Legislature,
 S.B. 45, S.B. 293 (ch. 2), S.B. 415(ch. 15), S.B. 459, S.B. 529 (ch. 37), S.B.
 835 (ch. 6), S.B. 901 (ch. 54), S.B. 903 (ch. 3), S.B. 1749 (ch. 29), and S.B.
                                  1985 (ch. 4).

Texas Statutes & Codes Annotated by LexisNexis® > Property Code > Title 11 Restrictive
Covenants > Chapter 209 Texas Residential Property Owners Protection Act

Sec. 209.001. Short Title.
  This chapter may be cited as the Texas Residential Property Owners Protection
  Act.

History

Enacted by Acts 2001, 77th Leg., ch. 926 (S.B. 507), § 1, effective January 1,
2002.

Texas Statutes & Codes Annotated by LexisNexis®
Copyright © 2015 Matthew Bender & Company, Inc.
a member of the LexisNexis Group. All rights reserved.
 TAB 3
Trial Court Order
