ACCEPTED
03-17-00849-CV
21317505
THIRD COURT OF APPEALS
AUSTIN, TEXAS
12/15/2017 10:56 AM
JEFFREY D. KYLE
CLERK
No. 03-17-00849-CV
FILED IN
3rd COURT OF APPEALS
In The Court of Appeals for the Third AUSTIN, TEXAS
District of Texas at Austin 12/15/2017 10:56:34 AM
JEFFREY D. KYLE
Clerk
In re Richard W. Jackson and Lisa C. Jackson,
Relators.
From the County Court at Law No. 1, Travis County, Texas
Trial Court Cause No. C-1-CV-17-001833
Emergency Motion to Stay (1) Trial And (2) Trial
Court Order Dissolving Temporary Injunction
TO THE HONORABLE COURT:
Pursuant to Rule 52.10 of the Texas Rules of Appellate
Procedure, Relators ask the Court to stay either or both (1) trial,
and (2) an order of the trial court dissolving a temporary
injunction where the real parties in interest obtained that order
without any evidentiary showing.
This motion is filed contemporaneously with the filing of a
petition for writ of mandamus and an interlocutory accelerated
appeal. All concern the same subject matter – the trial court’s
dissolving of a temporary injunction absent any evidentiary
showing of a change of circumstances. The real parties in interest
circumvented their failure to appeal a temporary injunction
entered against them in March 2017 by getting the temporary
injunction dissolved many months later, after the trial court
reversed itself on the law.
FACTS
The Jacksons sued to stop Ramsey and Cox from recording
any amendments to subdivision restrictive covenants1 unless
Ramsey and Cox (1) sent prior notice of any proposed amendment
to all owners and (2) obtained a recommendation from the
subdivision’s architectural committee. Following an evidentiary
hearing, the trial court granted the Jacksons’ motion for a
temporary injunction on March 3, 2017. 2 Ramsey and Cox did not
appeal the order granting the temporary injunction.
Ramsey and Cox have counterclaimed for wrongful injunction
based on the trial court’s grant of the relators’ motion for same. 3
On December 4, 2017, four days before the pretrial conference
ahead of the December 11 trial, Ramsey and Cox filed a motion to
1 App. E (Plaintiffs’ Exhibit 1 thereto).
2 App. A.
3 App. F.
2
dissolve the injunction. 4 The sole basis for their motion was that
the trial court reversed its interpretation of the restrictive
covenants in an interlocutory summary judgment order. At the
hearing on the motion to dissolve the injunction on December 8,
Ramsey and Cox offered no evidence in support of their motion.
The trial court granted the motion. 5 The trial setting was then
passed by the parties owing to the unlikelihood of the case being
reached.
On December 11, 2017, Ramsey and Cox recorded in the
Official Records of Travis County an amendment to the restrictive
covenants. 6 They had not notified all owners of the voting on the
amendment in early 2017 and never obtained any recommendation
from the subdivision’s architectural committee.7
The deed restriction they relied upon in filing their
amendment requires recordation of their amendment by March 15,
2017 (a ten-year anniversary date for recording amendments voted
upon by a majority of owners). 8 Nevertheless, in addition to being
filed on December 11, 2017, some of the signature pages show
4 App. B.
5 App. C.
6 Tab D.
7 Tab C (containing findings of fact); Tab E (transcript of injunction hearing).
8 Tab E (Plaintiffs’ Exhibit 1, § 1.4).
3
purported owner ratification as late as November and December,
2017.9
On December 13, 2017, the Jacksons noticed an interlocutory
accelerated appeal of the order dissolving the temporary
injunction. No. 03-17-00846-CV.
ARGUMENT
Stay of the Order Dissolving Injunction Is Needed
Once freed from the temporary injunction, Ramsey and Cox
commenced recordation of written instruments and can continue to
do so. Not only did their December 11 instrument get recorded
many months after the deed restrictions required its recordation,
but it included signatures from November and December 2017
declaring themselves retroactively effective as of March 15, 2017.
Ramsey and Cox are plainly willing to record suspect instruments.
The instrument recorded December 11, 2017, would, if
effective, bar rentals for durations of less than 90 days.
Recordation of the instrument threatens the relators with claims
for breach of restrictive covenant for rental contracts already into
under the protection of the temporary injunction, as well as for
9 Tab D (signature pages).
4
rentals relators could have entered into free of any express
restriction had the injunction remained in force through trial.
The relators’ lawsuit seeks a declaration that all recorded
amendments require a recommendation from the architectural
committee at a minimum, just as the deed restrictions say. 10 There
is no dispute in this case that Ramsey and Cox obtained no such
recommendation for any amendment of any kind to date. While the
relators’ property rights have been affected already with
recordation of the amendment on December 11, it is vital that they
not be harmed further with any additional recorded instruments
while this Court considers the mandamus petition and
interlocutory appeal of the order dissolving the injunction.
The relators may seek, at a later time, relief in this Court or
the trial court should the real parties in interest seek to enforce
the newly-recorded instrument, which was recorded improperly
based on an order which constituted an abuse of discretion by the
trial court.
10 Tab D (Plaintiffs’ Exhibit 1, § IX).
5
Stay of Trial Is Warranted
Ramsey and Cox have asserted a claim in the underlying suit
for wrongful injunction. While the pending mandamus and appeal
proceedings cannot resolve the merits of that claim, trial should
not proceed while the merits of the order dissolving the injunction
are pending. That order, if still effective as of trial, could lend
support for the wrongful injunction claim. Trial should not proceed
until the mandamus and appeal are resolved.
Furthermore, Relators need to know whether to seek an
shortened briefing schedule. Denial of this request to stay the trial
would necessitate their seeking expedited briefing in this Court.
THE REQUESTED RELIEF IS OPPOSED
Counsel for the relators has conferred with counsel for the
real parties in interest, and this emergency request for a stay is
opposed.
6
PRAYER FOR RELIEF
This Court should stay the trial court’s December 8, 2017
order dissolving the temporary injunction until the merits of the
mandamus petition and interlocutory appeal challenging that
order are decided.
Respectfully submitted,
/s/ J. Patrick Sutton
J. Patrick Sutton
Texas Bar No. 24058143
1706 W. 10th Street
Austin Texas 78703
Tel. (512) 417-5903
Fax. (512) 355-4155
jpatricksutton@
jpatricksuttonlaw.com
Attorney for Relator
CERTIFICATE OF SERVICE
I certify that on December 15, a true and correct copy of this
AMENDED petition was served by efiling on:
Michael L. Navarre
Beatty Bangle Strama P.C.
400 West 15th Street, Suite 1450
Austin, Texas 78701
Phone: 512.879.5050 / Fax: 512.879.5040
mnavarre@bbsfirm.com
/s/ J. Patrick Sutton
Attorney for Relator
7
CERTIFICATE OF SERVICE
I certify that on December 15, 2017, undersigned counsel for
Richard W. and Lisa C. Jackson conferred with counsel for Janice
Cox and Helen Ramsey, concerning this motion, and the relief
requested herein is opposed.
/s/ J. Patrick Sutton
Attorney for Relator
CERTIFICATE OF COMPLIANCE
This document complies with the typeface requirements of Tex. R.
App. P. 9.4(e) because it has been prepared in Century Schoolbook
14-point for text and 12-point for footnotes. Spacing is expanded by
.6 point for clarity. This document contains 745 words, excluding
any parts exempted by Tex. R. App. P. 9.4(i)(1).
/s/ J. Patrick Sutton
Attorney for Relator
8
No. 03-17-00849-CV
In The Court of Appeals for the Third
District of Texas at Austin
In re Richard W. Jackson and Lisa C. Jackson,
Relators.
From the County Court at Law No. 1, Travis County, Texas
Trial Court Cause No. C-1-CV-17-001833
APPENDIX TO PETITION FOR WRIT OF MANDAMUS
Order granting Defendants’ motion to dissolve TI Tab A
Defendants’ Motion to Dissolve TI Tab B
Order granting temporary injunction Tab C
Recorded Amendment (with signature pages) Tab D
Transcript of March 9, 2017 injunction hearing Tab E
Live Counterclaim of Real Parties in Interest Tab F
Tab A
Tab B
Filed: 12/4/2017 10:48 PM
Dana DeBeauvoir
Travis County Clerk
CAUSE NO. C-1-CV-17-001833 C-1-CV-17-001833
Kylie Uhlaender
RICHARD W. JACKSON, § IN THE COUNTY COURT
LISA C. JACKSON, and §
KATHLEEN WOODALL, §
Plaintiffs, § AT LAW NUMBER TWO OF
vs. §
§
JANICE COX and HELEN RAMSEY, §
Defendants. § TRAVIS COUNTY, TEXAS
DEFENDANTS’ MOTION TO DISSOLVE THE TEMPORARY INJUNCTION
Defendants and Counter-Plaintiffs file their Motion To Dissolve The Temporary
Injunction, and would respectfully show the court the following:
I. EXECUTIVE SUMMARY
Background: On February 24, 2017, Plaintiffs sued Ms. Cox and Ms. Ramsey to prevent them
from following Section 4 of Article I of the 1972 Deed Restrictions to prohibit rentals for less than
ninety (90) days. Plaintiffs’ claims were for (1) a declaratory judgment that a notice and ACC
approval requirement in Article IX of the 1972 Deed Restrictions could be copied/pasted into
Section 4 of Article I of the 1972 Deed Restrictions and (2) breach of contract based on this same
rewriting of the 1972 Deed Restrictions. Plaintiffs moved for a temporary restraining order and a
subsequent temporary injunction, which the Court granted.
Problem: On November 17, the Court ruled against Plaintiffs on their sole basis for the temporary
injunction. The Court rejected Plaintiffs’ interpretation of the 1972 Deed Restrictions and granted
Defendants’ Motion for Partial Summary Judgment As To Claims And Counterclaims Concerning
Section 4 Of Article I Of The Restrictive Covenants. Furthermore, Plaintiffs previously dropped
their breach of contract claim that was based on their same faulty contract interpretation.
Relief: Defendants respectfully request that the Court grant this Motion, dissolve the temporary
injunction, award Defendants the bond, and grant further relief.
II. ARGUMENT AND AUTHORITIES
A. The Sole Basis For Plaintiffs’ Temporary Injunction Was Their Faulty Contract
Interpretation.
On February 24, 2017, Plaintiffs sued Ms. Cox and Ms. Ramsey. Their sole claim for
declaratory judgment was the following: 1
“Plaintiffs seek a declaration that 30 days’ notice to all owners of proposed
amendments and the prior recommendation of the ACC are required before any
amendment may be adopted and recorded.”
As set forth in Plaintiffs’ lawsuit, these requirements are in Article IX of the 1972 Deed
Restrictions. 2 These requirements are not in Section 4 of Article I of the 1972 Deed Restrictions.
Plaintiffs’ breach of contract claim was based on Plaintiffs’ same faulty interpretation of the 1972
Deed Restrictions. 3 Although Plaintiffs amended their claim twice before the temporary injunction
hearing, these claims remained the same and Plaintiffs did not add any new claims. 4
In his opening argument, Plaintiffs’ counsel made it clear that the sole basis for Plaintiffs’
request for a temporary injunction was their faulty interpretation of the 1972 Deed Restrictions: 5
“We will show and will also argue that there are certain deeds restrictions in a
subdivision from 1972 and that those deed restrictions do not allow any amendment
to those restrictions without two specific things occurring.
One, written notice to all owners 30 days in advance of the adoption of the
amendment. Two, a quote “recommendation” by an entity called the architectural
control authority.”
Subsequently, the parties filed competing motions for partial summary judgment concerning the
proper interpretation of the 1972 Restrictions. The Court recently ruled in favor of Defendants
and granted partial summary judgment against Plaintiffs’ claims.
1
Plaintiffs’ Original Petition at ¶ 25.
2
Id. at ¶ 13.
3
Id. at ¶ 26-29.
4
Plaintiffs’ First Amended Petition at ¶ 25; 26-29; Plaintiffs’ Second Amended Petition at ¶ 25; 26-29.
5
Transcript of March 9, 2017 Temporary Injunction Hearing at 6-7.
2
B. The Court Rejected The Sole Basis For Plaintiffs’ Temporary Injunction And
Granted Defendants’ Motion For Partial Summary Judgment Against Plaintiffs’
Claims.
On October 12, 2017, Defendants filed their Motion For Partial Summary Judgment As To
Claims And Counterclaims Concerning Section 4 Of Article I Of The Restrictive Covenants
(“Defendants’ MPSJ”). As set forth in the Motion, Defendants sought a partial summary judgment
as to the claims that were the basis for Plaintiffs’ temporary injunction: 6
This Motion for Partial Summary Judgment covers Plaintiffs’ claims for (1)
declaratory judgment that “30 days’ notice to all owners of proposed
amendments and the prior recommendation of the ACC are required before
any amendment may be adopted and recorded” and (2) breach or attempted
breach of the Restrictive Covenants. Defendants also move for summary
judgment on their declaratory judgment claim that the requirements of notice and
prior recommendation of the Architectural Control Authority in Article IX are not
copied/pasted into Section 4 of Article I of the Restrictive Covenants.
On the other hand, Plaintiffs filed their Renewed Cross-Motion for Partial Summary Judgment
Concerning Procedure for Amending Restrictive Covenants (“Plaintiffs’ Cross-MPSJ”).
Plaintiffs’ Cross-MPSJ was a mirror-image of Defendants’ MPSJ and sought the opposite
interpretation of the 1972 Deed Restrictions.
On November 17, 2017, the Court issued its rulings. Importantly, the Court granted
Defendants’ MPSJ as to this contract interpretation issue: 7
“ORDERED, ADJUDGED, AND DECREED that Defendants’ Motion for Partial
Summary Judgment as to Claims and Counterclaims Concerning Section 4 of
Article I of the Restrictive Covenants is GRANTED.”
The Court similarly denied Plaintiffs’ Cross-MPSJ. By its orders, the Court disposed of Plaintiffs’
claims in favor of Defendants.
6
Defendants’ MPSJ at 3 (emphasis added).
7
Order on Defendants’ Motions for Summary Judgment at 2 (emphasis in original).
3
C. The Court Should Dissolve The Injunction And Grant Relief To Defendants.
By its Orders, the Court also eliminated the sole basis of Plaintiffs’ temporary injunction.
There is no basis for Plaintiffs’ temporary injunction. Therefore, pursuant to Texas law, the Court
should dissolve the temporary injunction. Murphy v. McDaniel, 20 S.W.3d 873, 878 (Tex. App.—
Dallas 2000, no pet.) (explaining the circumstance that result in the dissolution of a temporary
injunction). Furthermore, the Court should award the $10,000 bond to Defendants. Energy
Transfer Fuel, L.P. v. Bryan, 322 S.W.3d 409, 413-14 (Tex. App.—Tyler 2010, no pet.) (citing
DeSantis v. Wackenhut Corp. 793 S.W.2d 670, 685 (Tex. 1990)). Finally, if the Court deems it
necessary, Defendants request equitable or other relief in the form of time to file the change to the
1972 Restrictions or some other form to cure any harm caused to Defendants.
III. CONCLUSION
WHEREFORE, PREMISES CONSIDERED, Defendants respectfully request that the
Court grant this Motion, dissolve the temporary injunction, award Defendants the bond, and if the
Court deems it necessary, Defendants request equitable or other relief in the form of time to file
the change to the 1972 Restrictions or some other form to cure any harm caused to Defendants
grant further relief. Defendants also request such other relief as the Court deems proper.
Respectfully submitted,
/s/ Michael L. Navarre
Michael L. Navarre
State Bar No. 00792711
BEATTY BANGLE STRAMA, PC
400 West 15th Street, Suite 1450
Austin, Texas 78701
(512) 879-5050 Telephone
(512) 879-5040 Facsimile
mnavarre@bbsfirm.com
ATTORNEYS FOR DEFENDANTS
4
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing instrument was electronically
served on counsel of record by electronic transmission on this 4th day of December, 2017:
James Patrick Sutton – via jpatricksutton@jpatricksuttonlaw.com
The Law Office of J. Patrick Sutton
1706 W. 10th St.
Austin, Texas 78701
Mr. David M. Gottfried – via david.gottfried@thegottfriedfirm.com
The Gottfried Firm
West Sixth Place
1505 West Sixth Street
Austin, Texas 78703
/s/ Michael L. Navarre
Michael L. Navarre
5
Tab C
Tab D
Tab E
1
1 REPORTER'S RECORD
2 VOLUME 1 OF 1 VOLUMES
3 TRIAL COURT CAUSE NO. C-1-CV-17-001833
4 RICHARD W. JACKSON, ) IN THE COUNTY COURT
LISA C. JACKSON, AND )
5 KATHLEEN A. KOLB )
WOODALL )
6 )
)
7 VS. ) AT LAW NO. 1
)
8 )
JANICE COX, HELEN )
9 RAMSEY, POINT VENTURE )
NEIGHBORS FOR STR )
10 REFORM ) TRAVIS COUNTY, TEXAS
11
12 ********************************************************
13 TEMPORARY INJUNCTION
14 ********************************************************
15
16 On the 9th day of March, 2017, the following
17 proceedings came on to be heard in the above-entitled
18 and numbered cause before the Honorable Todd T. Wong,
19 Judge presiding, held in Austin, Travis County, Texas:
20 Proceedings reported by machine shorthand.
21
22
23
24
25
2
1 A P P E A R A N C E S
2
3 ATTORNEYS FOR THE PLAINTIFFS:
4 Mr. James Patrick Sutton
SBOT NO. 24058143
5 THE LAW OFFICE OF J. PATRICK SUTTON
1706 West 10th Street
6 Austin, Texas 78703
Phone: 512-417-5903
7 - AND -
Mr. David M. Gottfried
8 THE GOTTFRIED FIRM
SBOT NO. 08231200
9 West Sixth Place
1505 West Sixth Street
10 Austin, Texas 78703
Phone: 512-494-1481
11
12
13 ATTORNEY FOR THE DEFENDANTS:
14 Mr. William E. 'Bill' Sterling
SBOT NO. 19175200
15 WILSON, STERLING & RUSSELL
9951 Anderson Mill Road, Suite 200
16 Austin, Texas 78750
Phone: 512-258-2244
17
18
19
20
21
22
23
24
25
3
1 INDEX
2 VOLUME 1
3 Temporary Injunction
4 March 9, 2017
5 PAGE VOL.
6 Announcements . . . . . . . . . . . . . . . . .5 1
7 Opening Statement by Mr. Sutton . . . . . . . .6 1
8 Opening Statement by Mr. Sterling . . . . . . .7 1
9 Plaintiff's
Witnesses Direct Cross Voir Dire Vol.
10
Janice Cox
11 By Mr. Gottfried 16 1
By Mr. Sterling 23 1
12 By Mr. Gottfried 29 1
By Mr. Sterling 29 1
13
Helen Ramsey
14 By Mr. Gottfried 30 1
By Mr. Sterling 33 1
15
Kathleen Woodall
16 By Mr. Gottfried 34 1
By Mr. Sterling 38 1
17 By Mr. Gottfried 41 1
18
19 Closing Argument by Mr. Sutton . . . . . . . . 44 1
20 Closing Argument by Mr. Sterling . . . . . . . 52 1
21 Closing Argument by Mr. Sutton . . . . . . . . 59 1
22 Closing Argument by Mr. Sterling . . . . . . . 61 1
23 Court's Ruling . . . . . . . . . . . . . . . . 67 1
24 Adjournment . . . . . . . . . . . . . . . . . .69 1
25 Court Reporter's Certificate . . . . . . . . . 70 1
4
1 ALPHABETICAL INDEX OF WITNESSES
2 Direct Cross Voir Dire Vol.
3 COX, JANICE
By Mr. Gottfried 16 1
4 By Mr. Sterling 23 1
By Mr. Gottfried 29 1
5 By Mr. Sterling 29 1
6 INDEX - VOLUME 1 CONT.
7 ALPHABETICAL INDEX OF WITNESSES
8 Direct Cross Voir Dire Vol.
9 RAMSEY, HELEN
By Mr. Gottfried 30 1
10 By Mr. Sterling 33 1
11 WOODALL, KATHLEEN
By Mr. Gottfried 34 1
12 By Mr. Sterling 38 1
By Mr. Gottfried 41 1
13
14
15 EXHIBITS OFFERED BY THE PLAINTIFF
16 EXHIBIT DESCRIPTION OFFER ADMIT VOL.
17 1 Point Venture Section Three-1 13 14 1
Plat Record
18
2 General Provisions 14 14 1
19
3 Amendment to Restrictions 15 15 1
20
4 Notes 21 21 1
21
22 EXHIBITS OFFERED BY THE PLAINTIFF
23 EXHIBIT DESCRIPTION OFFER ADMIT VOL.
24 1 VRBO web listing 27 28 1
25
5
1 P R O C E E D I N G S
2 March 9, 2017
3 THE COURT: C-1-CV-17-001833, Richard
4 Jackson and Lisa Jackson versus Janice Cox, Helen
5 Ramsey, Point Venture Neighbors.
6 Counsel, if you would go ahead and make
7 your appearances for record.
8 MR. SUTTON: Judge, Patrick Sutton and
9 David M. Gottfried for all plaintiffs.
10 THE COURT: All right. Thank you.
11 MR. STERLING: William Sterling, Jr. for
12 defendants, Janice Cox and Helen Ramsey. In reality,
13 there is no incorporated or association.
14 THE COURT: Okay. Very good. All right.
15 Thank you very much.
16 All right. I read the original -- well, I
17 guess the third amended petition that was filed. I read
18 the TRO. Pulled some cases.
19 You-all have anything you want me to look
20 at?
21 MR. STERLING: Your Honor, I did file an
22 answer, and I sent a copy to Court 2's staff attorney
23 and I don't know whether that's...
24 MR. GOTTFRIED: If I may approach, Your
25 Honor?
6
1 THE COURT: Sure. All right.
2 So we're here just on the temporary
3 injunction. This is not a permanent injunction. It's
4 no final hearing on anything. So just to remind
5 counsel, you keep that in mind as you proceed today.
6 All right. Well, plaintiffs, may proceed.
7 MR. SUTTON: Judge, what I'd like to do is
8 just preview for you what the evidence will show.
9 THE COURT: That would be great. If you
10 could do that, then I'll let the defendant do the same.
11 OPENING BY PLAINTIFF
12 MR. SUTTON: Thank you, Judge.
13 First, we will show and will also argue
14 that there are certain deeds restrictions in a
15 subdivision from 1972 and that those deed restrictions
16 do not allow any amendment to those restrictions without
17 two specific things occurring.
18 One, written notice to all owners 30 days
19 in advance of the adoption of the amendment. Two, a,
20 quote, "recommendation" by an entity called the
21 architectural control authority.
22 We will then show, one, that the
23 defendants failed to meet those two requirements, that
24 there is an architectural control authority, and that
25 the defendants have circulated an amendment which would
7
1 restrict the rights of property owners, actually bar
2 property owner's right to rent for short terms.
3 We will have seven witnesses who will talk
4 about the lack of notice, the existence of an
5 architectural control authority, and then, finally,
6 Judge, we'll show that all that deed restrictions
7 provide that all that is required for a temporary
8 injunction in this case is a showing of a breach or
9 attempted breach, and that the deed restrictions
10 specifically remove the requirement of irreparable
11 injury or that money damages are not an adequate remedy.
12 Thank you, Judge.
13 THE COURT: Thank you.
14 Counsel.
15 OPENING BY DEFENDANT
16 MR. STERLING: Your Honor, we -- they're
17 going to be introducing a certified copy of 1972
18 restrictions, and we don't have any quarrel with that
19 particular document as it's going to be presented.
20 We do disagree with counsel as to whether
21 or not there is a requirement for 30 days notice or a
22 requirement for having ACA approval when it comes to an
23 attempted change of the restrictive covenants under a
24 particular portion of the restrictive covenants
25 themselves.
8
1 And we'll call Your Honor's attention to
2 Section -- I believe it's Section 1.
3 THE COURT: It's 1.4, isn't it?
4 MR. STERLING: 1.4, yes.
5 And that particular section allows for a
6 majority of the lot owners to change the 1972
7 restrictions by getting a document signed by them,
8 proper manner of recording it in the deed records, and
9 then so recording. And that's the only real
10 requirements that are there.
11 We're going to be arguing that, in
12 essence, the provision that the other side has been
13 referred to is not applicable to that particular
14 provision. It may be under a section having to do with
15 label amendments. But right on that same page is going
16 to be a section -- I think it's Section 11 of the
17 document that basically says that -- it's on Section 11
18 -- talk about captions. And captions basically say
19 forget the captions. They don't mean anything. You can
20 look at it as if they were never there in terms of doing
21 that.
22 THE COURT: But you just told me -- you
23 referred to me 9 which says Amendments, but in the body
24 of that provision, it talks about any covenants that may
25 be annulled, amended, or modified. So it's not just
9
1 amendments either, right?
2 MR. STERLING: Well, it's -- I think it's
3 referring only to the particular form by which they go
4 about doing it using this particular provision. If you
5 want to change any time during the year, at any time you
6 have to go through the ACA and give your 30 days notice.
7 But if you're going through this other provision, the
8 provision that allows you to change it but it doesn't
9 become effective until the next period of duration, if
10 you do it that way, it's a totally different system.
11 In other words, the changes where you're
12 using the ACA, you're going to be having -- having to
13 have notice who's going to go voting and all that kind
14 of stuff. There's no voting when it comes to the actual
15 use of this majority getting a changing instrument and
16 signing it and recording it. You're voting by signing
17 on the instrument or not signing the instrument.
18 THE COURT: I see your argument.
19 MR. STERLING: So basically that's what
20 I'm saying, it's a whole different thing.
21 And so what I wanted to state is that
22 that's the crux of what the problem is between my
23 client -- my clients and theirs is the interpretation of
24 those two particular provisions. They want to basically
25 say that their provision overrides and makes mine
10
1 meaningless, essentially.
2 THE COURT: They're not saying they can
3 coalesce together.
4 MR. STERLING: Well, they may be trying to
5 say that, but I don't see how they can really coalesce
6 together. How do you do a 30 days in advance of when
7 you're picking up individual signatures, you know, as
8 you go, and it may take you the whole 10-year period to
9 get them all signed up?
10 It's just not the same thing. You're not
11 doing a vote-type situation.
12 But in any case, what I was getting at is
13 that that's the crux of it. And what they're trying to
14 do is add a temporary injunction to kill our current
15 effort to try to change the restrictive covenants to
16 disallow, you, know, these short-term rentals. And
17 they're trying to, basically, use that -- use this
18 temporary injunction in order to try to prevent us from
19 getting there. Essentially getting there during this
20 period.
21 THE COURT: Let me stop you there. From
22 my reading, they're enjoining you from going through the
23 process from not engaging in the process that's set up
24 under the restriction, under this document. And I
25 understand what you're saying is that they're preventing
11
1 you from doing the -- using provision or paragraph 4.
2 You're trying to go through paragraph 4.
3 MR. STERLING: Right.
4 THE COURT: And they're saying, no, you've
5 got to go through 9.
6 MR. STERLING: Right.
7 THE COURT: Is that about it?
8 MR. STERLING: That's about it.
9 THE COURT: Okay. All right.
10 MR. STERLING: But the one thing I wanted
11 to get across is that if we don't make -- essentially
12 the way this -- our method works is that the successive
13 periods essentially provides for duration of these
14 original restrictive covenants starting out with a
15 35-year period then it goes succeeding 10-year period,
16 et cetera. We're at the end of a 10-year period.
17 THE COURT: You're at the end of the
18 second 10-year period.
19 MR. STERLING: Right. And if we are not
20 successful in getting signed up a majority and recorded
21 all those done by March 15th, we will be prevented from
22 this taking effect until the next period beyond that.
23 Not, you know --
24 THE COURT: It's not March 27th? It's
25 March 15th?
12
1 MR. STERLING: Well, March 27th. That's a
2 good question because March 15th is when it was signed,
3 the original.
4 THE COURT: Oh, I see.
5 MR. STERLING: But it wasn't recorded
6 until 19 or till March 27th. Whichever date, the point
7 is if we don't get it done certainly within one of those
8 two days, we could end up in a situation where it would
9 not take effect during the next 10-year period but the
10 one after that is what would happen. So, in effect,
11 we'll be stopping this thing from being effective for a
12 full 10 years using this method.
13 THE COURT: All right.
14 MR. STERLING: And that will cause it to
15 happen by just doing a temporary injunction.
16 THE COURT: I see. You could read it that
17 way. You might read it another way too.
18 MR. STERLING: Well, I think if you can
19 figure out a way for us to get it effective otherwise, I
20 would be happy to do that.
21 THE COURT: I'm not going to engage in
22 that with you, but I think there may be a creative way
23 to do something there but, all right. Very good.
24 MR. STERLING: All right. I think that
25 basically --
13
1 THE COURT: Is that it?
2 MR. STERLING: -- gives us an idea what
3 our situation and our position is.
4 THE COURT: Fair enough. All right.
5 Thank you both.
6 Counsel for plaintiff, you-all may
7 proceed.
8 MR. GOTTFRIED: Good morning, Your Honor.
9 Being mindful of the fact this is a
10 temporary injunction hearing not a permanent injunction
11 hearing, I think we may be able to cut through some of
12 the formalities by stipulating as to a couple of
13 documents.
14 THE COURT: Fantastic.
15 MR. GOTTFRIED: I visited with
16 Mr. Sterling and he's graciously agreed that we can mark
17 this plat as Plaintiff's Exhibit 1.
18 MR. STERLING: I have no objection.
19 THE COURT: So he has no objection you
20 admitting it into evidence.
21 MR. Gottfried: May I approach?
22 THE COURT: Yes, of course. Thank you.
23 MR. GOTTFRIED: Your Honor, we would move
24 for the admission of Plaintiff's Exhibit Number 1.
25 (Plaintiff's Exhibit No. 1 offered.)
14
1 THE COURT: All right. Thank you.
2 Plaintiff's Exhibit 1 admitted.
3 (Plaintiff's Exhibit No. 1 admitted.)
4 MR. GOTTFRIED: Your Honor, that's just to
5 give you some perspective of where this subdivision is.
6 It's on Lake Travis. And the folks that are in the
7 courtroom today are the waterfront section of Lake
8 Travis.
9 THE COURT: Okay.
10 MR. GOTTFRIED: May I approach, Your
11 Honor?
12 THE COURT: Yes. Thank you.
13 MR. GOTTFRIED: Mr. Sterling and I have
14 also stipulated to the deed restrictions, which I've
15 just provided the Court as Plaintiff's Exhibit Number 2
16 and move for the admission of Plaintiff's 2.
17 (Plaintiff's Exhibit No. 2 offered.)
18 THE COURT: All right. Thank you.
19 MR. STERLING: I have no objection, Your
20 Honor.
21 THE COURT: All right. Thank you.
22 Plaintiff's Exhibit 2 is admitted.
23 You-all don't need to ask permission to
24 come up and show me stuff. It's fine.
25 (Plaintiff's Exhibit No. 2 admitted.)
15
1 MR. GOTTFRIED: Your Honor, I have handed
2 the Court Plaintiff's Exhibit Number 3, which is the
3 proposed amendment. And we move for the admission of
4 Plaintiff's Exhibit 3.
5 (Plaintiff's Exhibit No. 3 offered.)
6 MR. STERLING: May I see it?
7 MR. GOTTFRIED: Yes.
8 MR. STERLING: I just want to make sure.
9 I have no objection, Your Honor.
10 THE COURT: All right. Thank you.
11 Plaintiff's Exhibit 3 is admitted.
12 (Plaintiff's Exhibit No. 3 admitted.)
13 MR. GOTTFRIED: And, Your Honor, I'm also
14 hoping that we can stipulate that notice to all of the
15 residents of the proposed amendment was not given. It's
16 actually a judicial admission in paragraph 12 of
17 defendant's answer and counter-claim where they state,
18 defendants admit that the facts set forth in paragraph
19 20 of the plaintiff's petition are true and correct,
20 same and except all lot owners but six were given at
21 least 30 days notice in writing of the proposed
22 amendment and the web sites were up for at least 30 days
23 in writing showing the proposed amendment.
24 And they say, on information and belief,
25 those six received 30 days notice in writing by reading
16
1 from the web sites, which is not the provision of
2 written notice as required under the deed restriction.
3 MR. STERLING: Your Honor, I'll stand by
4 what he read.
5 THE COURT: Okay. Well, then, the Court
6 will note and make part of the record that provision 12
7 in defendant's original answer is admitted to by the
8 defendant's counsel.
9 MR. STERLING: With those exceptions.
10 THE COURT: With the exceptions that are
11 noted.
12 MR. Gottfried: Your Honor, we would call
13 Janice Cox.
14 THE COURT: Ms. Cox.
15 JANICE COX,
16 having been first duly sworn, testified as follows:
17 DIRECT EXAMINATION
18 BY MR. GOTTFRIED:
19 Q. Good morning, Ms. Cox.
20 A. Good morning.
21 Q. Could you please state your full name for the
22 record?
23 A. Janice K. Cox.
24 Q. And what is your home address?
25 A. 18940 Peckham Drive.
17
1 Q. And are you a resident of Point Venture Section
2 Three-1?
3 A. Yes, sir.
4 Q. And you oppose short-term rentals in your
5 subdivision; is that correct?
6 A. Yes.
7 Q. And you've authored a web site that you put up
8 entitled Point Venture Neighbors; is that correct?
9 A. No.
10 Q. Have you put together a web site as part of
11 your effort to ban short-term rentals in the
12 subdivision?
13 A. Yes.
14 Q. What is the name of that web site?
15 A. There's two web sites. SaveSection3-1.org.
16 There's -- it's sort of a joint web site,
17 pvstrreform.com.
18 Q. And are you the owner of both of those web
19 sites?
20 A. Yes.
21 Q. Who were the other neighbors that are part of
22 that organization that is trying to ban short-term
23 rentals in the subdivision?
24 A. I can't go through the entire list. I don't
25 have it in front of me. Pepper would be one.
18
1 Q. I'm sorry?
2 A. Helen Ramsey would be one.
3 Q. Who is Helen Ramsey?
4 A. She lives with me.
5 Q. Are there more than three people that are part
6 of the, quote, neighbors --
7 A. No.
8 Q. No?
9 A. No.
10 Q. So you can only name yourself and Ms. Ramsey?
11 A. Correct. Yes.
12 Q. And I'd like to refer you to Plaintiff's
13 Exhibit Number 3, which I believe -- is that the
14 amendment to the deed restrictions that you've been
15 circulating within the subdivision?
16 A. The back page is blank but, yes. Page 1 and 2,
17 yes.
18 Q. What do you mean by "the back page is blank"?
19 A. If it was for a specific lot, the lot would be
20 filled in and the name would be filled in.
21 Q. Oh, okay. What I'm really asking, is this the
22 form of the amendment that you're asking your neighbors
23 to sign?
24 A. Yes.
25 Q. Okay. And under this proposed amendment,
19
1 short-term rentals of less than 90 days would be
2 forbidden in the subdivision; is that correct?
3 A. Yes.
4 Q. Who is the developer of the subdivision
5 currently? Is there one?
6 A. I would believe the -- I guess it was the
7 Mitchell Group originally, and then that passes down to
8 the ACC or POA. Don't know.
9 Q. To your knowledge, do any -- does any developer
10 still own any lots within the subdivision?
11 A. I can't answer that yes or no.
12 Q. You simply don't know?
13 A. I don't know.
14 Q. Did you provide 30 days written notice to all
15 of the members of the subdivision of your proposed
16 amendment to the deed restrictions, which are
17 Plaintiff's Exhibit Number 3?
18 A. All but -- all but seven.
19 Q. And how did you pick the seven that you were
20 not going to provide notice to?
21 A. They own short-term rentals.
22 Q. So is it fair to say that that was a concerted
23 effort by you to exclude them from the dialogue
24 regarding the amendment that you were proposing for the
25 subdivision?
20
1 A. One, we didn't think they would sign it. Two,
2 we had some elderly people in the subdivision, and we
3 were afraid they -- we were afraid of harassment.
4 Q. And so based on those reasons, you specifically
5 excluded, what was it, six or seven of the residents?
6 A. Seven.
7 MR. GOTTFRIED: May I approach the
8 witness?
9 THE COURT: Yes. Thank you.
10 Q. (BY MR. GOTTFRIED) Ms. Cox, I've handed you
11 what's been marked as Plaintiff's Exhibit Number 4 and
12 ask you if you can identify it?
13 A. What do you want?
14 Q. Can you identify Plaintiff's Exhibit Number 4?
15 A. Yes.
16 Q. What is Plaintiff's Exhibit Number 4?
17 A. The number of mailouts when they were done.
18 Q. Is Exhibit Number 4 a document that you
19 created?
20 A. I believe, yes. I didn't, but I believe Helen
21 Ramsey did.
22 Q. And you were subpoenaed to be here today as a
23 witness, correct?
24 A. Yes.
25 Q. And you produced certain documents pursuant to
21
1 that subpoena; is that correct?
2 A. This was not one of them. This document, I
3 don't believe was on the subpoena.
4 Q. Would you agree with me that that was a
5 document that was produced to me today by your lawyer?
6 A. Yes.
7 MR. GOTTFRIED: Your Honor, we move for
8 the admission of Plaintiff's Exhibit Number 4.
9 (Plaintiff's Exhibit No. 4 offered.)
10 MR. STERLING: I don't really have an
11 objection to it, Your Honor. I would say my client
12 produced certain documents in relationship to the
13 subpoena that was given, and there has been some
14 confusion with her about what that entailed. But I
15 think that qualifies as one of the documents -- as a
16 document that they requested.
17 THE COURT: All right. So no objection.
18 So Plaintiff's Exhibit 4 is admitted.
19 (Plaintiff's Exhibit No. 4 admitted.)
20 Q. (BY MR. GOTTFRIED) And Ms. Cox, there are two
21 Post-it notes on Plaintiff's Exhibit Number 4. Do you
22 see them?
23 A. Uh-huh.
24 Q. Are those your handwriting?
25 A. No, sir.
22
1 Q. Do you recognize the handwriting?
2 A. Yes.
3 Q. Whose handwriting is it?
4 A. Helen Ramsey's.
5 Q. Are you aware -- do you have any personal
6 knowledge of the existence of an architectural control
7 authority within your subdivision?
8 A. Yes. I believe it's a committee.
9 Q. And who are the members of that committee?
10 A. Two that I know of are Stan Retriman (ph) and
11 Cindy Clemmons.
12 Q. What about Eugene Glass, would he be a member?
13 A. I don't know if he is currently, but he has
14 been in the past.
15 Q. Marvin Ruthridge? Are you familiar with --
16 A. I know the name. Don't know if he certainly
17 sits on the ACC.
18 Q. And Greg McConnel?
19 A. Don't recognize the name.
20 Q. But you do have personal knowledge that an
21 architectural control authority does exist and is
22 operating or committee is operating within your
23 subdivision?
24 A. Yes.
25 Q. Did you submit your proposed amendment to that
23
1 architectural control authority before you started
2 circulating it for signatures?
3 A. No.
4 Q. So you would agree with me that since you never
5 submitted it, there was never a recommendation by the
6 architectural control authority that the amendment be
7 adopted by the members; is that correct?
8 A. Yes.
9 MR. Gottfried: We'll pass the witness,
10 Your Honor.
11 THE COURT: All right. Thank you.
12 Counsel.
13 CROSS-EXAMINATION
14 BY MR. STERLING:
15 Q. Ms. Cox, in connection with your living at the
16 -- on the lot, are you the owner of the lot?
17 A. Yes.
18 Q. Is Ms. Ramsey also an owner?
19 A. Yes.
20 Q. So you own it jointly together; is that
21 correct?
22 A. Yes.
23 Q. And in the course of -- how long have you owned
24 it or how long have you actually lived on the lot?
25 A. I believe it's three years.
24
1 Q. And during that period of time -- well, scratch
2 that.
3 Do the Jacksons, the plaintiffs, own any
4 lots nearby?
5 A. Yes.
6 Q. They own one near you?
7 A. Yes.
8 Q. Is it a next door neighbor-type situation?
9 A. Yes.
10 Q. And have you or -- to your personal knowledge,
11 do you know whether they're renting out or leasing the
12 improvements on their lot?
13 A. Yes.
14 Q. Have you seen the renters on the lot?
15 A. Yes.
16 Q. Have the Jacksons used, at least in the past, a
17 manager for the lot or for that lot?
18 A. Yes and no. They use the BRBO at current
19 times.
20 Q. Okay. But did they use this individual in the
21 past?
22 A. Can you clarify "for"?
23 Q. Well, was there -- did they have someone other
24 than Mr. and Mrs. Jackson themselves act as their
25 manager of the rental?
25
1 A. I believe very early on they did. They used
2 the company in Lago.
3 Q. Do they have any on-site managers now?
4 A. They did. I think the neighbor was actually
5 part of the caretaker --
6 Q. Arrangement?
7 A. -- arrangement.
8 Q. And did you ever have any problems with the
9 renters or the managers?
10 A. Yes.
11 MR. GOTTFRIED: Objection, Your Honor.
12 I'm going to object to the relevance. We're here about
13 notice.
14 MR. STERLING: Your Honor, we're not just
15 here about notice. I have an affirmative defense that
16 goes to the invitation of clean hands doctrine which
17 replies to this temporary injunction, and I filed an
18 answer that actually has that in writing. I'm entitled
19 to go into that.
20 THE COURT: I'm going to allow a little
21 bit of leeway here, not a whole lot, just enough to
22 handle this injunction. So you may proceed.
23 Q. (MR. STERLING) Have you had any problems with
24 the use or -- problem with the renters or the managers
25 in connection with the short-term rental being used on
26
1 the lot?
2 A. Yes.
3 Q. Could you describe for us what kind of problems
4 you've had?
5 A. We've had disorderly conduct. We've had lewd
6 profanity. We've had people dancing on the roofs.
7 We've had people trespassing. We've had vandalism.
8 We've had continuing loss of sleep. We've had bongo
9 drums. We've had karaoke music. We've had -- I mean,
10 it's endless.
11 We have people parking in our driveway.
12 We have people turning around in our driveway. We have
13 people trespassing. Just Christmas I was out of town,
14 we have people standing there and drinking beer in our
15 driveway. Their kids are in our -- we can see from our
16 cameras we're being notified. They come over in 10s or
17 15s at a time asking questions. It's been a basic
18 nightmare.
19 Q. Have you had to call the police?
20 A. Yes, sir.
21 Q. And have there been -- have your other
22 neighbors complained about the same activities?
23 A. Yes, sir.
24 Q. Would it be fair to say that the existence of
25 the short-term rental business on the lot has become an
27
1 annoyance or a nuisance in the neighborhood?
2 A. Yes, sir.
3 Q. I'm going to show you what's been marked as
4 Defendant's Exhibit 1.
5 THE COURT: Why don't you go ahead and
6 show it to opposing counsel first. Thank you.
7 Q. (BY MR. STERLING) Let me show you what's been
8 marked as Defendant's Exhibit 1 and ask you is that a
9 printout from a web site service that allows for
10 advertising short-term vacation rentals?
11 A. Yes, sir.
12 Q. And is that -- if you looked at it completely
13 and fairly, is that describing pictures and all the
14 Jackson's property?
15 A. Yes, sir.
16 Q. And does it have a picture of the two of them
17 as the owners?
18 A. Yes, sir.
19 MR. STERLING: We offer Defendant's
20 Exhibit 1.
21 (Defendant's Exhibit No. 1 offered.)
22 MR. GOTTFRIED: Your Honor, we object on
23 the grounds of relevancy. Leasing, even short-term
24 leasing, is permitted under the current restrictions.
25 It's not really an issue in this case what they're using
28
1 their property for.
2 MR. STERLING: Actually, Your Honor, it's
3 not. One of the things that I brought up in my pleading
4 is that there is a section of the restrictive covenants,
5 which is Article or Roman Numeral 4, Section -- or
6 Paragraph 5, which basically prohibits the renting of
7 any improvements on a lot without the prior consent of
8 the architectural control authority.
9 MR. GOTTFRIED: Your Honor, I don't think
10 that that's what it says. I think it says without the
11 authority of the developer and there currently is no
12 developer. And if the defendants are taking the
13 position that the deed restrictions prevent all leasing
14 of any kind for any duration in this subdivision, that's
15 something I'd love to get on the record.
16 THE COURT: Okay. I'm going to allow
17 Defendant's Exhibit 1. It's admitted.
18 (Defendant's Exhibit No. 1 admitted.)
19 THE COURT: I'm going to remind you,
20 gentlemen, that we are here simply on a temporary
21 injunction. I'm not going into the leads of your final
22 hearing on this.
23 I understand you-all wanting to go ahead
24 and get it out. If you-all want free discovery and you
25 want to have a reporter type everything out now, that's
29
1 absolutely fine with me and I'm sure for her. But I'm
2 going to allow Defendant's Exhibit 1. But I'm going to
3 remind you why we're here. All right. Please proceed.
4 MR. STERLING: I'll pass the witness.
5 THE COURT: All right. Thank you.
6 Anything else?
7 REDIRECT EXAMINATION
8 Q. (BY MR. GOTTFRIED) Ms. Cox, is it your
9 position that all leasing of any kind within the
10 subdivision is prohibited by the deed restrictions?
11 A. Yes.
12 MR. GOTTFRIED: We'll pass the witness.
13 RECROSS-EXAMINATION
14 Q. (BY MR. STERLING) Ms. Cox, would it also be
15 your understanding that prohibiting of the renting
16 within the subdivision is subject to the exception by
17 approval of the architectural control authority?
18 A. Yes.
19 MR. GOTTFRIED: Your Honor, I'm going to
20 object to the leading and, actually, it's not what the
21 document says.
22 THE COURT: That's sustained.
23 Q. (BY MR. STERLIING) Ms. Cox, the individual
24 restrictive covenants provides for the developer to
25 basically sign away his rights to an architectural
30
1 control authority; is that correct?
2 MR. GOTTFRIED: Objection; leading.
3 THE COURT: Sustained.
4 MR. STERLING: Pass the witness.
5 MR. GOTTFRIED: Nothing further.
6 THE COURT: All right. You may step down.
7 MR. GOTTFRIED: Your Honor, we would call
8 Helen Ramsey.
9 THE COURT: Ms. Ramsey.
10 HELEN RAMSEY,
11 having been first duly sworn, testified as follows:
12 DIRECT EXAMINATION
13 BY MR. GOTTFRIED:
14 Q. Good morning, Ms. Ramsey.
15 A. Good morning.
16 Q. Could you please state your full name for the
17 record?
18 A. Helen Ramsey, Jr.
19 Q. And where do you reside?
20 A. 18940 Peckham.
21 Q. And do you live there with Janice Cox?
22 A. I do.
23 Q. And so you are a resident of Point Venture
24 Section Three-1; is that correct?
25 A. Three-1 is correct.
31
1 Q. Okay. And you oppose short-term rentals in
2 your subdivision?
3 A. In Section Three-1, correct.
4 Q. Okay. And did you, together with Ms. Cox, put
5 together the web site entitled neighbors -- the Point
6 Venture Neighbors -- what's the name of the web site you
7 and Ms. Cox started?
8 A. Ms. Cox started the web site. I did not. It's
9 pvstrreform.com and savesection3-1.
10 Q. Other than two of you, has anyone else joined
11 in that group of neighbors as you define it in your --
12 in the web site?
13 A. No, sir.
14 Q. So it's just the two of you?
15 A. It's just the two of us.
16 Q. Do you have Plaintiff's Exhibit Number 4 in
17 front of you?
18 A. I do.
19 Q. And the two Post-its on Plaintiff's Exhibit
20 Number 4, are those your handwriting?
21 A. Yes, sir.
22 Q. Could you please read them both loud for the
23 Court?
24 A. I can. Kathy is a member at the Point Venture
25 Renters Association and so are -- as are other STR
32
1 owners in Section Three-1. They obviously were aware of
2 the amendment by 2-3-17. That's the first one.
3 Second one says, didn't send mailout to
4 STR and friends because of history of harassment we have
5 endured and didn't want to waste a stamp.
6 Q. So you were present in the courtroom for
7 Ms. Cox's testimony, correct?
8 A. Correct.
9 Q. And you agree that neither you nor Ms. Cox sent
10 notice to all the members of the subdivision that you
11 were seeking the amendment that is Plaintiff's Exhibit
12 Number 3?
13 A. Correct. Seven were excluded.
14 Q. And those seven that were excluded, that wasn't
15 just inadvertence. They were purposely left off the
16 list of who got the notice, correct?
17 A. That's true. We decided that we did not want
18 to endure -- we wanted to hold off the harassment that
19 -- we didn't want to it escalate.
20 Q. Is it your position that all leasing within the
21 subdivision of any duration is prohibited under the deed
22 restrictions?
23 A. I don't know how to interpret that really. I
24 think the Court needs to interpret that. I don't know.
25 Q. I'm asking for your position.
33
1 A. I don't have a position on it. I don't have a
2 position on it. I'm not sure I can interpret that in
3 the reading of the deed restrictions. I'll leave that
4 to the lawyers and the...
5 Q. Do you oppose leasing of any duration in the
6 subdivision?
7 A. No, sir.
8 MR. GOTTFRIED: Pass the witness, Your
9 Honor.
10 THE COURT: Thank you.
11 CROSS-EXAMINATION
12 BY MR. STERLING:
13 Q. Ms. Ramsey, did you check the controller's
14 office as to whether or not hotel tax is being paid by
15 the Jacksons?
16 MR. GOTTFRIED: Objection, Your Honor.
17 Calls for hearsay. And objection on the grounds of
18 relevance.
19 THE COURT: That's sustained.
20 Q. (BY MR. STERLING) Do you agree with Ms. Cox's
21 characterization of the problems that the short-term
22 rental caused in the neighborhood?
23 A. Yes, sir.
24 Q. Is there any doubt in your mind that this would
25 all end the Jacksons are running a short-term rental
34
1 business on their lot?
2 MR. GOTTFRIED: Your Honor, I object to
3 the relevancy.
4 THE COURT: Overruled.
5 THE WITNESS: No, there's -- no, sir.
6 MR. STERLING: Pass the witness.
7 MR. GOTTFRIED: Nothing further, Your
8 Honor.
9 THE COURT: Thank you, ma'am. You may
10 step down.
11 MR. GOTTFRIED: Your Honor, we would call
12 Kathleen Woodall.
13 THE COURT: Ms. Woodall, come around and
14 let me swear you in.
15 KATHLEEN WOODALL,
16 having been first duly sworn, testified as follows:
17 DIRECT EXAMINATION
18 BY MR. GOTTFRIED:
19 Q. Good morning, Ms. Woodall.
20 A. Hello.
21 Q. Can you please state your full name for the
22 Court?
23 A. Kathleen Kolb Woodall.
24 Q. And what is your address?
25 A. 18920 Peckham Drive.
35
1 Q. And is that a property within Point Venture
2 Section Three-1?
3 A. Yes.
4 Q. And how long have you owned that property?
5 A. Since late October, I think, 2004.
6 Q. And are you a full-time or part-time resident
7 there?
8 A. I split my time, but it's my primary residence.
9 Q. When you are not residing there, do you rent
10 out that property?
11 A. Yes.
12 Q. And for what periods of time do you typically
13 rent it out?
14 A. Between two and 21 days.
15 Q. And how many years have you been renting it
16 out?
17 A. I began renting it last year -- mid-year of
18 2016.
19 Q. Were you provided with written notice of the
20 proposed amendment that is Plaintiff's Exhibit Number 3?
21 A. No.
22 Q. How did you learn about the proposed amount?
23 A. I received an e-mail from another resident
24 notifying me saying -- with a link to the web site.
25 Q. And did you know at that time who was proposing
36
1 the amendment?
2 A. No.
3 Q. Was -- have you ever been given an opportunity
4 to speak at a meeting regarding the proposed amendment?
5 A. No.
6 Q. Are you aware of the existence of an
7 architectural control authority within the subdivision?
8 A. Yes.
9 Q. And explain for the Court what your familiarity
10 is with that architectural control committee, what do
11 they do, and if you know any of the members.
12 A. I know that Stan Retriman is a member, and I
13 know that it is a committee created by way of the
14 owners' association, and that they have some broad
15 duties that include the review of development of plans
16 and building plans and administration of that.
17 Q. Are you aware of any architectural control
18 authority recommendation one way or the other related to
19 the proposed amendment that's Plaintiff's Exhibit Number
20 3?
21 A. There was none.
22 Q. Do you oppose the proposed amendment that is
23 Plaintiff's Exhibit Number 3?
24 A. I would not sign it.
25 Q. Are you familiar with the history -- with the
37
1 developer history out there in Point Venture?
2 A. Yes.
3 Q. Explain for the Court what your understanding
4 is of the developer history out there.
5 A. My understanding is that there were several
6 developers over time from the inception of the community
7 that experienced financial difficulties and some
8 bankruptcies with the final group of lots being vested
9 with the Point Venture POA which they disposed of to
10 private owners over time and they do not own anymore.
11 Q. So your understanding is that there are no --
12 that there is currently no developer as that term is
13 defined within the deed restrictions currently?
14 A. Correct.
15 Q. How would the proposed amendment, Plaintiff's
16 Exhibit Number 3, affect your property rights?
17 A. Well, I would be restricted from not only
18 short-term rentals, but it would restrict me from the
19 potential of renting on a longer term because I would
20 not be able to maintain a tenant in a holdover status on
21 a lease for month to month. And my property is
22 currently for sale which would impact the value because
23 it sets my title separate and different from others in
24 the neighborhood impacting the way it would be viewed by
25 the open market.
38
1 MR. GOTTFRIED: I'll pass the witness.
2 CROSS-EXAMINATION
3 BY MR. STERLING:
4 Q. Ms. Woodall, do you pay hotel tax?
5 A. Yes.
6 Q. In relationship to your short-term rental?
7 A. Yes.
8 Q. And have you been, in the past, an advocate for
9 regulation of short-term rentals?
10 A. I have advocated for the Village of Point
11 Venture to enforce ordnances for everyone and to
12 potentially permit STRs in the neighborhood through the
13 Village of Point Venture.
14 Q. And isn't it true that you said in a Point
15 Venture meeting, October 7, 2015, that you felt that
16 VRBOs are causing property values to decrease?
17 A. I don't recall if that was the total of my
18 statement. It may have been a part of a statement I
19 made which was lengthy.
20 Q. Okay. Would it surprise you that it's part of
21 a Point Venture minutes of that meeting?
22 A. The minutes of the meeting do not include my
23 full statement, which was submitted to the board and
24 asked to be appended to the minutes.
25 Q. But that is substantially something you said
39
1 during that meeting; is that correct?
2 A. They were the minutes approved by the board.
3 It's was not my full statement.
4 Q. Okay. Did you say that VRBOs would -- what
5 does VRBO mean?
6 A. Vacation rental by owner.
7 Q. Okay.
8 -- was causing property values to
9 decrease?
10 MR. GOTTFRIED: Objection, Your Honor,
11 asked and answered.
12 THE COURT: Sustained.
13 Q. (BY MR. STERLING) Were you aware of a
14 provision in the 1972 restrictions, Article -- Roman
15 Numeral 4 of 5 where it says, the renting or leasing of
16 any improvement thereon or a portion thereof without the
17 prior consent of the developer is prohibited?
18 A. I was provided with a copy of the deed
19 restrictions when I bought my first house in Point
20 Venture in 2002 and my second in 2004. I had not read
21 them until after the amendment was submitted. I had not
22 read them in sometime.
23 Q. And when you read them at the time that you
24 were called upon to think about what it actually says,
25 because of the existence of amendment being floated
40
1 around for signature, did you read that in the
2 restrictive covenants?
3 A. That paragraph was not the object of my focus.
4 Q. Okay. Were you aware that no lot of the
5 subdivision shall be used for commercial, business or
6 professional purpose nor for church purpose?
7 A. I have been aware --
8 MR. GOTTFRIED: Objection, Your Honor,
9 relevancy.
10 THE COURT: Overruled.
11 Q. (BY MR. STERLING) Were you aware that all lots
12 in the subdivision were to be used for single-family
13 residences purposes only?
14 A. Yes.
15 Q. Were you aware that no noxious or offensive
16 activity of any sort shall be permitted, nor shall
17 anything be done on any lot which may be or become an
18 annoyance or nuisance to the neighborhood?
19 A. Yes.
20 Q. Did you have a conversation with Janice Cox on
21 or about April 30, 2016, in which you indicated you were
22 going to join the other side, you were going to become a
23 joint short-term renter -- short-term business?
24 A. I don't consider it us or them.
25 MR. GOTTFRIED: Your Honor, I'm going
41
1 object to relevancy.
2 THE COURT: Overruled.
3 Q. (BY MR. STERLING) You can answer.
4 A. I do not consider it joining the other side. I
5 recall a conversation where I informed Janice that I was
6 going to begin using my house as a short-term rental.
7 Q. Was that the day of the -- of a man who was
8 dancing on a roof?
9 A. No. I really don't know.
10 MR. STERLING: Pass the witness.
11 THE COURT: Thank you.
12 REDIRECT EXAMINATION
13 Q. (BY MR. GOTTFRIED) Ms. Woodall, could I direct
14 your attention to Plaintiff's Exhibit Number 1?
15 MR. GOTTFRIED: Which is the plat, Your
16 Honor.
17 Q. (BY MR. GOTTFRIED) Can you point out to the
18 Court the section of that plat which is Point Venture,
19 Section Three-1?
20 A. Sure.
21 MR. STERLING: Could we approach, Your
22 Honor?
23 THE COURT: Yes, of course. Thank you.
24 THE WITNESS: It roughly is -- this is not
25 a complete plat because there are homes down here, but
42
1 it goes roughly down lake front and then it comes around
2 and comes back up here. And along this side all the way
3 up here through Kelly and along Venture Drive and back
4 down here. And my home is here. This is the defendant,
5 the Jacksons.
6 Q. (BY MR. GOTTFRIED) And where is the lake?
7 A. The lake is here. These are waterfront homes,
8 and the lake is here. This is very -- it's vertical.
9 MR. STERLING: Could I ask just one
10 question for clarity?
11 This is the whole of Section Three-1,
12 isn't it? Doesn't show anything else?
13 THE WITNESS: I believe that's correct. I
14 don't know where the Three-1 stops here on lake front,
15 you know, right along this road so I assume this to be
16 correct.
17 MR. GOTTFRIED: We'll pass the witness,
18 Your Honor.
19 MR. STERLING: I pass the witness.
20 THE COURT: All right. Thank you.
21 MR. GOTTFRIED: Your Honor, we have six
22 other witnesses, but I think we're going to rest.
23 THE COURT: All right. Let me let her get
24 off.
25 You may step down.
43
1 MR. GOTTFRIED: In light of the testimony
2 so far, I think we can dispense with the other
3 witnesses.
4 THE COURT: Yeah, but they paid for
5 parking down here and tried to find a spot.
6 MR. GOTTFRIED: If they really want to get
7 their time on the stand, I could do it.
8 THE COURT: It's entirely up to you.
9 MR. GOTTFRIED: We'll rest, Your Honor.
10 THE COURT: All right. Thank you.
11 Counsel.
12 MR. STERLING: Your Honor, I don't know
13 that we have anything further to put on because he
14 called our witnesses. I got what I wanted out of them.
15 THE COURT: Okay. Very good.
16 If you-all want to give me a closing
17 argument for this particular phase of this matter, I can
18 take it if you-all want to give it.
19 MR. SUTTON: Judge, I'd like to make a
20 brief closing. I need about five minutes.
21 THE COURT: All right. You're going to
22 need five minutes to do it or you need a five-minute
23 break?
24 MR. SUTTON: If you'd like to take a
25 break, I'm fine.
44
1 THE COURT: No, I'm good.
2 CLOSING ARGUMENT BY PLAINTIFF
3 MR. SUTTON: Okay. Judge, I'd like to
4 direction your attention to Plaintiff's Exhibit 2, which
5 is the deed restrictions.
6 What I'd like to do is orient you to the
7 two or three key provisions, and then I'm going to offer
8 you some cases that will guide you in your
9 interpretation this morning.
10 On page 2, number page 2 of the deed
11 restrictions is one of the clauses implicated today.
12 It's called the Duration clause. And I agree the title
13 of these provisions are not controlling.
14 And I will summarize that what the
15 Duration clause says is, first, for a 35-year period and
16 then on 10-year anniversaries thereafter, a majority of
17 owners -- not two-thirds, but just over 50 percent --
18 are empowered to change the provisions hereof in whole
19 or part.
20 So we know that there are circumstances
21 under which the percentage required is, I'm going to
22 say, 51 percent instead of 67 percent.
23 Now, I'm going to skip over a clause
24 that's on the next page and come back to it because I
25 want to stick to the subject matter of amendment.
45
1 If you go to the second to the last page
2 there is Article 9, IX, called Amendments. This is a
3 stand-alone clause which says that any or all of the
4 amendments may be annulled, amended, or modified at any
5 time at the recommendation of the architectural control
6 authority by a vote of two-thirds.
7 That is one sentence. Irrespective of the
8 35- and 10-year anniversaries, there is a separate
9 procedure involving architectural control authority
10 where a two-thirds vote suffices.
11 Now, we get into the difficulty which is
12 the next two sentences, which are stand-alone sentences.
13 All such lot owners shall be given 30 days
14 notice in writing of any proposed amendment before it is
15 adopted.
16 Then, finally, there shall be no
17 annulment, amendment, or modification of these covenants
18 without the prior recommendation of the architectural
19 control authority.
20 So we have two clauses which have -- I
21 will call complimentary provisions, but there is a
22 conflict as to the percentage required if you want to
23 call it a conflict.
24 This presents a problem for the Court
25 because you've got two clauses that deal with some of
46
1 the same subject matter. One of which imposes some
2 additional requirements. It is very easy, Judge, to
3 harmonize these provisions without resorting to any
4 tiebreaker rule. The harmonization is that there are
5 circumstances under which a lower voting threshold is
6 possible, and that's on these anniversary dates.
7 However, nothing in that first clause says, and you can
8 do that without notice or you can do that without the
9 recommendation of the architectural control authority.
10 To harmonize the two, you simply add those procedural
11 due process requirements to the first clause and,
12 thereby, you have given effect to every word in this
13 document.
14 I will cite to the Court the broad
15 principles announced in two cases as to how you
16 interpret deed restrictions. One is a case from --
17 And if I may, I'll give the Court copies
18 of these.
19 One is a case relating to deed
20 restrictions, particularly from 2015. It's called
21 Zgabay, Z-G-A-B-A-Y. And the other case called Forbau,
22 F-O-R-B-A-U.
23 And I will give opposing counsel copies of
24 these.
25 Summarized briefly, these two cases hold
47
1 as follows: Forbau, the older case, is a general
2 contract interpretation case. And it says that the
3 court needs to give effect to every provision in a
4 contract and specific clauses control over general. The
5 Zagbay case, a 2015 case, relates specifically to deed
6 restrictions. And this is an important case for the
7 third appellant district.
8 It says as follows: If the court finds
9 there is any ambiguity between two deed restrictions or
10 any ambiguity in deed restrictions, there is a
11 tiebreaker rule. The deed restricts are interpreted to
12 favor the free and unrestricted use of property.
13 Judge, you, therefore, have two ways to
14 answer the -- to interpret this conflict or this
15 harmonization in our favor. One, without resort to a
16 tiebreaker rule that you can harmonize the two
17 provisions. Second, that under the rule in Zgabay if
18 you have any doubt what to do, what you have to do is
19 favor the free and unrestricted use of property.
20 There is one narrow sense in which whether
21 leasing is allowed in this subdivision is relevant. And
22 the only sense in which it's relevant is as follows:
23 Does the amendment that has been put into evidence seek
24 to restrict property rights?
25 The reason that it does, Judge, is because
48
1 it expressly bans, without exception, rentals by
2 duration. A minimum duration of 90 days is required for
3 rentals.
4 And what I'll do is point to the Court to
5 another page of the deed restrictions, page 6, at the
6 bottom of the page.
7 Paragraph 5, the renting or leasing of any
8 improvements without the prior written consent of
9 developer is prohibited.
10 Well, let's state that another way.
11 Renting is allowed with the prior consent of the
12 developer. We don't have to address today whether
13 renting is, in fact, allowed. All the Court has to
14 address is whether the proposed amendment would restrict
15 renting to the extent it is allowed. And the answer is
16 plainly yes. The whole point of the amendment to the
17 deed restrictions is to restrict property rights.
18 Judge, if you have any doubt at all what
19 these two different provisions mean, if you find there's
20 an ambiguity or any doubt, you're going to interpret the
21 deed restrictions in favor of my clients, the rent for
22 short terms and who oppose the amendment.
23 Finally, Judge, I'd like to address a
24 procedural issue of what we have to show today for this
25 injunction.
49
1 This is on page 3, the Enforcement clause.
2 I believe that this is the broadest
3 enforcement clause I've ever encountered in 10 years of
4 HOA litigation. Probably explained by this being a
5 fairly old deed restrictions.
6 It says as follows, and I'll summarize:
7 Any attempted -- any violation or attempted violation is
8 subject to legal or equitable action. And it doesn't
9 say by an owner, but the implication is that someone
10 with standing can bring a case for damages or an
11 injunction.
12 And then it says, you can see either a
13 mandatory or prohibitory injunction for any violation or
14 attempted violation, and it is not a prerequisite to the
15 granting of an injunction to show inadequacy of the
16 legal remedy or irreparable harm.
17 The only thing my clients have to show
18 today to get an injunction is that the defendants have
19 violated or attempted to violate the restrictive
20 covenants by going out and getting an amendment --
21 seeking an amendment without written notice or
22 architectural control recommendation. Both of those
23 facts were established in the testimony.
24 The common law of Texas already provides
25 that irreparable injury need not be shown in any deed
50
1 restriction case in any event.
2 And I'll give the Court the authority for
3 that. What I've done is provided the Court with a newer
4 case, Reed versus Reed, which summarizes the state of
5 law as of 2016 on that.
6 The defendants are going to argue that the
7 rest -- the other requirement -- or the other allowance
8 of the deed restriction is that you can seek an
9 injunction without a showing of an inadequacy of legal
10 remedy. They're going to argue that that contract
11 clause is not enforceable. So to address that, I have a
12 case for the Court --
13 Excuse me just one minute, Judge.
14 I should say the defendants cite a case
15 from 1870 which has nothing to do with that issue. I
16 have two cases for the Court, more modern cases. One is
17 called Doyle and the other is called Inwood.
18 Judge, the Doyle and Inwood cases do as
19 follows: The Doyle case says that parties can agree by
20 contract to any remedy and if it doesn't violate public
21 policy, the courts will enforce it.
22 The Inwood case is really a watershed case
23 relating to just how much power homeowners associations
24 have under deed restrictions. And I will offer the
25 Court by analogy the following: The Texas Constitution
51
1 forbids foreclosures of homesteads. There are eight
2 enumerated exceptions.
3 There is no exception allowing a
4 homeowners association to foreclose a homestead and yet
5 the Texas Constitution is overridden by deed
6 restrictions because, as the Inwood case says, if a deed
7 restriction says that a homeowners association can take
8 your house away, the deed restrictions remedy controls.
9 I can't think of a stronger statement as
10 to how much power there is in recorded deed restrictions
11 as having your house taken away for not paying your
12 monthly assessment.
13 Defendants are going to argue that we
14 don't get the benefit of this enforcement clause, that
15 it's not enforceable because it somehow conflicts with
16 state law. That's simply not the case. This
17 enforcement clause should be enforced as written. The
18 only thing we have to prove today is that there is a
19 breach -- attempted breach of the deed restrictions.
20 Finally, Judge, the defendants have made
21 too much of the potential harm that they would suffer.
22 The injunction asks that any deed restriction -- that
23 any amendment that they may get a 51 percent vote for
24 not be recorded until final judgment. They may well get
25 their 51 percent vote, Judge. All we're saying is it
52
1 can't be recorded until this lawsuit has been decided so
2 that there won't be limitations on my client's rights,
3 clouds on their title, and most importantly, they won't
4 be subject to lawsuits by 20 or 30 or 40 or 50 owners
5 while they're renting to short terms.
6 Thank you, Judge.
7 THE COURT: Thank you.
8 Counsel.
9 CLOSING ARGUMENT BY DEFENDANT
10 MR. STERLING: Your Honor, I'm going to
11 kind of go -- work backwards of what counsel talked
12 about.
13 Last thing he said was about how
14 structuring the temporary injunction and that it's not
15 going to be that inconvenient, they can go on and get
16 their majority but that somehow just being prevented
17 from going ahead and filing it, recording it, is not
18 going to cause or cause any damage to my client. Well,
19 it will cause damage because it won't be effective.
20 It's going to change the effective date of it without
21 even getting an actual hearing on the merits.
22 It was going to be a situation -- if
23 they're ordered not to record it that they will end up
24 in a situation where they just want -- if they get it --
25 get the final amount of signatures they need, they'll
53
1 end up recording it in the next 10-year period and that
2 means it would be effective until the 10-year period
3 after that. And it seems to me that's a wrong way about
4 going about doing any kind of -- keeping and maintaining
5 the status quo. It's not doing that at all. At the
6 very least, it should have allowed us to go ahead with
7 it. You record it if you want to. You can even have an
8 injunction prohibiting people from enforcing it after
9 it's been recorded just so we could go ahead and get it
10 done.
11 They have a legal remedy, which is the
12 Declaratory Judgment Act, they can invoke. They do have
13 a legal remedy. And I think they ought to be compelled
14 to use that legal remedy itself. They can clearly get a
15 declaration that is void if that's what they want to do.
16 Now, there's been a lot of talk about not
17 having a chance to read everything counsel has given me.
18 But the way he structured his argument makes me think
19 that there is still not a direct case that says, gee
20 whiz, you can get rid of or you do not have to have a --
21 that fourth point of proof in a temporary injunction
22 situation involving restrictive covenants. That is,
23 showing of an inadequacy of your legal remedy. I think
24 that you do.
25 One of the things that I think that is --
54
1 I know I cited a case that's fairly old, but I like the
2 language in it and the language in it is basically that
3 your state is not really a party to the contract. The
4 case I cited was Moore versus Letchford. It's 19- or
5 1871.
6 But it basically is saying that while it's
7 required to give adequate process for the enforcement of
8 rights, you can't tie the state's hands on how they're
9 going to go about proving it.
10 And that's the point I'm trying to
11 basically say. They're basically changing the
12 evidentiary rules of the court, and I don't think they
13 get away with doing that by putting it in their contract
14 in the restrictive covenants.
15 Now, let's go, I think, to the situation
16 that I tried to raise, and I think there's evidence of
17 it in what you've heard. And that is, essentially,
18 you've got to come into the court with clean hands. And
19 they haven't come into court with clean hands. They
20 have shown and they have admitted that they're violating
21 certain restrictive covenants themselves. And it's
22 pretty clear that if they're saying, you know, gee whiz,
23 the only exception can be a developer and that
24 developer's rights aren't moving on to the HOA, then
25 they can't change it at all and renting at all.
55
1 And there are other things that they're
2 violating in terms of running a business on the lot.
3 They're running what amounts to annoyance or nuisance
4 activity on the lots. All of that is happening, and
5 they're violating all those things.
6 And the reason I brought them up in this
7 temporary injunction hearing is because these are all
8 centered around the issue about short-term rentals. And
9 in the situation where you're talking about the same
10 subject matter -- that's what we're talking about -- the
11 ultimate goal on both sides is fighting over the
12 existence or nonexistence and the continued existence of
13 short-term rental rights. And I think that you cannot
14 permit them to get a temporary injunction when their
15 hands are as dirty as they are in this situation.
16 So let's go, I think, now to actually
17 talking about the restrictive covenants.
18 Now, one of the things that counsel
19 referred to was a case. And one of the cases it cited
20 was Coker versus Coker, which is a Supreme Court case.
21 And it's cited by one of his references.
22 And that particular case is talking about
23 how you use contract interpretation rules on any
24 contract, not just a restrictive covenants contract.
25 And it's clear that the usual principles of contract
56
1 principles are supposed to be done by or applied by the
2 court to any contract which includes restrictive
3 covenants, which is just another form of a contract.
4 But one of the things it says, basically,
5 is that in harmonizing contract provisions, terms stated
6 earlier in an agreement must be favored over subsequent
7 terms. And our term is way in front of this contract.
8 The term they're pushing is way in the back of the
9 contract. It's possible to harmonize that without any
10 real problem at all, and harmonizing it is the developer
11 providing two separate methods of initiating and
12 providing for amendments or changes to the restrictive
13 covenants.
14 One is a grassroots method that's done
15 without voting where you have a majority of people
16 running around collecting signatures. Usually that's
17 going to be somebody like my clients pushing to get an
18 amendment of some sort. Essentially petitioning to get
19 their actual amendment. And there are -- if you read
20 the rules of the statutes about restrictive covenants,
21 there are provisions in there for doing exactly that.
22 Similar to what is being done -- provided for in the
23 1972 restrictions themselves.
24 And the 1972 restrictions were done before
25 those statutes probably even went into effect. So it's
57
1 showing that there's one way of doing it and then
2 there's going to be another way of doing it. And the
3 other way of doing it is doing it using the HOA or the
4 architectural control authority, essentially, which is a
5 committee, apparently, of the current HOA.
6 But you see the difference. One, it's got
7 -- one has bare majority. The other one has two-thirds.
8 One require as vote. The other one just requires
9 signatures. One requires notice. The other one doesn't
10 require notice. One requires -- and it would be
11 superfluous to have notice when you're running around
12 going to each person door to door trying to get them to
13 sign on to the actual instrument that you want to sign
14 or want to record.
15 And it doesn't require the architectural
16 control authority to give us permission or a
17 recommendation.
18 So it's just two separate things that work
19 separately, and you can harmonize it as being that.
20 Now, the thing that I'm concerned with is
21 one of the things that counsel said was because of the
22 type of amendment that we requested, which would
23 supposedly restrict the -- what is currently in the
24 restrictive covenants, which may not be exactly true.
25 It may actually be opening up if you ban all leasing and
58
1 we now have another thing that allows leasing or only
2 bans a portion of leasing. It seems to me that that is
3 opening up. But in any case, they're characterizing as
4 being restrictive.
5 But you're not supposed to be looking at
6 the amendment. You're supposed to be looking at --
7 because what they're fighting about is the amendment
8 processes. And it seems to me the one, if you're going
9 to look at it past trying to harmonize it, you're trying
10 to sit there and say which is the most restrictive.
11 Their's is the most restrictive. Their's
12 the one who ends up having everything go at two-thirds
13 majority, requiring the actual architectural control
14 authority to do a recommendation prior to getting on a
15 ballot of some sort. That's essentially much more
16 restrictive than what's allowed in the one allowing from
17 a majority of people and lot owners rising up as a group
18 and going ahead and signing off on an instrument that
19 changes and is recorded.
20 So either way you want to look at it, and
21 I think the proper way is to say that it's not really
22 ambiguous. I think it's pretty straightforward on
23 service. And if you use the normal contract principles,
24 look at the entire four corners of the document, and
25 apply the tiebreaker that I'm talking about, it's pretty
59
1 obvious that the one at the head of the line should be
2 given more favor. And we're not doing anything against
3 the other process. All it's doing is being allowed both
4 processes to work together.
5 So we urge the Court to deny the
6 injunction -- the temporary injunction for all the
7 reasons I've stated.
8 THE COURT: Thank you.
9 MR. SUTTON: May I have a brief minute
10 rebuttal, Judge?
11 THE COURT: Sure.
12 FURTHER ARGUMENT BY PLAINTIFF
13 MR. SUTTON: Regarding the defense of
14 unclean hands, here is why that argument is erroneous.
15 There is a confusion in the short-term
16 rental cases by people who oppose them, between an
17 owner's right to rent for any duration versus an owner's
18 breaches of restrictive covenants. And often you have
19 owners who have a right to rent for short terms who have
20 breached the restrictive covenants because they have
21 either caused nuisances or they have had over occupancy
22 violations. Any number of other actionable wrongs for
23 which there are damages and injunction as a remedy.
24 So the fact that an owner may have
25 violated a restrictive covenant would not mean that the
60
1 owner does haven't a property right. And so the error
2 in the analysis here by the defendants is to say that
3 unclean hands would prevent owners from having
4 procedural due process when it comes to amending the
5 deed restrictions.
6 I can't think of anything that would take
7 that right away from a homeowner unless they -- unless
8 that homeowner had actually themselves sabotaged the
9 amendment process. That's where the unclean hands
10 argument come in.
11 Second, the evidence was that the
12 defendants actually blocked us from having a voice in
13 this vote, and it's quite apparent why. If you believe
14 that deed restrictions are local, local government, that
15 they are constitutions for subdivisions, then the spirit
16 of this document is that everyone has a voice.
17 There is a process for them to be involved
18 when deed restrictions are being proposed. I suspect
19 that the architectural control authority will have some
20 words to say if a group of owners, without the
21 architectural control authority's recommendation, have
22 gone and recorded something. I guess we'll see if the
23 injunction is denied.
24 Finally, the Zgabay opinion relates not to
25 -- not merely to enforcement of a deed restriction in
61
1 favor of an owner, but specifically the free and
2 unrestricted use of property. And that's what has to be
3 born in mine.
4 Another aspect of Zgabay that applies here
5 is that my client's property right is partly bound up
6 with the procedural due process rights they have. They
7 have spent money on land, Judge. That land came with a
8 bundle of rights that are important to these people.
9 They are making rents on their property. The defendants
10 want to take that away without procedural due process.
11 I would ask the Court to keep that in mind for a group
12 of homeowners.
13 Thank you, Judge.
14 THE COURT: All right. Thank you.
15 FURTHER ARGUMENT BY DEFENDANT
16 MR. STERLING: Only thing I would add is
17 it's one thing to talk about procedural due process in a
18 situation about taking away, let's say, a home -- or a
19 HOA has accused you of violating something and you're
20 entitled to a hearing and that kind of stuff. But it's
21 another thing to be talking about procedural due process
22 in the sense of changing the amendments. That's not a
23 matter of due process in a judicial or semi-judicial
24 method.
25 It's basically, we're talking about two
62
1 different methods of changing a particular process.
2 They were aware of it when they bought their property.
3 They should have been aware of it. They are plain to
4 see to read both those two provisions. And the first
5 conclusion any reasonable personal would come to is both
6 those apply. One way -- I can do it this way, or I can
7 do it that way.
8 THE COURT: All right. Thank you.
9 All right. I always hate it when judges
10 kind of went off on a tangent when I was practicing law,
11 so I'm going to do that anyway.
12 I want to ask both attorneys this: Let's
13 say, hypothetically, provision comes up. Petition or a
14 request of the architectural control authority -- I know
15 you guys aren't saying ACA because you don't want to be
16 called the Affordable Care Act -- but anyway, the
17 architectural control committee looks at something, has
18 a proposal, has something but then it has to go through
19 two-thirds to be approved. That's about right.
20 But before they do that, they've got to
21 give a 30-day notice to those -- to everyone. Is that
22 about right?
23 Okay. So let's say they do that. And
24 that's approved. What next -- who files the instrument
25 with the property records? Is it signed under the ACA
63
1 or is it signed by -- how does that work procedurally?
2 MR. SUTTON: Judge, I believe I can
3 address that.
4 THE COURT: Okay.
5 MR. SUTTON: In this particular set of
6 deed restrictions, we don't have a mandatory HOA in
7 here. But there is this ACC. And the only thing that
8 it says about the ACC in that amendment process is that
9 it makes a recommendation. And that could be
10 recommendation for or against.
11 The recordation would be a list of
12 signatures attached to an amendment. And that signature
13 would be either 51 percent or two-thirds. And they
14 would be on the back of the recorded instrument.
15 THE COURT: All right. So is it your
16 argument, then, that after it's approved -- let's say
17 two-thirds agree and they bless the architectural
18 committee's or whatever, ACA, then those two-thirds have
19 to sign the document to get it filed, or does it revert
20 back to Provision 1-4 -- Section 1-4 where you then have
21 to go ahead and just get one-half of everyone to sign
22 off on it?
23 MR. SUTTON: Our position is that at the
24 stated tenure intervals of the first provision that a
25 relaxed majority requirement is required, and you would
64
1 only need 51 percent on that instrument. But outside of
2 those unusual periods, then it's two-thirds and attached
3 -- their signatures attached.
4 THE COURT: Okay. So that's you-all's
5 position.
6 What is your view on that?
7 MR. STERLING: My view is that I really
8 think that when it says recommendation, it means
9 favorable recommendation. Because I think most people
10 when they talk about you're recommending something, it's
11 favorable. If you're not recommending something, it's
12 unfair.
13 THE COURT: Okay.
14 MR. STERLING: So I disagree with him on
15 that.
16 And I think that, practically speaking,
17 that if you had a HOA run a vote on this thing and -- or
18 I should say the architectural control authority, I
19 would think the right thing to do would be to then to
20 file a document that had the amendment on it; cite that
21 it got, you know, 30 days notice; that they had the
22 vote; it was over two-thirds; and they certify to it
23 that the architectural control authority, and only the
24 architectural control authority, have to sign it and
25 record it. A lot simpler.
65
1 THE COURT: Do you think that under
2 Section 1, Paragraph 4 that you have to give notice to
3 all of the property owners?
4 MR. STERLING: No, I don't think so. I
5 think the reason why is that the whole process works
6 differently. You're taking your petition in your hand,
7 or whatever you're calling it, and you're going out and
8 essentially lobbying to get a signature lot by lot. And
9 once you reach your majority, you stop. You don't need
10 to go any further. So I don't think there's a question
11 about having any kind of a need for notice. You're
12 having to lobby each single time you do it.
13 THE COURT: Okay.
14 MR. STERLING: That's how you do regular
15 petitions.
16 THE COURT: All right. Thank you.
17 All right. I'm going take a 10-minute
18 break, and I'll be back at 10:45 and let you know.
19 Thank you.
20 MR. SUTTON: Judge, should I give you our
21 proposed order now?
22 THE COURT: Yeah, let me see.
23 Do you have one too?
24 MR. STERLING: I haven't seen it, and our
25 order would be denied.
66
1 THE COURT: Okay. That's fine. Thank
2 you.
3 (Court in recess.)
4 THE COURT: By the way, when do you guys
5 want to have this case set for trial? You have to do it
6 in 60 days.
7 MR. SUTTON: 60 days. I was thinking the
8 end of June. Does that fit with the window?
9 MR. STERLING: Yeah, probably can be done.
10 I would think somewhere end of June.
11 MR. SUTTON: I have vacation beginning
12 July 13th.
13 THE COURT: Okay.
14 MR. SUTTON: That third week in June, if
15 that's the square on the calendar.
16 THE COURT: That's a jury week.
17 MR. SUTTON: I have not pled for a jury.
18 MR. STERLING: No, I don't see any point
19 in a jury.
20 MR. SUTTON: We'll do bench.
21 THE COURT: So the third week of June is
22 actually a jury week.
23 MR. SUTTON: Forth week in June, then.
24 THE COURT: June 26th through the 30th.
25 MR. SUTTON: Agree.
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1 MR. STERLING: I'm sorry, what was it?
2 THE COURT: June 26th through the 30th is
3 there -- you guys probably don't have your calendars
4 with you.
5 MR. STERLING: I don't have it with me.
6 COURT'S RULING
7 THE COURT: All right.
8 All right. I thought you-all did a fine
9 job. I always appreciate good lawyering. So let me
10 tell all of you that you did fantastic. The
11 clientsshould be pleased no matter what the judge does.
12 I am concerned in the taking of property
13 rights without due process and without following
14 procedures that are set forth in governing documents for
15 a neighborhood or community. I spent quite a bit of
16 time on this yesterday reading the cases, reading what
17 have been submitted -- or, actually, I looked at yours
18 and then I just saw yours today. But to harmonize the
19 provisions, I think at this point the document -- the
20 deed restrictions, as they're written, provide a
21 process. And I don't think that's been followed.
22 And so, therefore, I'm granting the
23 temporary injunction as proposed by the plaintiff.
24 We're going to maintain the status quo.
25 MR. STERLING: Your Honor --
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1 THE COURT: Hold on.
2 A $10,000 bond that's been previously
3 filed will remain in effect. This will, essentially,
4 require -- will enjoin the defendants from going against
5 what I believe is required, giving 30 days notice, going
6 through the architectural control authority.
7 We're going to set the case for trial
8 during the week of June 26th through the 30th, 2017, on
9 agreement of counsel.
10 So, yes, this is prohibiting any further
11 -- well, it actually kind of speaks for itself as to
12 what can and can't be done. I've signed this. You-all
13 can get it filed.
14 And now, I'm sorry.
15 MR. SUTTON: Judge, Mr. Sterling has
16 raised an issue that I may not have written clearly that
17 the prior bond cash remain in effect. I wonder if you
18 would like to interline them.
19 MR. STERLING: Before you do, Your Honor,
20 I wanted an opportunity to at least say that I think
21 that a separate bond should be placed for this
22 particular temporary injunction. I think it ought to be
23 at least $10,000.
24 THE COURT: You want a separate bond, a
25 different bond? Any particular reason why?
69
1 MR. STERLING: I think that the stakes are
2 pretty high in this particular situation. And,
3 effectively, what the Court is doing is going to prevent
4 my client from ever getting this particular amendment in
5 effect for at least 10 years.
6 MR. SUTTON: Judge, I believe he should
7 have elicited testimony as to the dollar issues relating
8 to the bond and that was not done.
9 THE COURT: All right. I'm just going to
10 go ahead and interline this prior cash bond.
11 And if you-all will get together as to a
12 date in that week of June 26th through 30th, I can
13 actually sign a separate order if you-all want that.
14 Okay.
15 MR. SUTTON: Thank you, Judge.
16 THE COURT: All right. Thank you very
17 much.
18 (The proceedings were concluded.)
19
20
21
22
23
24
25
70
1 STATE OF TEXAS )
2 COUNTY OF TRAVIS )
3 I, Cathy Mata, Official Court Reporter in and for
4 the County Court at Law No. 1 of Travis County, State of
5 Texas, do hereby certify that the foregoing contains a
6 true and correct transcription of all portions of
7 evidence and other proceedings requested in writing by
8 counsel for the parties to be included in this volume of
9 the Reporter's Record, in the above-styled and numbered
10 cause, all of which occurred in open court or in
11 chambers and were reported by me.
12 I further certify that this Reporter's Record of
13 the proceedings truly and correctly reflects the
14 exhibits, if any, admitted, tendered in an offer of
15 proof or offered into evidence.
16 I further certify that the total cost for the
17 preparation of this Reporter's Record is $651.20 and was
18 paid/will be paid by Mr. James Patrick Sutton.
19 WITNESS MY OFFICIAL HAND this the 3rd day of May,
20 2017.
21
22 /s/ Cathy Mata
Cathy Mata, Texas CSR No. 6126
23 Expiration Date: 12/31/17
Official Court Reporter, County Court at Law No. 1
24 Travis County, Texas
P.O. Box 1748, Austin, Texas 78767
25 Telephone (512) 854-9252
Tab F
CAUSE NO. C-1-CV-17-001833
RICHARD W. JACKSON, § IN THE COUNTY COURT
LISA C. JACKSON, and §
KATHLEEN WOODALL, §
Plaintiffs, §
vs. § AT LAW NUMBER TWO OF
§
JANICE COX and HELEN RAMSEY, §
Defendants. § TRAVIS COUNTY, TEXAS
DEFENDANTS JANICE COX AND HELEN RAMSEY’S
FIRST AMENDED ANSWER AND SECOND AMENDED COUNTERCLAIM
Defendants Janice Cox and Helen Ramsey (hereinafter “Defendants”) file their First
Amended Answer and Second Amended Counterclaim, and respectfully show the Court as
follows:
GENERAL DENIAL
Pursuant to Rule 92 of the Texas Rules of Civil Procedure, Defendants generally deny each
and every allegation in Plaintiffs’ Petition (the “Petition”) and demand strict proof of all matters
set forth therein. Defendants specifically reserve the right to file amended pleadings in this case
in accordance with the Texas Rules of Civil Procedures and applicable orders of the Court.
DEFENSES
1. Plaintiffs’ claims are barred, in whole or in part, by the doctrine of unclean hands.
2. Plaintiffs’ claims are barred, in whole or in part, by the doctrine of estoppel,
including the doctrine of equitable estoppel.
Wherefore, Defendants respectfully request that (1) Plaintiffs take nothing by way of their
claims, (2) Defendants receive their costs of court, expenses, and attorneys’ fees expended in this
action; and (3) Defendants receive any further relief, at law or in equity, to which they may be
justly entitled.
COUNTERCLAIMS
I. FACTUAL BACKGROUND
1. Ms. Cox and Ms. Ramsey live in a residential neighborhood of Point Venture
Section 3-1, Texas (“Point Venture”). The properties in Point Venture are governed by the 1972
Restrictions that are recorded at Volume 4291 Page 1452, et seq. in the Official Records of Travis
County (“1972 Restrictions”). Ms. Cox and Ms. Ramsey moved to Point Venture for the quiet and
family oriented lifestyle the community offered. However, as transient rentals have become more
common in Point Venture, the quiet has been replaced with constant interference with and
disrespect for their rights as property owners and their enjoyment of their home.
2. The Jacksons own a house adjacent to Ms. Cox and Ms. Ramsey. The Jacksons
continually rent out their house as a party house for transient housing. The Jackson’s transient
renters have committed the following acts:
• Transient renters urinating and vomiting in front of their family;
• Being chased by transient renters on foot, late at night;
• Observing weekend parties with over thirty (30) guests playing music, singing karaoke
and dancing on the roof of the Jacksons’ house in the late night and early morning
hours;
• Transient renters throwing trash and beer cans onto their property;
• Transient renters trespassing onto their property;
• Persons entering onto their property from the Jacksons’ property and damaging it; and
• Intoxicated transient renters harassing both Ms. Cox and Ms. Ramsey on their own
property on multiple occasions.
2
Ms. Cox and Ms. Ramsey attempted to resolve the matter amicably by speaking with the Plaintiffs
and other Point Venture neighbors directly. Ms. Cox and Ms. Ramsey were met with hostility,
retaliation, and threats. The nuisance created by the Jacksons continued even after Ms. Cox and
Ms. Ramsey attempted to resolve the issue.
3. Previously, Kathleen Woodall opposed the operation of transient rentals in Point
Venture. At a Village Council meeting on October 7, 2015, Ms. Woodall expressed concern
regarding rental properties. Specifically, she suggested that the Village Council register rentals,
limit occupancy and cars, and implement cleaning requirements and a code of conduct. She also
expressed “VRBO’s are causing Property Values to decrease.” Ms. Woodall distributed a handout
outlining her concerns and suggestions. At a Village Council meeting on March 10, 2016, Ms.
Cox and Ms. Ramsey were present when Ms. Woodall told the Mayor she felt “there should be an
ordinance regulating the short-term rentals.” Ms. Woodall also sent out two e-mails in late 2015
and early 2016 discussing her on-going suggestions to regulate transient rentals through written
ordinances. Subsequently, Ms. Woodall began making her property available as a transient rental
and, conveniently her position on transient rentals changed.
II. COUNTERCLAIM: DECLARATORY JUDGMENT
4. The allegations in the preceding paragraphs are incorporated herein by reference.
5. There is a real and substantial justiciable controversy between the parties.
Defendants contend that Article I, ¶ 4 provides for the owners of a majority of lots in the
subdivision to have the power and authority to change the provisions of the 1972 Restrictions, in
whole or in part, by the execution and recordation of an instrument so changing the 1972
Restrictions. Plaintiffs incorrectly contend that Article I, ¶ 4 requires 30 days’ written notice in
3
writing to all lot owners and the prior recommendation from the Architectural Control Authority
before execution and recordation of the changing instrument.
6. Defendants seek a declaration that the 1972 Restrictions do not require that an
Article I, ¶ 4 changing instrument have 30 days’ written notice or an Architectural Control
Authority recommendation before its execution and recordation.
III. COUNTERCLAIM: BREACH OF CONTRACT
7. The allegations in the preceding paragraphs are incorporated herein by reference.
8. The 1972 Restrictions prohibit Plaintiffs from: (1) renting any of the improvements
on their lot without the prior written consent of the Developer; (2) using a lot for any commercial,
business, professional or church purpose; (3) using a lot for anything other than a single-family,
private residential purpose; (4) using a lot for anything other than single family residential
purposes; and (5) allowing noxious or offensive activity of any sort on their lot or allowing
anything to be done on their lot which may be or become an annoyance or nuisance to the
neighborhood.
9. Plaintiffs have breached the 1972 Restrictions. As a result of Plaintiffs’ breaches
of contract, Defendants have been damaged in an amount within the jurisdiction of this Court.
10. All conditions precedent have been satisfied.
IV. COUNTERCLAIM: INVASION OF INTEREST IN PRIVATE
ENJOYMENT OF PROPRTY/NUISANCE (Jacksons only)
11. The allegations in the preceding paragraphs are incorporated herein by reference.
12. Ms. Cox and Ms. Ramsey have a right to use and enjoy their home. Plaintiffs have
substantially interfered with their interest and right to use and enjoy their home. Plaintiffs’ actions
constitute a nuisance.
4
13. Plaintiffs’ actions are negligent or intentional. As a result, Defendants have been
damaged in an amount within the jurisdiction of this Court.
V. COUNTERCLAIM: WRONGFUL INJUNCTION
14. The allegations in the preceding paragraphs are incorporated herein by reference.
15. Pursuant to Article I, Section 4 of the 1972 Restrictions, Defendants were
attempting to change the 1972 Restrictions to prohibit rentals for less than ninety days. This
change would have put Plaintiffs out of the business of transient rentals.
16. Although one of the Plaintiffs testified at the temporary injunction hearing,
Plaintiffs failed to inform the Court that one of the Plaintiffs had sent a letter and a flyer opposing
the change to everyone in Point Venture Section 3-1. Everyone, except for the probable and
notable exceptions of Ms. Cox and Ms. Ramsey received the letter and flyer. Plaintiffs’ mailing
included the change to the 1972 Restrictions. The letter and flyer opposing the change was sent
out on February 2, 2017.
17. Plaintiffs’ opposition did not work - It was clear that the will of the people was to
stop the nuisances created by the transient rental business. Plaintiffs realized that the money from
their $900-plus nightly rental incomes was about to end. That is when Plaintiffs filed this lawsuit
- three weeks after sending out the letter and flyer to try and stop people from signing the change
to the 1972 Restrictions.
18. Previously, Plaintiffs obtained a temporary restraining order and temporary
injunction to prevent the change and protect their business. In both instances, Plaintiffs’ sole
complaint was that Defendants failed to meet the (1) notice and (2) ACC approval requirements in
Article IX of the 1972 Restrictions. Because Defendants were following the procedure in Article
I, Section 4 of the 1972 Restrictions – which does not include these requirements and has different
5
requirement – Plaintiffs argued that the requirements in Article IX of the 1972 Restrictions should
be copied and pasted into Article I, Section 4 of the 1972 Restrictions. Plaintiffs made this
complaint while admitting (1) Article IX is a “standalone” amendment provision while (2) Article
I, Section 4 is a “separate” provision that allows a “majority of owners to amend the deed
restrictions upon the 35th anniversary of their adoption and every ten years thereafter.”
19. On November 17, 2017, the Court denied Plaintiffs’ motion for partial summary
judgment concerning this issue and granted Defendants’ motion for partial summary judgment on
this same issue.
20. The temporary restraining order and temporary injunction were issued or
perpetuated when they should not have been. On information and belief, the temporary injunction
will be dissolved.
21. As a result of Plaintiffs’ obtaining the temporary injunction, Defendants have been
injured and seek recovery for such injury. Furthermore, Defendants ask that the Court award
Defendants additional damages in the amount of the temporary restraining and temporary
injunction bond or otherwise rule that the bond be recovered by Defendants. Finally, if the Court
deems it necessary, Defendants request equitable or other relief in the form of time to file the
change to the 1972 Restrictions or some other form to cure any harm caused to Defendants.
VI. REQUEST FOR PERMANENT INJUNCTION
22. The allegations in the preceding paragraphs are incorporated herein by reference.
23. Defendants seek a permanent injunction against the Jackson's continued operation
of their property for their transient rental business.
6
VII. REQUEST FOR ATTORNEYS’ FEES, INTEREST, AND COSTS
24. Pursuant to Texas law, Chapter 38 of the Texas Civil Practice and Remedies Code
and Section 5.006 of the Texas Property Code, Defendants seek to recover their reasonable
attorneys’ fees and costs, including reasonable fees for the cost of successfully making or
responding to an appeal to the court of appeals and the Texas Supreme Court. All conditions
precedent for the recovery of attorneys' fees have been met.
25. Defendants are also entitled to his costs incurred in this action pursuant to Rule 131
of the Texas Rules of Civil Procedure.
26. Furthermore, Defendants request that they be awarded prejudgment and post-
judgment interest to which they are entitled under the law.
VIII. CLAIMS FOR RELIEF
27. Pursuant to Rule 47 of the Texas Rules of Civil Procedure, Defendants are seeking
monetary relief over $100,000 but not more than $200,000 and non-monetary relief.
IX. JURY DEMAND
28. Defendants have requested a trial by jury and paid the requested fee.
X. PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Defendants respectfully request the
following relief:
(1) that this matter be set down for trial by jury;
(2) that the Court grant a declaration that the 1972 Restrictions do not require that an
Article I, ¶ 4 changing instrument have 30 days’ written notice or an Architectural
Control Authority recommendation before its execution and recordation;
7
(3) that the Court grant Defendants' application for a permanent injunction prohibiting
Plaintiffs from using their lot for a transient rental business;
(4) that the Court award Defendants all damages they have sustained as a result of
Plaintiffs’ conduct;
(5) that the Court award Defendants additional damages in the amount of the temporary
restraining and temporary injunction bond or otherwise rule that the bond be
recovered by Defendants;
(6) that the Court award Defendants additional damages in the amount of the temporary
restraining and temporary injunction bond or otherwise rule that the bond be
recovered by Defendants;
(7) that, if the Court deems it necessary, the Court award Defendants equitable or other
relief in the form of additional time to file the change to the 1972 Restrictions or
some other form to cure any harm caused to Defendants.
(8) that the Court award prejudgment and post-judgment interest;
(9) that the Court award Defendants their reasonable attorneys’ fees as permitted by
law, including reasonable fees for the cost of successfully making or responding to
an appeal to the court of appeals and the Texas Supreme Court;
(10) that the Court award Defendants their costs, including costs of court; and
(11) for all such other relief, at equity or otherwise, to which Defendants may show
themselves entitled.
8
Respectfully submitted,
/s/ Michael L. Navarre
Michael L. Navarre
State Bar No. 00792711
BEATTY BANGLE STRAMA, PC
400 West 15th Street, Suite 1450
Austin, Texas 78701
(512) 879-5050 Telephone
(512) 879-5040 Facsimile
mnavarre@bbsfirm.com
ATTORNEYS FOR DEFENDANTS
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing instrument was electronically
served on counsel of record by email on this 1st day of December, 2017:
James Patrick Sutton – via jpatricksutton@jpatricksuttonlaw.com
The Law Office of J. Patrick Sutton
1706 W. 10th St.
Austin, Texas 78701
Mr. David M. Gottfried – via david.gottfried@thegottfriedfirm.com
The Gottfried Firm
West Sixth Place
1505 West Sixth Street
Austin, Texas 78703
/s/ Michael L. Navarre
Michael L. Navarre
9