in Re Richard W. Jackson and Lisa C. Jackson

ACCEPTED
03-17-00849-CV
21317390
THIRD COURT OF APPEALS
AUSTIN, TEXAS
12/15/2017 10:54 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 10:54:45 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

Amended Petition for Writ of Mandamus

J. Patrick Sutton
SBOT 24058143
1706 W. 10th Street
Austin Texas 78703
Tel. (512) 417-5903
Fax. (512) 355-4155
jpatricksutton@
jpatricksuttonlaw.com
Counsel for Relators

Oral Argument Not Requested
 IDENTITY OF PARTIES AND COUNSEL

Relators: Richard W. Jackson and Lisa C. Jackson
Respondent: The Honorable Todd Wong, 1000 Guadalupe Street,
Room 206, Austin, Texas 78701. Ph. (512) 854-
9241.

Real Parties Janice Cox and Helen Ramsey
In interest:

Counsel for Relator in the appeals court:
J. Patrick Sutton
SBOT 24058143
1706 W. 10th Street
Austin Texas 78703
Tel. (512) 417-5903 / Fax (512) 355-4155
jpatricksutton@
jpatricksuttonlaw.com

Counsel for Relator in the trial court:

J. Patrick Sutton David M. Gottfried
SBOT 24058143 State Bar of Texas No. 08231200
1706 W. 10th Street 1505 West Sixth Street
Austin Texas 78703 Austin, Texas 78703
Tel. (512) 417-5903 Tel. (512) 494-1481
Fax (512) 355-4155 Fax (512) 472-4013
jpatricksutton@ david@davidgottfriedlaw.com
jpatricksuttonlaw.com

Counsel for Real Party in Interest:
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

i
 TABLE OF CONTENTS

INDEX OF AUTHORITIES ..................................................................... iii

STATEMENT OF THE CASE .................................................................... 1

STATEMENT OF JURISDICTION ........................................................... 1

ISSUE PRESENTED .................................................................................. 1

STATEMENT OF FACTS .......................................................................... 2

ARGUMENT ............................................................................................... 4

I. Standard of Review .......................................................................... 4

II. The Trial Court Abused Its Discretion .............................................. 5

III. The Jacksons Lack an Adequate Remedy by Appeal ...................... 6

IV. Remedies Appropriate by Mandamus .............................................. 7

PRAYER FOR RELIEF .............................................................................. 8

RULE 52.7(a)(2) STATEMENT AS TO EVIDENCE ................................ 8

RULE 52.3(j) CERTIFICATION ................................................................ 8

CERTIFICATE OF SERVICE .................................................................... 9

CERTIFICATE OF COMPLIANCE ........................................................... 9

APPENDIX TO PETITION FOR WRIT OF MANDAMUS .................... 10

ii
 INDEX OF AUTHORITIES

CASES

In re Olshan Found. Repair Co., 328 S.W.3d 883 (Tex. 2010) .......... 4

In re Prudential Ins. Co. of Am., 148 S.W.3d 124 (Tex. 2004) .......... 5

In re Reece, 341 S.W.3d 360 (Tex. 2011) (orig. proceeding) ............... 4

In re Team Rocket, L.P., 256 S.W.3d 257 (Tex. 2008) ......................... 4

In re United Scaffolding, Inc., 301 S.W.3d 661 (Tex. 2010) .............. 4

Murphy v. McDaniel, 20 S.W.3d 873 (Tex. App. – Dallas 2000, no
pet.) .......................................................................................................... 5

State v. Walker, 679 S.W.2d 484 (Tex. 1984) (orig. proceeding) ... 6, 7

STATUTES

Tex. Civ. Prac. & Rem. Code § 51.014 ................................................... 6

iii
 STATEMENT OF THE CASE
Nature of the case: In a suit to construe the meaning of
restrictive covenants, the relators
obtained a temporary injunction
barring the real parties in interest
from recording an amendment to the
restrictive covenants. Months after the
time for an interlocutory appeal of the
injunction expired, the real parties in
interest sought an order dissolving the
temporary injunction.
Respondent: The Honorable Todd Wong, County
Court at Law No. 1, Travis County,
Texas.
Ruling Assailed: On December 8, 2017, the trial court
granted the motion to dissolve the
injunction despite the movants’ failure
to offer any evidence of a change in
circumstances after the injunction was
issued.

STATEMENT OF JURISDICTION
Texas Government Code § 22.221(b)(1) provides jurisdiction.

ISSUE PRESENTED
If a party seeking to dissolve a validly-obtained temporary
injunction did not timely appeal the temporary injunction yet
offers no evidence of a change of circumstances after the injunction
was issued, is it a clear abuse of discretion for the trial court to
dissolve the injunction?

1
 REASON FOR AMENDMENT

This Amended filing adds facts concerning the recordation

of a written instrument by the real parties in interest along with

a complete copy of said instrument, with signature pages, at

Appendix Tab D.

STATEMENT OF 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 the 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

dissolve the injunction. 4 The sole basis for their motion was that

1 App. E (Plaintiffs’ Exhibit 1 thereto).
2 App. A.
3 App. F.
4 App. B.

2
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 7,

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

purported owner ratification as late as November and December,

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
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

I. Standard of Review
Mandamus relief is appropriate when a trial court clearly

abuses its discretion and there is no adequate remedy at law. . A

trial court clearly abuses its discretion when it reaches a decision

that is arbitrary and unreasonable such that it amounts to a clear

and prejudicial error of law or when it fails to correctly analyze or

apply the law. In re Olshan Found. Repair Co., 328 S.W.3d 883,

888 (Tex. 2010) (orig. proceeding). An erroneous legal conclusion,

even in an unsettled area of law, is an abuse of discretion. In re

United Scaffolding, Inc., 301 S.W.3d 661, 663 (Tex. 2010) (orig.

proceeding).

Whether there is an adequate appellate remedy is determined

by balancing the benefits of mandamus review against the

detriments. In re Team Rocket, L.P., 256 S.W.3d 257, 262 (Tex.

9 Tab D (signature pages).

4
2008) (orig. proceeding). In that balancing, the court considers

whether mandamus will “preserve important substantive and

procedural rights from impairment or loss, allow the appellate

courts to give needed and helpful direction to the law that would

otherwise prove elusive in appeals from final judgments, and spare

private parties and the public the time and money utterly wasted

enduring eventual reversal of improperly conducted proceedings.”

In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 136 (Tex. 2004)

(orig. proceeding).

II. The Trial Court Abused Its Discretion

As the authority relied upon by Ramsey and Cox in their

motion to dissolve the temporary injunction holds, the movant

must prove that a change in circumstances arose after the

injunction was entered. See Murphy v. McDaniel, 20 S.W.3d 873,

877 (Tex. App. – Dallas 2000, no pet.). However, an interlocutory

ruling on the merits of a case is not, in and of itself, a “change in

circumstances” authorizing dissolution of an otherwise properly

obtained temporary injunction. Id. at 878. This legal framework

prevents a party who failed to appeal an order granting a

5
temporary injunction from doing so belatedly, and from getting an

advance ruling from the court of appeals on the merits of a claim

prior to final judgment. Id. at 877-879.

The sole basis for Ramsey and Cox’s motion to dissolve the

temporary injunction was their obtaining of an interlocutory

summary judgment order favorable to them on the merits. They

presented no evidence at all of any change in circumstances.

Accordingly, the trial court clearly abused its discretion in

granting the motion to dissolve the temporary injunction.

III. The Jacksons Lack an Adequate Remedy by Appeal

Where a party has already established the validity of a

temporary injunction, it is improper to force that party to re-

establish the injunction’s validity prior to final judgment in the

case. State v. Walker, 679 S.W.2d 484, 485 (Tex. 1984) (orig.

proceeding).

Ramsey and Cox could have appealed the temporary

injunction order but did not. See Tex. Civ. Prac. & Rem. Code §

51.014(a)(4). Instead, they waited many months and, on the eve of

trial, sought to force the Jacksons’ to relitigate the early 2017

6
evidentiary injunction hearing. The Jacksons cannot seek an

appeal of the validity of the original injunction, so mandamus is

the appropriate remedy.

In addition, the Jacksons engage in leasing that Ramsey and

Cox’s recorded amendment would ban, and they have leases in

force. The amendment is a direct threat to their property rights

and contracts. It provides a basis for Ramsey and Cox to seek legal

and equitable relief in the trial court that they should not have

been entitled to seek at all had the injunction not been wrongfully

procured. Expensive, wasteful new proceedings directly stemming

from a clear abuse of discretion by the trial judge will be the

result.

IV. Remedies Appropriate by Mandamus

The order dissolving the injunction must be vacated and the

injunction reinstated. See State v. Walker, 679 S.W.2d at 486. The

Jacksons are simultaneously seeking emergency relief to stay the

trial court’s order in both their interlocutory accelerated appeal

and in this original proceeding.

7
 PRAYER FOR RELIEF

This Court should grant Relators the Jacksons’ petition for a

writ of mandamus and direct the trial court to vacate its December

8, 2017 order dissolving the temporary injunction and to reinstate

the injunction. The Court should remand the case consistent with

the above and grant any other relief to which the relator may be

justly and in fairness entitled.

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

RULE 52.7(a)(2) STATEMENT AS TO EVIDENCE
In the trial court, the real party in interest put it no evidence
in support of its motion to dissolve the temporary injunction. A
record was made of the arguments of counsel at the hearing.

RULE 52.3(j) CERTIFICATION
I have reviewed the petition and concluded that every factual
statement in the petition is supported by competent evidence
included in the appendix or record.
/s/ J. Patrick Sutton
J. Patrick Sutton

8
 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

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 also complies with the word-
count limitations of Tex. R. App. P. 9.4(i), if applicable, because it
contains 1089 words, excluding any parts exempted by Tex. R.
App. P. 9.4(i)(1).

/s/ J. Patrick Sutton
Attorney for Relator

9
 No. 03-17-________-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 (without signature pages) Tab D

Transcript of March 9, 2017 injunction hearing Tab E

10
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.
 67

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 --
 68

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